Douglas W. Abruzzo v. Social Security Administration

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DOUGLAS W. ABRUZZO,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2011-3218
__________________________
Petition for review from the Merit Systems Protection
Board in case no. CB7521100014-T-1.
___________________________
Decided: July 16, 2012
___________________________
D OUGLAS W. ABRUZZO, of Orlando, Florida, pro se.
ALLISON K IDD -M ILLER, Senior Trial Attorney, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. D AVIDSON , Director, and
TODD M. H UGUES , Deputy Director.
__________________________

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ABRUZZO v. SSA 2
Before RADER , Chief Circuit Judge, CLEVENGER and
REYNA, Circuit Judges.
PER CURIAM.
Mr. Douglas W. Abruzzo (“Abruzzo”) is a former Ad-
ministrative Law Judge (“ALJ”) with the Social Security
Administration (“SSA”). The SSA charged Abruzzo with
failure to follow instructions and conduct unbecoming an
ALJ, all of which were detailed in twenty-four specifica-
tions. Abruzzo appeals the final decision of the Merit
Systems Protection Board (“MSPB” or “Board”) which
sustained each charge and found good cause to remove
him from his ALJ position. See Soc. Sec. Admin. v.
Abruzzo, No. CB-7521-10-0014-T-1, 2011 MSPB LEXIS
4752, at *11 (M.S.P.B. Aug. 3, 2011). Because we find the
Board’s determination is supported by substantial evi-
dence, not an abuse of discretion, and otherwise according
to law, we affirm.
I. Facts
A. Background
As an ALJ, Abruzzo conducted hearings and issued
decisions in disability matters in a Florida SSA Office of
Disability Adjudication and Review, serving from 2004
until his removal in 2011. This proceeding originated on
March 2, 2010, with the filing of a complaint signed on
behalf of the SSA by its Chief Judge, Frank A. Cristaudo.
The SSA sought to remove Abruzzo from his ALJ posi-
tion based on the following four charges: (I) failure to
follow instructions; (II) failure to follow a direct order to
treat his coworkers and the public with courtesy; (III)
conduct unbecoming an ALJ; and (IV) failure to follow a
direct order to conduct scheduled hearings. Supporting

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ABRUZZO v. SSA 3
these charges, twenty-four specifications were detailed,
giving examples of the conduct alleged.
Pertaining to charge one, failure to follow instruc-
tions, three specifications allege that Abruzzo’s supervi-
sors ordered him to stop directly contacting sources for
test data and to correct at least three portions of his
standard pretrial order that failed to comply with SSA
regulations and policy.
Pertaining to charge two, failure to follow a direct or-
der to treat coworkers and the public with courtesy, seven
specifications allege that Abruzzo acted offensively and
failed to conduct himself with propriety. For example,
Abruzzo warned employees of the potential for harm from
supervisors, likened the management of the office to
“Nazis,” and stated that the director would send people to
gas chambers. In addition, numerous e-mail messages
from Abruzzo, many copied to other SSA employees,
contain personal and derogatory comments about superi-
ors, such as claiming the director has “neo-Nazis” atti-
tudes.
Pertaining to charge three, conduct unbecoming an
ALJ, specifications five and six dealt with an incident in
early-April 2009. Abruzzo was allegedly observed by
employees painting with an oily substance what appeared
to be the sign of the cross above the office doors of Hear-
ing Office Chief ALJ (“HOCALJ”) Barbeito and Director
James. The unknown substance soon began to drip onto
the office floor, and caused a great disruption because it
was uncertain whether it posed a danger. HOCALJ
Barbeito was “stunned” and “frighten[ed],” Director
James was “terrified,” and other staff members were
“fearful.” See Soc. Sec. Admin. v. Abruzzo, No. CB-7521-
10-0014-T-1, 2010 MSPB LEXIS 5624, at *71-77

