February 28, 2011A dispute over whether administrative law judges at the Housing and Urban Development Department were prevented from making judicial decisions independently is splintering HUD's Office of Hearings and Appeals.
Complaints filed separately by HUD administrative law judges Alexander Fernández and Jeremiah Mahoney to the federal court of the District of Columbia alleged that the director of the Office of Hearings and Appeals improperly communicated with parties appearing before the judges, interfered with their dockets and sent the Justice Department advance notice of cases that would be tried in federal court -- thus appearing to give the government an unfair advantage.
The documents claim that Director David Anderson also made deliberate choices over which cases each judge should preside over, violating the 1946 Administrative Procedure Act, which aims to minimize political influence in the adjudication process and instructs that administrative law judges try cases on a rotating basis as much as possible.
In 2008, Anderson took Fernández off all cases involving Native American housing, claiming that he lacked "sensitivity to political considerations faced by the [agency's] secretary," the allegations stated.
According to the documents, Fernández also claimed Anderson told him that he was not "sophisticated" enough to adjudicate civil money penalty cases, which involve violations of housing-related laws, in particular because they involve recovering money for the general treasury. For months in early 2009, Mahoney's case docket was "significantly higher" than his, Fernández said through his lawyers via e-mail.
The office adjudicates a range of housing cases, including housing discrimination and problems relating to HUD-insured loans. Allegations of improper judicial intervention have cropped up at the department before.
Peter Davenport, chief administrative law judge at the Agriculture Department and past president of the Federal Administrative Law Judges Conference, said that all four administrative law judges who served prior to Fernández and Mahoney left the office five years ago because of "significant encroachments on their judicial independence," as he wrote in a 2010 letter he addressed to HUD Secretary Shaun Donovan in 2010.
Anderson responded in an affidavit for an internal investigation that he "assigned a greater number of complex and politically sensitive cases" to Mahoney because of his experience. Mahoney retired from the Air Force as the longest-running military judge in U.S. history and has more than 27 years of experience as a military trial and appellate judge, while Fernández's "entire judicial experience was less than three months," the affidavit said.
"Experience should not be a factor in case assignment, absent other extraordinary conditions," said FALJC's Davenport, because "administrative law judges should have the requisite experience to handle any case assigned to them."
HUD began to rejigger the workload of both judges in late 2009 after Fernández filed internal complaints. Fernández started receiving civil money penalty cases and Native American housing cases, but other concerns remained, he said.
For instance, both judges allege that Anderson ignored their concerns that the office appeared biased in favor of the government by providing Justice with advance notice of fair housing cases that were going to be tried in federal court. Mahoney also claimed Anderson barred the administrative law judges from access to docket numbers for more than 100 mortgage board review cases -- "crucial for permitting judges to keep track of the numerous cases," the allegation said.
Anderson responded in documents that giving notices of new cases to legal forums doesn't require the consent of a judge. As a former chief administrative judge who served for more than 25 years, "I am extremely sensitive to, and knowledgeable of, the need for a separation of management from the adjudicatory process," he stated.
The case is gridlocked, with both sides claiming they have been falsely accused. Several sources who would not be identified for fear of reprisal, spoke about a toxic environment at the HUD office divided between the two sides. Four people in the Office of Hearings and Appeals have filed complaints with the Equal Employment Opportunity Commission for alleged retaliatory and discriminatory actions taken against them.
Fernández's complaint included allegations that he was barred from speaking in Spanish to the office's receptionist, stonewalled when he asked for parking and telework arrangements that would accommodate his fibromyalgia and arthritis, and was suspended for two months in 2009 without notice.
HUD was at the bottom of a 2010 list from the Partnership for Public Service ranking employee satisfaction at large agencies. When HUD moved its office of Administrative Law Judges into the newly created Office of Hearings of Appeals, the reorganization and unexpected relocation in 2007 because of lease issues put unforeseen pressures on employees, sources in the office said.
The department also lacked an administrative law judge for eight months, and pending cases had to be transferred to the Environmental Protection Agency in various stages of completion before Fernández and Mahoney took office.
Fernández has agreed to enter into mediation on his case. Mahoney will push to relate his case with that of Fernández's by March to better consolidate the fact-finding process.
Neither HUD, the Justice Department, which is representing HUD, or the Office of Personnel Management, which Mahoney asked to step in on the issue, would comment publicly on ongoing litigation. Anderson also declined comment.
"People should be able to believe that an administrative law judge will make a decision that is independent of political influence or budgetary constraints within the agency, regardless of the dollar values involved in a case," said Mahoney in an interview. "Once that faith is gone, so is the credibility of an agency."
Dawn Lim is a contributor to Government Executive and Nextgov.
February 28, 2011