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TABLE OF CONTENTS
CHAPTER 1 - PURPOSE AND DEFINITIONS ............................................................. 1
1. PURPOSE. ..................................................................................................... 1
2. 120-DAY STANDARD. ..................................................................................... 1
3. LIST OF ACRONYMS. ...................................................................................... 1
CHAPTER 2 - REVIEWING THE APPEAL ................................................................... 3
1. RECEIPT OF THE APPEAL. ............................................................................... 3
2. REVIEW OF THE APPEAL. ................................................................................ 3
3. REJECTION OF THE APPEAL. ........................................................................... 8
4. SUBSTITUTION OF PARTIES............................................................................ 8
5. PSEUDONYMOUS APPEALS (JOHN DOE APPEALS -- WHEN THE APPELLANT
SEEKS ANONYMITY). .................................................................................... 9
6. REPRESENTATION. ...................................................................................... 11
7. PRO SE APPELLANTS. ................................................................................... 11
8. INCOMPETENCE. ......................................................................................... 12
9. CONGRESSIONAL INQUIRIES AND REFERRALS. .............................................. 12
CHAPTER 3 - INITIAL PROCESSING ...................................................................... 14
1. ASSIGNMENT TO ADMINISTRATIVE JUDGE. .................................................... 14
2. DISQUALIFICATION OF ADMINISTRATIVE JUDGE. ........................................... 14
3. CONSOLIDATION AND JOINDER. ................................................................... 14
4. CLASS ACTIONS. ......................................................................................... 16
5. INTERVENTION. .......................................................................................... 18
6. SENSITIVE APPEALS. ................................................................................... 19
7. ACKNOWLEDGMENT AND SHOW CAUSE ORDERS. ........................................... 19
8. SPECIAL PROCEDURES FOR RETIREMENT APPEALS FROM THE PHILIPPINES. ...... 21
9. OBLIGATION TO FURNISH OPM WITH INFORMATION. ...................................... 21
10. ORGANIZATION OF THE APPEAL FILE. .......................................................... 21
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11. FAX SUBMISSIONS. ................................................................................... 22
12. SUSPENDING CASES FOR DISCOVERY OR SETTLEMENT. ................................ 22
CHAPTER 4 - HEARINGS, SCHEDULING AND ARRANGING..................................... 23
1. HEARING REQUESTS. ................................................................................... 23
2. CONDITIONAL OR AMBIGUOUS REQUESTS. .................................................... 23
3. USE OF HEARING NOTICE. ........................................................................... 24
4. ADVANCE NOTICE. ...................................................................................... 24
5. DISTRIBUTION OF NOTICE; COURT REPORTER CONTRACT. .............................. 24
6. HEARING LOCATION. ................................................................................... 25
7. TELEPHONE HEARINGS. ............................................................................... 25
8. VIDEO HEARINGS. ....................................................................................... 25
9. MOTIONS FOR POSTPONEMENT OF THE HEARING. .......................................... 25
10. DISMISSAL WITHOUT PREJUDICE. ............................................................... 26
11. PUBLIC HEARINGS. .................................................................................... 28
12. CONDUCT OF PARTIES - SANCTIONS. .......................................................... 28
13. FAILURE OF A PARTY OR REPRESENTATIVE TO APPEAR. ................................. 29
CHAPTER 5 - MOTIONS ......................................................................................... 31
1. FORM OF MOTIONS. .................................................................................... 31
2. RULING ON MOTIONS. ................................................................................. 31
3. MEMORIALIZATION OF RULINGS. .................................................................. 31
CHAPTER 6 - INTERLOCUTORY APPEALS .............................................................. 32
1. INTRODUCTION. ......................................................................................... 32
2. CRITERIA FOR CERTIFYING INTERLOCUTORY APPEALS. ................................... 32
3. PROCEDURES.............................................................................................. 32
4. STAYS PENDING INTERLOCUTORY APPEALS. .................................................. 33
CHAPTER 7 - WITNESSES, SUBPOENAS AND SWORN STATEMENTS ...................... 34
1. REQUESTS FOR WITNESSES. ........................................................................ 34
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2. OBTAINING WITNESSES FOR HEARINGS AND DEPOSITIONS. ........................... 34
3. SUBPOENAS--REGULATORY CITATION; EXCEPTIONS. ...................................... 34
4. TIMELY OBJECTIONS TO A SUBPOENA. .......................................................... 35
5. MOTIONS TO QUASH OR LIMIT. .................................................................... 35
6. MOTIONS FOR ENFORCEMENT. ..................................................................... 35
7. PROTECTIVE ORDERS. ................................................................................. 36
8. REQUIREMENTS FOR SWORN STATEMENTS. ................................................... 36
CHAPTER 8 - DISCOVERY ..................................................................................... 37
1. GENERAL. ................................................................................................... 37
2. FEDERAL RULES OF CIVIL PROCEDURE. ......................................................... 37
3. FORMS OF DISCOVERY. ............................................................................... 38
4. VOLUNTARY DISCOVERY. ............................................................................. 39
5. DISCOVERY REQUESTS. ............................................................................... 39
6. PREMATURE FILINGS. .................................................................................. 39
7. TIME LIMITS FOR DISCOVERY. ...................................................................... 39
8. MOTIONS TO COMPEL. ................................................................................. 40
9. ADMINISTRATIVE JUDGE’S DISCOVERY AUTHORITY. ....................................... 41
10. SUSPENDING CASES FOR DISCOVERY. ........................................................ 41
CHAPTER 9 - PREHEARING AND STATUS CONFERENCES ....................................... 42
1. PURPOSES OF CONFERENCES. ...................................................................... 42
2. ISSUANCE OF STANDARD ORDERS – “BURGESS” NOTICE. ............................... 42
3. NUMBER OF CONFERENCES REQUIRED. ......................................................... 43
4. METHOD OF CONFERENCES. ......................................................................... 43
5. RECORD OF CONFERENCES. ......................................................................... 43
6. TREATMENT OF AFFIRMATIVE DEFENSES DURING PREHEARING AND
STATUS CONFERENCES. ............................................................................. 44
7. RETIREMENT CASES. ................................................................................... 47
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8. MOTIONS FOR ATTORNEY FEES, COMPENSATORY, LIQUIDATED AND/OR
CONSEQUENTIAL DAMAGES, AND PETITIONS FOR ENFORCEMENT. .................. 48
CHAPTER 10 - THE HEARING AND ITS RECORD .................................................... 49
1. ROLE AND CONDUCT OF ADMINISTRATIVE JUDGE. ......................................... 49
2. PRELIMINARY CONFERENCE. ......................................................................... 51
3. PUBLIC HEARINGS. ...................................................................................... 51
4. USE OF TWO-WAY COMMUNICATIONS DEVICES; BROADCAST OF HEARINGS. .... 52
5. SIZE OF AND ACCESS TO THE HEARING ROOM. .............................................. 53
6. TELEPHONIC OR VIDEO CONFERENCE HEARINGS. ........................................... 53
