Pere Jarboe v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION 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 Chairman

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. § 7521. 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 this complaint before the Board,

(2) address the respondent’s additional argument regarding the potential

disqualification of the presiding administrative law judge (ALJ), and (3) clarify

that the agency has discretion 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 and 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 work 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 failure to follow instructions, the agency specified that

the respondent failed to follow instructions to provide a plan for managing a

subordinate employee’s work and that he failed to 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 specifications 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 cause

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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 respondent 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

Secretary 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 argument 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 presenting 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, given

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that the respondent 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 was 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. Moreover, as we recently clarified in

Social Security Administration v. Levinson, 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 as 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 has

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¶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) (an

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 before 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 penalty in a case 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 penalty 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 it to do so. See Levinson, 2023 MSPB 20,

¶¶ 37-38. The 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. See 5 C.F.R. § 1201.140(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 that the respondent has not shown that the presiding ALJ lacked delegated

authority.

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previously have stated otherwise, we hereby overrule those decisions in part with

regard to this issue.

¶10 It remains the case, however, that in original jurisdiction cases under

5 U.S.C. § 7521, when determining whether good cause exists to take the

agency’s requested action, the Board considers the factors articulated in Douglas

v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1980). Levinson,

2023 MSPB 20, ¶¶ 41-49; Long, 113 M.S.P.R. 190, ¶¶ 47-54; 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 counseling. ID at 85. Thus, in

weighing the relevant aggravating and mitigating factors, the presiding ALJ found

that the respondent’s lack of prior discipline was a significant mitigating factor.

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 relationship 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 regarding 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 Securities 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 his

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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 respondent reiterates several of the grounds

for disqualification 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.

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knowing all the facts, would question the judge’s impartiality. In

applying this standard, it is critically important 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 professional organization, would lead a reasonable person 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 that 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 authority to remove the

respondent. See 5 U.S.C. § 7521(a) (providing that “the agency in which the

9

administrative law judge is employed” may take an action against an ALJ only

upon a finding of good cause by the Board). 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 Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 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 to 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

appropriate 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 applicable 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 address:

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) Judicial 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 discrimination. If so, you may obtain

11

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 submit 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. 20013

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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. Court 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.

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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 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.