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ABRUZZO v. SSA 4
(M.S.P.B. Sept. 29, 2010). HOCALJ Barbeito explained
that the staff was “speaking amongst themselves . . . and
they were very concerned.” Id. at *73. Abruzzo explained
that he had used “blessed oil” because he believed that
HOCALJ Barbeito and Director James “were under the
influence of evil at that particular time.” Id. at *76.
Regional Chief ALJ (“RCALJ”) Garmon ordered Judge
Abruzzo “not to put anymore substance [sic] of any kind”
on Federal property. Id. Notwithstanding this order, four
days later Abruzzo was again observed painting with an
oily substance above his own door while purportedly
“speaking in tongues.” Id. This behavior further alarmed
co-workers and SSA placed additional security officers at
the building in response. Eight other specifications were
added under this charge, essentially asserting that the
same facts alleged under charge two also demonstrated
conduct unbecoming an ALJ.
Pertaining to charge four, failure to follow a direct or-
der, three specifications allege that Abruzzo refused to
conduct scheduled hearings, claiming that he was too
occupied responding to the complaints lodged against him
by the SSA. Despite being ordered by HOCALJ Barbeito
to conduct the hearing as scheduled, Abruzzo refused.
B. Initial and Final Determinations
The parties engaged in full discovery on the charges
and specifications, and were allowed to introduce evi-
dence, examine and cross-examine witnesses, and file
briefs. A trial began on July 27, 2010, and lasted several
days. The ALJ issued an initial decision September 29,
2010.
Regarding charge one, Abruzzo did not dispute the
factual assertions that he circumvented the chain of

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ABRUZZO v. SSA 5
command in obtaining data or that he failed to correct his
pretrial order. He argued instead that his judicial inde-
pendence was impinged by such SSA orders. The ALJ
determined that the superiors’ orders to Abruzzo were
lawful, and sustained the charge, finding that it alone
established good cause for removal. Id. at *33.
Regarding charge two, Abruzzo did not dispute his
conduct relating to discourtesy to co-workers and lack of
propriety, asserting only that he did not know what
standard he was required to meet. The ALJ found that
Abruzzo did know and understand generally accepted
rules of conduct and that his remarks were discourteous
and offensive. The ALJ again sustained the charge. Id.
at * 70.
Regarding charge three, Abruzzo again did not dis-
pute the facts relating to his conduct, including the al-
leged incidents of April 2009. The ALJ found that
It is clear Judge Abruzzo's admitted conduct, as
outlined above, clearly constitutes conduct unbe-
coming an administrative law judge.
Judge Abruzzo’s actions, whether intended or not,
instilled fear and terror into the work place. His
actions, for which he alone is responsible, caused
interruptions in the operation of the office. Many
staff hours, both Hearing and Regional staffs were
expended attempting to resolve these incidents.
Additional security was even necessary and abso-
lutely no justification exists for Judge Abruzzo’s
conduct. Judge Abruzzo not only engaged in the
conduct on April 3, 2009, but, even after being
told not to engage in such conduct, returned to

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ABRUZZO v. SSA 6
work on April 7, 2009 and proceeded to engage in
the same conduct again.
Judge Abruzzo’s actions on April 3, and 7, 2009
were very serious and disruptive and standing
alone constitute good cause for discipline up to
and including removal.
Id. at *77-78. The ALJ found further that several specifi-
cations overlapping with the incidents from count two
also supported finding conduct unbecoming an ALJ. Id.
at *71.
Regarding count four, Abruzzo did not dispute his
conduct. He challenged HOCALJ Barbeito’s authority to
make the order, and explained that he would not have
had the disposition necessary to conduct a hearing at that
time. The ALJ, sustaining the count, stated: “Judge
Abruzzo has an irrational perception that he is not subject
to any orders or directives from the hearing office chief . .
. .” Id. at *91.
The ALJ found that the SSA had established, by pre-
ponderant evidence, good cause to remove Abruzzo from
his position as ALJ. The full Board affirmed each of the
four charges in a final order issued August 3, 2011. The
Board found that there was no new, previously unavail-
able, evidence adduced, and that the ALJ made no error
of law. Accordingly, the Board denied Abruzzo’s petition
for review. Abruzzo 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).