7. HEARING PARTICIPANTS. ............................................................................. 55
8. SECURITY. .................................................................................................. 56
9. ORDER OF BUSINESS. ................................................................................. 56
10. DISPOSITION OF MOTIONS AND OBJECTIONS. ............................................. 57
11. SANCTIONS. ............................................................................................. 57
12. WITNESSES. ............................................................................................. 59
13. OFF-THE-RECORD DISCUSSIONS. ............................................................... 60
14. PRESENTATION OF EVIDENCE. .................................................................... 60
15. WRITTEN SUBMISSIONS IN ADDITION TO HEARING. ..................................... 62
16. CLOSING THE RECORD. .............................................................................. 63
17. BENCH DECISIONS. ................................................................................... 63
18. VERBATIM RECORD OF THE HEARING. ......................................................... 63
19. TRANSCRIPTS. .......................................................................................... 65
20. CERTIFICATION OF THE HEARING RECORD. .................................................. 67
CHAPTER 11 - SETTLEMENT .................................................................................. 69
1. POLICY. ...................................................................................................... 69
2. TIMING. ..................................................................................................... 69
3. DISMISSALS ON THE BASIS OF SETTLEMENT. ................................................ 69
4. ACCEPTANCE INTO THE RECORD. .................................................................. 69
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5. AUTHORITY. ............................................................................................... 70
6. ENFORCEMENT. ........................................................................................... 70
7. ORAL AGREEMENTS. .................................................................................... 70
8. SUSPENDING CASES FOR THE MEDIATION APPEALS PROGRAM. ....................... 70
9. SETTLEMENT OPTIONS. ................................................................................ 70
CHAPTER 12 - INITIAL DECISIONS ...................................................................... 72
1. GENERAL. ................................................................................................... 72
2. ORGANIZATION OF THE DECISION. ............................................................... 72
3. QUALITY REVIEW OF DECISIONS. ................................................................. 75
4. DISTRIBUTION OF DECISIONS. . .................................................................. 76
5. BENCH DECISIONS. ..................................................................................... 76
6. RULES OF CITATION. ................................................................................... 78
7. STYLE. ....................................................................................................... 79
8. SANITIZATION OF INITIAL DECISIONS. ......................................................... 79
9. CLOSING AND CODING CASES. ..................................................................... 80
CHAPTER 13 - ADDENDUM DECISIONS ................................................................. 81
1. GENERAL. ................................................................................................... 81
2. ATTORNEY FEES. ......................................................................................... 81
3. PROCESSING MOTIONS FOR ATTORNEY FEES. ................................................ 83
4. COMPLIANCE. ............................................................................................. 84
5. PROCESSING PETITIONS FOR ENFORCEMENT. ................................................ 85
6. CONSEQUENTIAL, LIQUIDATED, AND COMPENSATORY DAMAGES. .................... 86
7. PROCESSING REQUESTS FOR DAMAGES. ....................................................... 86
CHAPTER 14 - EX PARTE COMMUNICATIONS ........................................................ 89
1. GENERAL. ................................................................................................... 89
2. SPECIFIC PROHIBITIONS/APPROVALS. ........................................................... 89
3. PLACEMENT IN THE RECORD/SANCTIONS. ..................................................... 90
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4. AVOIDANCE OF PROHIBITED EX PARTE COMMUNICATIONS. ............................. 91
5. DUE PROCESS GUARANTEE AT THE AGENCY LEVEL. ........................................ 91
CHAPTER 15 - WHISTLEBLOWER APPEALS ........................................................... 92
1. GENERAL. ................................................................................................... 92
2. OTHERWISE APPEALABLE ACTION APPEALS. ................................................... 92
3. IRA APPEALS. ............................................................................................. 92
4. ELECTION OF REMEDIES. ............................................................................. 92
5. TIME LIMITS FOR APPEALING TO THE BOARD. ................................................ 93
6. ESTABLISHING JURISDICTION AND BURDENS AT HEARING. ............................ 94
7. ANALYSIS. .................................................................................................. 95
8. REFERRAL TO OSC. ...................................................................................... 99
9. ATTORNEY FEES. ....................................................................................... 100
10. CONSEQUENTIAL AND COMPENSATORY DAMAGES. ..................................... 100
11. WHISTLEBLOWER PROTECTION ENHANCEMENT ACT (WPEA). ........................ 101
CHAPTER 16 - STAY REQUESTS .......................................................................... 104
1. GENERAL. ................................................................................................. 104
2. TIME OF FILING. ....................................................................................... 104
3. PROCEDURES FOR RULING ON STAY REQUESTS. .......................................... 104
4. MERITS ISSUES CONCERNING STAYS. ......................................................... 105
5. APPEAL RIGHTS FROM A RULING ON A STAY REQUEST. ................................. 105
CHAPTER 17 - SPECIAL RECORDS PROCEDURES ................................................. 106
1. SEALED CASES. ........................................................................................ 106
2. NATIONAL SECURITY (CLASSIFIED) INFORMATION. ...................................... 109
3. SANITIZATION OF INITIAL DECISIONS. ....................................................... 109
4. THIRD-PARTY REQUESTS UNDER FOIA; APPELLANT REQUESTS; PRIVACY ACT. 110
5. SENSITIVE SECURITY INFORMATION. .......................................................... 111
6. OTHER UNCLASSIFIED BUT SENSITIVE INFORMATION. .................................. 112
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CHAPTER 18 - USERRA AND VEOA APPEALS ....................................................... 113
1. THE STATUTES. ......................................................................................... 113
2. JURISDICTION. ......................................................................................... 113
3. AFFIRMATIVE DEFENSES. ........................................................................... 116
4. TIME LIMITATIONS, TIMELINESS, AND EXHAUSTION. .................................... 117
5. REPRESENTATION. .................................................................................... 118
6. HEARING. ................................................................................................. 118
7. BURDENS OF PROOF. ................................................................................. 119
8. ELECTIONS TO TERMINATE......................................................................... 119
9. ADDITIONAL APPEALS................................................................................ 120
APPENDIX A - MODEL INSTRUCTIONS FOR BROADCAST COVERAGE ................... 122
APPENDIX B - MODEL INSTRUCTIONS FOR WITNESSES ...................................... 125
APPENDIX C - ALPHABETICAL INDEX TO AJ HANDBOOK ..................................... 126
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CHAPTER 1 - PURPOSE AND DEFINITIONS
1. PURPOSE.
The Board is authorized generally by 5 U.S.C. § 1204(a)(1)
to hear and adjudicate appeals.
