On August 4, 2022, the Merit Systems Protection Board issued its decision in Baker v. Social Security Administration, 2022 MSPB 27. In it, the Board clarified the standards for when MSPB administrative judges should recuse themselves from cases.
Ms. Baker was a paralegal working for Social Security Administration’s National Hearing Center (NHC) in Chicago, who raised claims of whistleblower reprisal; after the Office of Special Counsel declined to prosecute, Ms. Baker then filed her whistleblower reprisal claims with the MSPB on an Independent Right of Action (IRA). During the prehearing conference, the administrative judge announced that he had an “ongoing personal relationship” with an attorney who worked in Ms. Baker’s office. The administrative judge stated that he did not believe the relationship would affect his impartiality in the appeal, but gave the parties the opportunity to move for recusal. Ms. Baker’s motion for recusal was denied, and the administrative judge further denied her motion to stay the case and appeal the recusal issue to the Board on an ‘interlocutory appeal’ under 5 C.F.R. §§ 1201.42(c), 1201.91-1201.93 (a special procedure for appealing major issues to the Board in the middle of the hearing process rather than waiting to raise the issue on petition for review after the administrative judge issues an initial decision on the case). The administrative judge then held a hearing and issued an initial decision in favor of the agency. Ms. Baker then appealed that decision to the Board.
The Board reversed, finding that the administrative judge should have recused himself based on the record below. The Board relied on the recusal standards for federal judges found in 28 U.S.C. § 455, which calls for recusal in any proceeding where a judge’s impartiality “might reasonably be questioned.” Here, Ms. Baker had alleged that the other attorney was in a romantic relationship with the administrative judge. As the Board noted, the attorney whom the administrative judge was in an ongoing personal relationship with “(1) she was one of only two attorneys working for a particular ALJ at the Chicago NHC, (2) the other two members of her working group were the subject of or recipient of the appellant’s alleged disclosure, and (3) all three employees had negative views of the appellant, according to evidence submitted by the agency.” The Board found that this could constitute grounds for a reasonable person to question the administrative judge’s impartiality, and that the record contained insufficient additional information from the administrative judge to ameliorate those concerns. Accordingly, even though the Board did not find that the administrative judge showed any actual bias, it found the administrative judge erred by failing to recuse himself. Accordingly, the Board vacated the initial decision and remanded for a new hearing before a new administrative judge lacking conflicts.
If you are a federal civil service employee or federal contractor and require legal guidance concerning a whistleblower reprisal claim, are seeking legal representation any other matter before the Merit Systems Protection Board, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.