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ABRUZZO v. SSA 7
II. Discussion
A. Standard of Review
The scope of our review in an appeal from a decision
of the Board is limited. Barrett v. Soc. Sec. Admin., 309
F.3d 781, 785 (Fed. Cir. 2002). This court affirms the
Board decision unless it is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence. Id.; 5 U.S.C. § 7703(c); see
also Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed.
Cir. 2010); Hayes v. Dep’t of the Navy, 727 F.2d 1535,
1537 (Fed. Cir. 1984). Petitioner bears the burden of
establishing reversible error on appeal. See Fernandez v.
Dep’t of Army, 234 F.3d 553, 555 (Fed. Cir. 2000).
B. Analysis
Abruzzo claims on appeal that the Board failed to
consider his counterclaim and evidence of an allegedly
hostile workplace and conspiracy to remove him, that the
Board applied the wrong fact-finding standard when
deciding the conduct unbecoming an ALJ charge, and that
the orders issued to Abruzzo by his ALJ supervisors were
improper and interfered with his judicial independence.
1. Procedural and Evidentiary Matters
Abruzzo argues that from the onset of this dispute,
there has been a “conspiracy to commit prohibited per-
sonnel practices and create a hostile workplace, initiated
at the highest levels of SSA.” Petitioner Br. at 1. Abruzzo
contends that the presiding ALJ simply refused to con-

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ABRUZZO v. SSA 8
sider his counterclaim to this effect, and improperly
excluded various exhibits supporting it.1 Id.
This court has held that procedural and evidentiary
matters fall within the Board’s sound discretion. Barrett,
309 F.3d at 786. This court will not overturn the Board’s
procedural and evidentiary decisions unless the decision
constitutes an abuse of discretion. Id.
While Abruzzo argues that his counterclaim was dis-
missed and evidence was improperly excluded, the record
reveals the opposite. The ALJ clearly permitted “back-
ground facts relevant to the complaint or any defense to
the complaint” to “be raised at the hearing.” Petitioner
Br. at 1. The ALJ in fact admitted several of Abruzzo’s
exhibits on this theory, but chose to exclude six other
exhibits because they were not on Abruzzo’s pre-hearing
list as required by the scheduling order. Simply enforcing
the scheduling order in this case is not an abuse of discre-
tion. The ALJ, moreover, specifically discussed Abruzzo’s
accusation that HOCALJ Barbeito was harassing and
making a scapegoat of him, but found credible evidence of
a hostile workplace absolutely lacking. See Abruzzo, 2010
MSPB LEXIS 5624, at *50. We find no abuse of discre-
tion in these procedural and evidentiary matters.
2. Conduct Unbecoming an ALJ Standard
On appeal, the underlying misconduct alleged by the
SSA in charge three is never denied by Abruzzo, including
1 Abruzzo also asserts that an October 15, 2009 con-
ference call improperly “dismissed” his counterclaims and
supporting evidence without the opportunity to be heard.
We find that this conference call predates the matter
presently on appeal and is irrelevant to the disposition of
the agency’s removal complaint of March 3, 2010.

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ABRUZZO v. SSA 9
the specified events that occurred in April 2009. He
admits of that incident, in fact, that he “acted improp-
erly.” Petitioner Br. at 40. Abruzzo contends instead that
the Board applied the wrong standard in determining
conduct unbecoming an ALJ. He argues that the stan-
dard for this charge is “Highly Subjective And [sic] Cir-
cumstance Dependent,” and that “there is no reliable way
to ascertain the line between innocent conduct and pun-
ishable misconduct.” Petitioner Br. at 32-34. He ad-
vances no alternative standard.
We find that the Board applied an acceptable stan-
dard here. It described conduct unbecoming as “conduct
that revealed a temperament that detracted from charac-
ter or reputation.” Abruzzo, 2011 MSPB LEXIS 4754, at
*6 (citing Miles v. Dep’t of Army, 55 M.S.P.R. 633, 637
(1992) (holding that conduct unbecoming is “unattractive,
unsuitable, or detracting from the employee’s character”)).
That standard is consistent with a recent articulation
reviewed by this court. In Long v. SSA, this court re-
viewed the standard phrased as “conduct that ‘under-
mines public confidence in the administrative
adjudicatory process,’” including misconduct “relate[d] in
some way to the character traits expected of an ALJ,” and
affirmed the good cause removal of an ALJ for conduct
unbecoming. 635 F.3d 526, 533-36 (Fed. Cir. 2011).
We sustain the Board’s “conduct unbecoming” stan-
dard applied here—that which “detracts from the ALJ’s
character or reputation” before the public. We hold that
there was no legal error or abuse of discretion in finding
“conduct unbecoming an ALJ.”