The Board’s regulations set forth at 5 C.F.R. part 1201 provide the basic framework for the
processing of appeals. With the enactment of the Whistleblower Protection Act (WPA), as
amended, the Board promulgated additional regulations in
5 C.F.R. part 1209 that govern
whistleblower appeals. The regulations have also been supplemented with procedures
applicable to appeals under the
Uniformed Services Employment and Reemployment Rights
Act (USERRA) and the Veterans Employment Opportunities Act (VEOA), which are located at
5 C.F.R. part 1208. Although 5 C.F.R. part 1210 was added to address the processing of
appeals of removals and transfers of members of the Senior Executive Service at the
Department of Veterans Affairs, this part has been superseded by 38 U.S.C. § 713, which
provides no Board appeal rights for such actions. Different appeal rights for non-SES
employees of the DVA were enacted as 38 U.S.C. § 714, but MSPB regulations addressing
such appeals have not yet been completed.
This Handbook is designed to provide supplemental guidance to the Board’s regulations.
The procedures in this Handbook are not mandatory, and adjudicatory error is not
established solely by failure to comply with a provision of this Handbook.
2. 120-DAY STANDARD.
The Board’s policy is to adjudicate all appeals within 120 days of receipt by the Regional
Office (RO) except for good cause shown.
The 120-day standard alone, however, is not sufficient reason (at least in a non-mixed
case) to deny a continuance in the face of good cause. Due process and fairness
considerations are paramount in determining good cause. Caseloads and the circumstances
of the RO or Administrative Judge (AJ) are also factors for consideration. For example, the
33,000+ furlough appeals that were filed in the spring and summer of 2013, and the
backlog of older cases left in their wake, meant that for several years following 2013 the
120-day goal could not be met in many cases that would otherwise have been timely
decided. Reassignments among AJs or ROs may be used to reconcile due process factors
and the Board’s 120-day goal to the maximum extent possible.
3. LIST OF ACRONYMS.
Administrative Judge—AJ
Administrative Law Judge—ALJ
Case Management System—CMS
Chief Administrative Judge—CAJ; as used in this Handbook, the term “CAJ” refers to a
Regional Director overseeing a Regional Office or the CAJ designee of a Field Office.
Chief Administrative Law Judge—CALJ
Electronic Case File--ECF
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Equal Employment Opportunity—EEO
Field Office—FO
Initial Decision—ID
Individual Right of Action—IRA
Mixed Case—Otherwise appealable matter with an allegation of
prohibited discrimination.
Nonprecedential Final Order – NPFO; the Board also issues NPROs (Nonprecedential
Remand Orders) and NPOs (Nonprecedential Orders).
Office of Appeals Counsel—OAC
Office of Personnel Management—OPM
Office of the Clerk of the Board—OCB
Office of the General Counsel—OGC
Office of Regional Operations—ORO
Office of Special Counsel—OSC
Opinion and Order—O&O
Otherwise Appealable Action—OAA
Petition for Appeal—PFA
Petition for Enforcement—PFE
Petition for Review—PFR
Prohibited Discrimination—Discrimination on the basis of any factor listed at 5 U.S.C.
§ 2302(b)(1).
Prohibited Personnel Practice—PPP; Any practice listed at 5 U.S.C. § 2302(b).
Regional Director—RD
Regional Office—RO
Special Counsel—SC
Time Limits—Counted in calendar days with the day after receipt being the first day.
(Any exceptions to this policy are specifically noted in this Handbook).
Uniformed Services Employment and Reemployment Rights Act of 1994—USERRA
Veterans’ Employment Opportunities Act of 1998—VEOA
Whistleblower Protection Act of 1989—WPA
Whistleblower Protection Enhancement Act of 2012–WPEA
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CHAPTER 2 - REVIEWING THE APPEAL
1. RECEIPT OF THE APPEAL.
a. Record of Receipt. When an appellant files an appeal, the receiving office must date
stamp the appeal on receipt. Appeals filed through e-Appeal are automatically date
and time stamped.
b. Geographic Jurisdiction. The RO must ascertain whether it has geographic
jurisdiction over the appeal. In appeals from OPM reconsideration decisions and
from adverse suitability determinations, the appellant’s residence at the time the
appeal is filed controls. For other appeals, the location of the appellant’s duty station
when the action was taken generally controls. See
5 C.F.R. § 1201.4(d). A possible
exception to this principle is an appeal involving a directed reassignment, in which
geographic jurisdiction may be based on the appellant’s previous duty station.
Appeals filed by applicants for appointment or promotion, under the WPA/WPEA, the
VEOA, or the USERRA, may be directed to the office with jurisdiction over the area in
which the appellant lives or to the office with the closest ties to the case, but
because the circumstances of each case may vary widely there is no rule as to the
appropriate office for these appeals set out in the Board’s regulations.
If the office has geographic jurisdiction, the appeal must be docketed and entered
into the Case Management System (CMS) within 3 workdays. Except when the
appeal is rejected for premature filing or some other deficiency, the docket date of
the appeal is the date of receipt. If the office does not have geographic jurisdiction,
the appeal must not be docketed. Instead, it must be transferred within 3 workdays
to the office which has geographic jurisdiction. The sending office is to use express
mail or accountable mail when sending the appeal if it was filed in hard copy. The
receiving office will docket the appeal; for internal purposes the docket date is the
date the second RO receives the appeal. The office transferring the appeal must
notify the appellant of the transfer in writing. Consistent with the guidance
concerning rejected appeals in section 3 of this chapter, in determining timeliness,
the appeal is generally considered to have been filed as of the date of filing with the
first office.
2. REVIEW OF THE APPEAL.
a. Content. The CAJ (or designee) must review the appeal to ensure that it contains the
information required by 5 C.F.R. § 1201.24(a). Deficiencies in the appeal may be
cause for its rejection. Some bases for rejecting an appeal appear on the Board’s
public website under the file tab “The Appeal Process, Appeal Rejection Reasons”:
1. The appeal is premature because the Board received the appeal prior to
the effective date of the action being appealed or prior to the agency
issuing a final decision concerning the appellant’s performance, conduct,
or reduction-in-force status. 5 C.F.R. §1201.22(b). But see subsection d.
Premature Appeals, below, concerning appeals that will become ripe for
review within 10 days.
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2. The appeal is filed by someone other than the appellant, his or her
representative, or a party properly substituted under § 1201.35. 5 C.F.R.
§ 1201.24(a).
3. The appeal does not contain the appellant’s name, address, and telephone
number, and/or does not identify the name and address of the agency
that took the action being appealed. 5 C.F.R. §1201.24(a)(1).
4. The appeal does not contain a description of the agency’s action and its
effective date. 5 C.F.R. § 1201.24(a)(2).
5. If the appeal is not electronically filed, it lacks the signature of the
appellant or, if the appellant has a representative, of the representative.
5 C.F.R. § 1201.24(a)(9).
6. If the appeal is not electronically filed, the appellant did not file two copies
of the appeal and all attachments with the appropriate Board office.
5 C.F.R. § 1201.26(a).
7. Pleadings and attachments were not filed on 8.5 by 11-inch paper, or
electronic documents were not formatted so that they could be printed on
that size paper, and no good cause was provided. 5 C.F.R. §1201.26(c).
8. The appellant checked multiple actions being appealed, and indicated only
one effective date or no effective date at all for the appealed actions. 5
C.F.R. § 1201.24(a)(2).
9. The appellant filed a stay request but did not submit evidence that the
employing agency was served a copy of the request. 5 C.F.R. §1209.8(c).
b. Incomplete Appeals. When the appeal and its attachments, although incomplete,
provide enough information that the appeal can be docketed, it should be docketed
based on that information. When the appeal lacks sufficient information essential to
proper docketing, such as the name of the agency or a reasonable statement of the
matter being appealed, or a necessary copy of the decision being appealed, efforts
appropriate to the situation should be made to contact the appellant and/or the
appellant’s representative by telephone, e-mail, or fax to get the required
information. If the agency is known, it may also be contacted. In any case, if the
office can learn the essential information by phone, fax, or e-mail from either party,
it can be docketed immediately. You need not wait to receive it by regular mail
delivery, since issues such as timeliness and jurisdiction can be addressed after the
initial acknowledgment order is sent and once the missing information is received in
a more official form.
Generally you need not document for the record such informal contacts with the
parties. Rather, the appeal and acknowledgment order can be placed at Tabs 1 and
2 of the record, respectively, as would normally be done, and if the appellant or
representative submits something in writing, it can be appended to the otherwise
incomplete appeal under Tab 1, even if there may then be documents with two
different dates under the same tab. If the agency supplies a missing document,
however, that submission should be placed under a separate tab, which would be
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Tab 2 if the document is the first information the office receives after the appeal
itself, or Tab 3 if the acknowledgment order has already been issued. If the office
cannot docket the appeal, and cannot reach a party or representative by phone, fax,
or e-mail, or if it requests but does not receive the information necessary to docket
the appeal within 2-3 business days, the appeal may be rejected using the standard
notice listing the specific deficiency. That notice would be sent to the appellant and,
if represented, the appellant’s representative. If this happens, the rejection letter is
Tab 1, and when the necessary information is received, the complete appeal then
becomes Tab 2.
If the appeal is not formally rejected, the receipt date of the incomplete submission
is the date of receipt of the appeal for purposes of determining timeliness. Even if
an appeal must be rejected despite efforts to complete the information needed to
docket it, the date of the original filing remains the filing date of the appeal for
purposes of its timeliness. See, e.g., Taylor v. Office of Personnel Management
,
73 M.S.P.R. 142, 143 (1997) (wherein the FO returned the appellant’s submission to
her because it was technically deficient, the date that the appellant made her
original, deficient submission rather than the date of resubmission is the filing date
of the appeal).
c. Timeliness of the Appeal. The CAJ (or designee) must review the appeal to
determine if it was timely filed under 5 C.F.R. § 1201.22(b). If the appeal appears
untimely, the appropriate timeliness language, tailored to the situation when
necessary, must be included in the acknowledgment or show cause order (see also
chapter 3, section 8). An appellant should be told what the timeliness issue is, and
what must be shown to establish either that the appeal is timely or that there is good
cause to waive the time limit.
Lacy v. Department of the Navy, 78 M.S.P.R. 434
(1998). Pursuant to Lacy, if the appellant asserts that an untimely filing was due to
a medical condition, he or she should be told that to establish that an untimely filing
was the result of an illness, the party must: (1) identify the time period during
which the party suffered from the illness; (2) submit medical evidence showing that
the alleged illness affected that party during that time period; (3) in the absence of
medical evidence, the party must submit other supporting evidence and explain why
medical evidence is not available; and (4) explain how the illness prevented him or
her from timely filing the appeal or a request for an extension of time. In the
absence of direct evidence, the AJ should inform the appellant of the date that the
document that triggers the running of the appeal period will be presumed to have
been received, and order both parties to produce whatever evidence they possess on
the issue.
Williams v. Equal Employment Opportunity Commission, 75 M.S.P.R. 144
(1997). Similarly, the AJ must notify the appellant of the date on which the appeal is
presumed to have been filed when no postmark provides proof and of the postmark
date when one does appear. For special considerations in determining the timeliness
of retirement appeals sent from the Philippines, see chapter 3, section 8(a) of
this Handbook.
Note that if the appeal was filed by e-Appeal, the time that is automatically recorded
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on it is Eastern Time. Timeliness of a pleading will be determined based on the time
zone from which the pleading was submitted, so Board offices in other time zones
must adjust for the time difference in determining whether the appeal was timely
filed. See 5 C.F.R. § 1201.14(m).
d. Premature Appeals. The CAJ (or designee) must review the appeal to determine if it
was prematurely filed. If it is premature by 10 days or less, the office should docket
the case as a new appeal, using the receipt date of the premature appeal. The
appeal then becomes timely on the effective date of the appealed action or on the
first work day following that date. When the case becomes timely, the office should
enter event “Appeal is Perfected.” This event will reset the appeal processing time to
begin on the date the appeal is perfected. The first document received in the case,
250 Initial Appeal, will continue to show the original receipt date because that is the
receipt date of the document. (The date for the 250 is not used for calculating case
processing time.) If the appeal is more than 10 days premature, the CAJ must reject
the appeal using the appropriate standard form. This procedure also applies to
premature compliance appeals and attorney fee motions.
e. Jurisdiction. The CAJ (or designee) must review the appeal to determine whether it
appears to be within the Board’s jurisdiction. If the appeal appears to fall outside
the Board’s jurisdiction, the appropriate jurisdiction paragraphs, tailored to the
situation when necessary, must be included in the acknowledgment or show
cause order.
Although it is true in all appeals wherein jurisdiction may be an issue, it is
particularly true in IRA appeals that the AJ must adequately instruct the appellant
regarding the burden to show both the exhaustion of administrative remedies before
the OSC and the burden to make a nonfrivolous allegation that the alleged protected
disclosure was a contributing factor in the agency’s decision to take or fail to take a
personnel action. Kukoyi v. Department of Veterans Affairs, 111 M.S.P.R. 404, 408
¶ 12 (2009). The appellant must receive “explicit information on what is required to
establish an appealable jurisdictional issue,” including the means by which the
appellant may show that the exhaustion requirement had been satisfied. Id. at 409,
¶ 14.