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ABRUZZO v. SSA 10
3. Improper Orders
Abruzzo asserts that the intent of the Administrative
Procedures Act (“APA”) was violated because his supervi-
sors lacked authority to issue the orders in question.
Petitioner. Br. at 3-31. Abruzzo claims that his supervi-
sors may only give orders as to “general” or “routine office
management.” Id. at 17, 19. We disagree.
First, the ALJ found that all of Abruzzo’s supervisors
possess authority to issue orders to Abruzzo. See
Abruzzo, 2010 MSPB LEXIS 5624, at *7-8. Pursuant to
the position description, the HOCALJ is supervisory to an
ALJ. Id. We have thus held that discipline may be
appropriate for ALJs disregarding instructions from the
HOCALJ. Butler v. Soc. Sec. Admin., 331 F.3d 1368, 1370
(Fed. Cir. 2003). The same authority logically extends to
RCALJ Garmon and Chief Judge Cristaudo—both of
whom hold positions superior to HOCALJ Barbeito.
Second, an ALJ, while enjoying qualified judicial in-
dependence, is not immune from supervision. Brennan v.
Dep’t of Health & Human Servs., 787 F.2d 1559, 1562 &
n.1 (Fed. Cir. 1986); Soc. Sec. Admin. v. Brennan, 19
M.S.P.R. 335, 340 (1984). For example, orders requiring
that certain material be included or excluded from pre-
trial orders; orders requiring that co-workers be treated
with respect, courtesy and consideration; and orders
requiring the performance of scheduled hearings, have all
been found appropriate. See Nash v. Bowen, 869 F.2d
675, 680 (2d Cir. 1989); Soc. Sec. Admin. v. Glover, 23
M.S.P.R. 57 (1984); Soc. Sec. Admin. v. Manion, 19
M.S.P.R. 298 (1984). The Board’s findings that none of
the orders at issue actually interfered with Abruzzo’s
decision-making as a judge are supported by substantial
evidence.

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ABRUZZO v. SSA 11
4. Penalty Imposed
Administrative law judges may be removed for “good
cause established and determined by the [Board].” 5
U.S.C. § 7521(a). “Deference is given to the agency’s
judgment unless the penalty exceeds the range of permis-
sible punishment specified by statute or regulation, or
unless the penalty is so harsh and unconscionably dispro-
portionate to the offense that it amounts to an abuse of
discretion.” Parker v. U.S. Postal Serv., 819 F.2d 1113,
1116 (Fed. Cir. 1987) (internal quotation marks omitted).
But we may overturn a penalty imposed by the Board for
an ALJ's misconduct “[o]nly in the exceptional case in
which the penalty exceeds that permitted by statute or
regulations or is so harsh that it amounts to an abuse of
discretion.” Brennan v. Dep’t of Heath and Human Servs.,
787 F.2d 1559, 1563 (Fed. Cir. 1986).
Abruzzo admits that the events of April 2009
amounted to conduct unbecoming and ALJ, but argues
that removal was excessive. Petitioner Br. at i(6). Here,
the ALJ conducted a very thorough analysis of the factors
outlined in Douglas v. Veterans Administration, 5
M.S.P.R. 280 (1981), and found the misconduct inten-
tional, frequent, disruptive, and incompatible with his
ability to adequately perform his judicial duties. See
Abruzzo, 2010 MSPB LEXIS 5624, at *91-97. The Board’s
findings that Abruzzo cannot effectively serve as an ALJ
due to his sustained misconduct does not amount to an
abuse of discretion. Accordingly, we uphold the Board's
penalty of removal.

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ABRUZZO v. SSA 12
III. Conclusion
We have considered all of Abruzzo’s remaining con-
tentions on appeal and find them without merit. In light
of the foregoing, we affirm.
AFFIRMED
COSTS
Each party shall bear its own costs.

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