f. Mootness. The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Hagan v. Department of the Army,
99 M.S.P.R. 313, ¶ 6 (2005). An agency’s unilateral modification of its action after
an appeal has been filed cannot divest the Board of jurisdiction unless the appellant
consents to such divestiture or the agency completely rescinds the action being
appealed. Id. For the appeal to be deemed moot following the cancellation or
rescission of the appealed action, the employee must have received all of the relief
that he could have received “if the matter had been adjudicated and he had
prevailed.” Fernandez v. Department of Justice,
105 M.S.P.R. 443, ¶ 5 (2007).
Thus, restoration of the appellant to the status quo ante, or placement in the
position he would have been in if the action had never occurred, may not be
sufficient to moot the appeal. Id. at 446, n.1. Statements by a representative that
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the agency has provided relief or is in the process of doing so do not constitute
evidence that the appeal has been rendered moot. Haskins v. Department of the
Navy, 106 M.S.P.R. 616
, ¶ 21 (2007). An appeal may not be dismissed as moot until
the agency provides acceptable evidence showing that it has actually afforded the
appellant all of the relief he could have received if the matter had been adjudicated
and he had prevailed. Id., ¶ 22. An appellant’s statement that the agency has not
paid all appropriate back pay constitutes a nonfrivolous allegation that the appeal
is not moot. Fernandez,
105 M.S.P.R. 443, ¶ 12.
Although an outstanding claim for attorney fees does not preclude dismissal for
mootness of an appeal brought under chapter 75, a request for fees in an IRA appeal
is a claim for corrective action. Vick v. Department of Transportation, 118 M.S.P.R.
68, ¶ 5 (2012). Another consideration when the issue of mootness is raised in an
IRA appeal is the requirement that after providing sufficient notice an AJ must afford
an appellant a specific opportunity to raise a claim for consequential damages (and
compensatory damages if the appeal is under the WPEA) before dismissing an IRA
appeal as moot. Id.
When an appellant has an outstanding claim of discrimination and has raised what
appears to be a further claim for compensatory damages before the Board, the
agency’s complete rescission of the action appealed does not afford him all of the
relief he could have received if the matter had been adjudicated and he had
prevailed; thus, the appeal is not rendered moot. Antonio v. Department of the
Air Force,
107 M.S.P.R. 626, ¶ 13 (2008). In fact, an appellant who has raised a
claim of discrimination must be informed of the right to request compensatory
damages before the appeal may be dismissed. See, e.g., Harris v. Department of
the Air Force,
96 M.S.P.R. 193, ¶ 11 (2004). If an appeal is not truly moot despite
cancellation of the action under appeal, the proper remedy is for the Board to retain
jurisdiction and to adjudicate the appeal on the merits. Antonio,
107 M.S.P.R. 626,
¶ 12. The matter cannot be dismissed as moot with the caveat that the appellant
may file a petition for enforcement if all of the relief is not provided, since there is
then no final order to enforce. Haskins,
106 M.S.P.R. 616, ¶ 18.
Retirement cases distinguished. Because the Board’s jurisdiction in a retirement
appeal is based on OPM’s final decision, rescission of such a decision may lead to a
dismissal for lack of jurisdiction, not mootness. In Rorick v. Office of Personnel
Management,
109 M.S.P.R. 597, ¶ 5 (2008), the Board explained that if OPM
completely rescinds a reconsideration decision, its rescission divests the Board of
jurisdiction over the appeal in which that reconsideration decision is at issue, and the
appeal must be dismissed. Nonetheless, for an appeal to be deemed moot, the
employee must have received all of the relief that he could have received “if the
matter had been adjudicated and he had prevailed,” citing Harris, above. When OPM
had rescinded its decision and planned to issue a new final decision, the appeal was
removed from the Board’s jurisdiction but was not moot. Id. Such an appeal must
be dismissed without prejudice to its refiling after the issuance of the new final
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decision. Id., ¶ 6.
(See also chapter 3, section 8).
3. REJECTION OF THE APPEAL.
Whenever an appeal is rejected, the standard rejection notice must be used. If the appeal
was filed electronically, the appellant should be informed that it has been deleted from the
repository and the actions necessary to accomplish that must be done.
a. Filing Date for Rejected Appeals. If the appeal is initially rejected, the filing date of
the rejected appeal will be used to determine the timeliness of the refiled appeal.
The date of the filing will be included in the rejection notice.
b. Docket Date for Rejected Appeals. The date the refiled appeal is received will be the
docket date.
c. Untimely Refiling of Rejected Appeals. Whenever the appellant submits an untimely
response to the standard rejection notice, it must be treated similarly to an untimely
appeal by accepting it and issuing an acknowledgment order that requires the
appellant to explain the untimeliness. Because the Board applies different criteria to
determine good cause for an untimely refiling, the order must use the standard
paragraphs specific to untimely refiled appeals. See Nelson v. U.S. Postal Service,
113 M.S.P.R. 644, ¶ 8 (2010).
d. Untimely Appeals and Untimely Refiling of Rejected Appeals. If both the original
appeal and the refiled appeal appear to be untimely, the acknowledgment order
must contain the appropriate standard paragraphs to cover both situations.
4. SUBSTITUTION OF PARTIES.
Since the right to file an appeal is a personal right, normally only an appellant or his or her
representative may file. Decisions that reject attempts to file an appeal by someone other
than the affected employee or annuitant refer to 5 C.F.R. § 1201.35 to state that while the
regulations permit a properly substituted party to pursue the appeal of an appellant who
dies or is otherwise unable to pursue an appeal, they do not provide for substitution of a
party before the appeal is filed. See, e.g., Estate of Pyc v. Department of Veterans Affairs,
73 M.S.P.R. 326 (1997). Such decisions, however, do not mention the potentially
conflicting statement in 5 C.F.R. § 1201.24(a) that “Only an appellant, his or her designated
representative, or a party properly substituted under § 1201.35 may file an appeal.” Thus,
the rule seems to remain that the appeal right is personal to the affected employee or
annuitant. Nonetheless, after an appeal is filed, if an appellant dies or becomes
incapacitated, and the individual’s interest in the appeal has not terminated, the appeal may
be processed upon the substitution of a proper party. See
Manangan v. Office of Personnel
Management, 58 M.S.P.R. 51, 53 (1993). The representative or the proper party must file a
motion for substitution within 90 days of the death or other incapacitating event, except for
good cause shown.
5 C.F.R. § 1201.35(b). In the absence of a timely substitution,
processing of the appeal may continue if the interests of the proper party will not be
prejudiced.
5 C.F.R. § 1201.35(c).
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5. PSEUDONYMOUS APPEALS (JOHN DOE APPEALS -- WHEN THE APPELLANT
SEEKS ANONYMITY).
a. Generally. An AJ may be requested to allow an appellant to proceed anonymously in
his or her appeal before the Board. In addition, an AJ may, on his or her own
motion, require the appellant’s anonymity in the interest of a third party’s privacy.
See chapter 17, section 3. The AJ should also be aware that there may be instances
when an appellant establishes a need to proceed anonymously for national
security reasons.
b. Procedure. An appellant’s request to proceed anonymously should be treated as a
motion. If the request is not in the proper form of a motion, the appellant should be
given the opportunity to perfect it. Furthermore, if the case record does not already
contain a separate statement or appeal with identifying information, including the
appellant’s name and address, phone number, etc., the AJ must require the
appellant to submit such identifying information to establish the appeal’s res judicata
or collateral estoppel (law of the case doctrine) effect, as well as for other tracking
and historical purposes. See Roe v. Ingram, 364 F. Supp. 536, 541 n.7
(S.D.N.Y. 1973).
Because of the need for a ruling on the motion very early in the Board’s proceedings,
an expedited procedure such as this should be invoked:
c. When an Appellant Should Be Allowed to Proceed Anonymously.
(1) Threat of Actual Physical Harm. An appellant should be allowed to proceed
anonymously when a threat of actual physical harm is present. See, e.g., Doe v.
U.S. Postal Service, 8 M.S.P.R. 128 (1981) (a threat to the appellant’s physical
safety because he was in hiding from organized crime).
(2) Matters of a Sensitive or Highly Personal Nature. Fear of financial or professional
injury does not justify allowing an appellant to proceed anonymously. See Southern
Methodist University Association v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979).
However, the Board has allowed anonymity to prevent an unwarranted invasion of a
third party’s personal privacy. See, e.g.,
Doe v. National Security Agency,
6 M.S.P.R. 555 (1981) (removal based on charges of sexual acts performed with a
minor daughter), aff’d sub nom. Stalans v. National Security Agency, 678 F.2d 482
(4th Cir. 1982).
(3) Criteria to Be Used by the AJ. As stated in Pinegar v. Federal Election
Commission, 105 M.S.P.R. 677, (2007):
The Board has not adopted a rigid, mechanical test for determining whether to
grant anonymity, but instead applies certain general principles in making such
determinations. Ortiz v. Department of Justice, 103 M.S.P.R. 621, ¶ 10 (2006)
.
Those factors include whether identification creates a risk of retaliatory physical
or mental harm, whether anonymity is necessary to preserve privacy in a matter
of a sensitive and highly personal nature, or whether the anonymous party is
compelled to admit his intention to engage in illegal acts, thereby risking criminal
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prosecution. Id., ¶ 8 (citing
Does I Thru XXIII v. Advanced Textile Corp., 214
F.3d 1058, 1068 (9th Cir.2000)). The Board also considers whether anonymity is
necessary to prevent a clearly unwarranted invasion of the privacy of a third
party or whether anonymity is necessary to preserve the appellant’s physical
safety.
Id., ¶ 9. Other potentially relevant factors include whether the appellant
requested anonymity when the proceedings began before the Board or
immediately after the need for anonymity became apparent, and which party
placed the sensitive matter in question at issue in the appeal.
Id., ¶ 12.
A party seeking anonymity must overcome the presumption that parties’
identities are public information.
Id., ¶ 10. Anonymity should be granted to
litigants before the Board only in unusual circumstances, and the determination
whether to grant anonymity must depend on the particular facts of each case.
Id. An appellant seeking anonymity before the Board must present evidence
establishing that harm is likely, not merely possible, if his name is disclosed.
Even when some harm is likely, the Board grants anonymity only when the
likelihood and extent of harm to the appellant significantly outweighs the public
interest in the disclosure of the parties’ identities.
Id.
The Board no longer grants “Jane Doe” status. Rather, cases in which a request for
anonymity is granted, regardless of the appellant’s gender, are titled “John Doe.”
While the above remains true, it appears that the Board has been more liberal in
granting Doe status in recent years.
d. Sealing the Record, Freedom of Information Act (FOIA), and Privacy Act. The Board
has denied an appellant’s request to seal all or part of the record, even when it has
granted a request for John Doe status based on the medical evidence in the record of
the appeal. In so doing, it stated that the case files from appeals are not available to
the public by e-Appeal Online or the Board’s website, and that medical records are
exempt from disclosure under FOIA. See
5 U.S.C. § 552(b)(6). Doe v. Pension
Benefit Guaranty Corporation, 117 M.S.P.R.579, n.5 (2012). Also, pursuant to the
Privacy Act, see
5 U.S.C. § 552a, the appellant’s medical records cannot be disclosed
by the Board without the appellant’s express written consent. Thus, the Board held
that granting the appellant’s request to seal her records would not provide her with
any additional privacy protection. Id. Other types of information, however, may well
be subject to FOIA, and sealing will not assure that the information is not made
available to others.
e. Nonparty Anonymity. Increasingly, the Board affords anonymity to nonparties to
appeals, including witnesses, agency officials, and others who were involved in the
development of the case or the facts that led the agency to take action. Such
persons are often referred to by their initials, their job titles, or as Witness 1, 2, etc.,
or by some other designation that does not make their name apparent to a reader
unfamiliar with the facts of the case. In many such cases the person has not
requested that the AJ or the Board allow anonymity. While the Board does not have
case law or a specific policy on this matter, AJs may, at the request of a person
involved in a case that is before them, or on their own motion if they believe it
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appropriate, keep confidential the identity of such individuals by referring to them in
such a way in the initial decision. The names of comparators in discrimination and
penalty analyses are generally appropriate for anonymity.
6. REPRESENTATION.
The Board’s regulations governing representation are set out at 5 C.F.R. § 1201.31. A party
to an appeal may be represented in any matter related to the appeal. The parties must
designate their representatives in writing and also must inform the Board and all other
parties of any subsequent changes in their representation in writing. If a party has more
than one representative, generally only one of the representatives must be served with a
copy of the appeal documents, but when documents are served electronically there is no
need to limit service this way. (At a hearing, generally only one of the representatives will
be allowed to question each witness. See chapter 10, section 7b.) The AJ may reject
submissions from represented appellants which are not sent by their
designated representatives.
A party may choose any representative who is willing and available to serve. The other
party or parties may challenge the designation on the grounds that it involves a conflict of
interest or a conflict of position. Any party who challenges a designation of representative
must do so by filing a motion with the AJ within 15 days after the date of service of the
notice of designation or 15 days after a party becomes aware of the conflict. 5 C.F.R.
§ 1201.31(b). The AJ may disqualify a representative for the same reasons on the AJ’s own
motion. The AJ must rule on the motion before considering the merits of the appeal, and if
the AJ disqualifies a party’s representative, the AJ must give that party a reasonable time to
obtain another one.
The Board lacks a process allowing for the general disqualification of representatives, but in
an individual case, an AJ may exclude or limit the participation of a representative or other
person for contumacious conduct or conduct prejudicial to the administration of justice. As
discussed later, see chapter 4, section 11, the AJ may impose lesser sanctions as well.
7. PRO SE APPELLANTS.
The MSPB’s policy is to make special efforts to accommodate pro se appellants. These
efforts may include the following: the AJ may schedule a status conference early in the
process to explain what will be required of the pro se appellant and to advise that the pro se
appellant may contact the RO or FO with questions regarding procedural matters.
Generally, the AJ should not reject filings by pro se appellants for failing to comply with
technical requirements, unless the violations are repeated after a clear warning. The AJ
ordinarily should not impose sanctions for failing to comply with an order unless the record
establishes that the pro se appellant received instructions that a reasonable person,
unfamiliar with Board procedures, would have understood. The AJ may allow greater
latitude to the pro se appellant in questioning witnesses and in giving testimony. The AJ
may allow some leading questions, and may need to instruct the pro se appellant regarding
the correct method of questioning. The Board has stated, in this regard, that AJs “should
provide more guidance to pro se appellants and interpret their arguments in the most
favorable light.” Miles v. Department of Veterans Affairs
, 84 M.S.P.R. 418, 421 (1999).
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8. INCOMPETENCE.
In a retirement case in which the appellant bears the burden of proving entitlement to
annuity benefits, if the appellant is, or appears to be, incompetent, the AJ must follow the
requirements set out in French v. Office of Personnel Management
, 37 M.S.P.R. 496 (1988).
In essence, French, a disability retirement appeal, requires an AJ to make diligent efforts to
assist such an appellant in obtaining representation. The Board has extended the French
process to other types of retirement appeals. See, e.g., Brown v. Office of Personnel
Management, 94 M.S.P.R. 331, ¶ 10 (2003). It has not, however, extended the French
requirements to questions of the appellant’s competence in adverse action appeals. See
Marbrey v. Department of Justice, 45 M.S.P.R. 72 (1990).
Nonetheless, in cases such as
Jones v. Department of Housing & Urban Development,
87 M.S.P.R. 269 (2000), the Board has noted an agency’s obligation to file a disability
retirement application on behalf of an employee it has removed, under the similar
circumstances set forth at 5 C.F.R. §§ 844.302 and 831.1205. If the agency has such an
obligation, procedures such as those required by French are to be employed. The AJ’s
responsibility and authority in that situation were detailed in
Dixon v. U.S. Postal Service,
89 M.S.P.R. 148, 151, ¶ 5 (2001).
Specifically, the AJ should monitor the progress of the application, including setting
reasonable time limits where appropriate, to ensure that the agency complies with its duty
to prosecute the application in good faith and to ensure that OPM complies with its duty to
process the application expediently and in good faith. The AJ may join OPM as a party to
the appeal, or initiate procedures to request pro bono representation for the appellant, if he
determines that such steps are appropriate or necessary. Additionally, the AJ has the
authority to vacate the ID to the extent necessary to facilitate any settlement agreement
that the parties and OPM may reach. When OPM issues a decision, the AJ is to ensure that
the appellant and any representative understand the options, including requesting
reconsideration and appealing to the Board.
9. CONGRESSIONAL INQUIRIES AND REFERRALS.
a. Initial Inquiries. The referral of a constituent’s complaint or inquiry by a Member of
Congress or other individual is not an appeal unless it is accompanied by an appeal
form or other documents sufficient to meet the requirements of
5 C.F.R. § 1201.24.
If the Congressional referral does not meet these requirements, the CAJ should
respond to the referral in writing, or at the CAJ’s discretion, by telephone, explaining
that the forwarded documents are not an appeal, that the employee/retiree or his or
her designated representative must personally file, and that the appellant or the
representative must sign an appeal. If the Congressional referral meets the filing
requirements, the response should indicate that, although generally only an
appellant or his or her designated representative may file an appeal, because the
material forwarded by the Member meets the Board’s filing requirements, including
correspondence raising an appeal, signed by the individual (or representative), the
Board will treat the correspondence as an appeal. A copy of the referral and any
written response should be sent to the potential appellant with a blind copy to the
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Board’s Legislative Counsel in OGC and to OCB. Finally, the RO should retain a copy
of the referral and response so that the AJ assigned to the appeal is aware of it in
deciding any potential timeliness issues.
b. Subsequent Submissions. If a Member of Congress, not designated as a
representative of an individual, submits evidence or argument on behalf of a
constituent after the Board’s processing of an appeal has begun, such a submission
should not be routinely entered into the record. It should be treated as an ex parte
communication and handled as required by
5 C.F.R. § 1201.101. The AJ should
make the communication part of the record, notify the parties in writing of the
communication, and give the parties 10 days to file a response. If the agency has no
objection to the submission, the AJ may still reject the submission as evidence on
the basis of relevance, materiality, or repetitiousness. The CAJ should inform the
Member of Congress (or staff member) of the disposition of the submission and
advise the Member, for future reference, of the Board’s requirements for the
designation of representatives and for accepting submissions. A blind copy of any
such correspondence with a Member of Congress should be sent to OCB and the
Legislative Counsel.
10. VEXATIOUS PLEADINGS.
In a very small number of cases, often involving individuals with apparent mental or
emotional issues, the individual will develop a longstanding pattern of filing multiple
vexatious pleadings regarding matters that have already been resolved in a final decision of
the Board or that are clearly not within the Board’s jurisdiction. Such pleadings generally
use abusive or threatening language. While AJs and support personnel may expect to have
to endure some degree of inappropriate behavior from filers, in such rare cases they need
not endure continuing and sustained abuse. Under those circumstances, the problem
should be brought to the attention of ORO for discussion of the possibility of barring the
person from filing additional pleadings or communicating further with the Board unless he or
she seeks and obtains prior approval from OCB. A requirement for prior approval is
consistent with Federal law permitting adjudicatory authorities to bar a vexatious litigant
from filing further complaints unless he or she receives prior approval. See, e.g., Molski v.
Evergreeen Dynasty Corporation, 500 F.3d 1047, 1057 (9th Cir. 2007); Filipas v. Lemons,
835 F.2d 1145, 1146 (6th Cir. 1986). Although this form of sanction is reserved for the
most difficult situations, it is a possible recourse when lesser actions have failed to stop the
abusive behavior.
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CHAPTER 3 - INITIAL PROCESSING
1. ASSIGNMENT TO ADMINISTRATIVE JUDGE.
The CAJ (or designee) assigns cases to the AJs. In making case assignments (or
reassignments), the CAJ considers the AJs’ respective workloads, the geographical location
if there is likely to be a hearing that may be held in-person, the complexity of the appeal,
and other factors as appropriate.
The CAJ and AJ should also consider whether consolidation, joinder, class action, or
intervenor issues are present. Prior to acknowledgment, an AJ may informally request that
an appeal be reassigned on the basis of personal bias or other disqualifying reason. After
acknowledgment, the procedure in section 2 should be followed. When a former employee
of an RO or FO has filed an appeal, it has been deemed appropriate to assign the appeal to
an AJ who was not employed at the RO or FO at the same time as was the appellant, or to
reassign the appeal to a different office.
2. DISQUALIFICATION OF ADMINISTRATIVE JUDGE.
The AJ may recuse himself or herself on the motion of a party or on the AJ’s own motion. A
party may file a motion asking the AJ to withdraw on the basis of personal bias or other
disqualifying reason. If an AJ considers himself or herself disqualified, the AJ will withdraw
from the case, state on the record the reasons for doing so, and another AJ will be assigned
to the case. The CAJ must immediately notify ORO of an AJ’s recusal. See
5 C.F.R.
§ 1201.42. Bases for the disqualification of an AJ include:
a. A party, witness, or representative is a friend or relative of, or has had a close
professional relationship with the AJ; or
b. Personal bias or prejudice of the AJ.
Although the regulation requires that a party request that the AJ certify an
interlocutory appeal to avoid waiver of the issue, absent extraordinary
circumstances, a recusal motion is unlikely to warrant certification under the
requirements of 5 C.F.R. § 1201.92
(see chapter 6, infra) because the law as to
recusal for bias is settled. See, e.g., Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (an AJ’s conduct during the course of a Board
proceeding warrants a new adjudication only if the AJ’s comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible”) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
3. CONSOLIDATION AND JOINDER.
See generally 5 C.F.R. § 1201.36
.
a. Concurrent Processing. Once appeals are consolidated or joined, they are processed
concurrently. Generally, only one hearing is held. As appropriate, one or more
decisions may be issued in a consolidated appeal.
b. 120-Day Deadline. For case-tracking purposes, the 120-day deadline is computed
from the receipt date of whichever appeal was received last by the RO.
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c. Organization of Files in Consolidated and Joined Cases. The MSPB Records Manual is
being revised, so cannot be relied on as final until the amended version is available.
While a single case file has always been used for a joined or consolidated appeal to
keep paperwork to a minimum and the record, whether electronic or not, more
manageable, the processes necessitated by the furlough appeals filed in 2013 have
changed things. Rather than making one of the appellants the lead, a “dummy”
name and docket number are assigned to the consolidation, and while each case is
then consolidated under the dummy, each appellant also has an individual docket
number. This allows for independent action by each appellant without major
changes to the consolidation. For example, under the old system if the lead
appellant chose to withdraw his or her appeal, the docket number and name of the
case would be adversely affected. Under the current system, any appellant’s
withdrawal will not have that effect, and the decision of fewer than all appellants to
file a PFR also does not create a burden as to the entire consolidation.
d. Multi-Region Consolidated Appeals. When the CAJ identifies an appeal as part of a
potential multi-region consolidation, he or she must immediately notify ORO. The
CAJ must provide information concerning the approximate number of appellants in
the consolidation, the agency’s identity, and the name(s) of the appellants’
representative(s). The Board or its designee may rule on a nationwide consolidation.
See section 4d., below, for more on such consolidations.
e. Mass Appeals (RIFs or Furloughs). In addition to the organizational change noted in
subsection c, above, the following procedures may be used to adjudicate appeals
from a large-scale agency action such as an extensive reduction in force (RIF) or
furlough. The ROs may modify these procedures when warranted. In fact, the more
than 33,000 furlough appeals received in 2013 were processed using new and
innovative methods, as well as these tried and true methods.
(1) Group Appeals. Group the appeals by categories for which acknowledgment
orders might be tailored, e.g.:
(a) Appeals having common substantive issues, such as
i. (e.g., RIF appeals) (1) the bona fides of the RIF; (2) competitive area,
competitive level, performance, or subgroup determinations;
(3) assignment rights to specific positions; and (4) transfer of
function issues;
ii. (e.g., furlough appeals) (1) the bona fides of the furlough; (2) same
official duty station and proposing and deciding officials; (3) common
agency file to be used for all appellants.
(b) Appeals having common jurisdiction or timeliness issues;
(c) Appeals having a common representative; and
(d) Appeals by pro se appellants.
While whether the appellant requested a hearing generally had been considered
an appropriate basis for consolidation, the furlough appeals taught that because
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of the likelihood of a party changing his mind after checking the box on the
appeal form saying that he wants a hearing, the utility of that basis may
be limited.
(2) Issue Acknowledgment Orders Appropriate to the Consolidation. The CAJ or
designee may modify the standard acknowledgment orders to address changes in
the processing of mass appeals. Because of the special circumstances presented
by group appeals, normal time limits for issuance of acknowledgment orders may
be modified by the CAJ (or designee). Service requirements may be altered to
eliminate service on represented appellants. In processing the 2013 furlough
appeals, ORO developed standard acknowledgment orders and other documents
specifically tailored to the situation. Should any similar circumstances develop in
the future, it may be appropriate to tailor a new acknowledgment and/or
other order.
(3) Issue an Order of Consolidation. After receiving the agency files, ROs or, if
appropriate, ROs in conjunction with ORO, must make decisions regarding
appropriate consolidations as soon as practicable. Prehearing conferences may
be used to determine which appeals should be consolidated. When the
appropriate consolidations have been decided, the AJ should issue the order of
consolidation. While the size and make-up of a consolidation may be changed
later during the processing of the appeals, it is preferable to make the effort to
properly consolidate cases based on the information presently available at the
earliest point when such a determination is possible.
(4) Develop and Maintain Appeal Files. The AJ may accept submissions only from a
designated representative or a pro se appellant. PII concerning an individual
appellant must go only in that appellant’s individual file; information relevant to
the entire consolidation goes into the consolidated dummy file. If it is discovered
that, either through a party’s pleading or an AJ’s Order, PII of an appellant was
shared with any other appellant, action must be taken immediately to remove the
PII from the record and OCB must be notified so that the extent of the exposure
may be determined and the appropriate notice sent.
(5) Conduct Prehearing Conferences. The AJ may require that some or all
prehearing conferences be conducted formally and be recorded. The AJ also may
require that prehearing conferences be conducted by video conference
or telephone.
(6) Use Bifurcated Hearings. Bifurcated hearings may be held on common issues. A
panel of AJs may sit to hear the evidence regarding the common issue(s), or the
CAJ/ORO may assign one AJ to hear and decide the common issues. After there
is a final decision regarding the common issues, the remaining issues of the
individual cases or consolidations would be heard.
4. CLASS ACTIONS.
See 5 C.F.R. § 1201.27
.
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a. Initial Processing. The initial processing of a class action appeal is identical to that of
an individual appeal. The appeal is acknowledged and the file requested from the
agency. However, the 3-workday time limit for issuing the acknowledgment order
may be waived for efficiency in grouping appeals from potential class members. The
agency must be asked specifically, either in a modification of the acknowledgment
order or in a separate order, to respond to a request to have the appeal processed as
a class action. The Board’s e-filing system may not be used to file a request to hear
a case as a class appeal or any opposition thereto. 5 C.F.R. § 1201.14(c)(1). Thus,
any appeal filed electronically that requests class certification may be rejected, using
the procedures noted above in chapter 2.
b. Standards. The Board’s regulations state that the AJ should be guided, but not
controlled, by the Federal Rules of Civil Procedure in deciding whether to handle an
appeal as a class action. However, it remains true that the class representative must
be able to fairly and adequately protect the interest of the class without a conflict
of interest.
c. Processing of Appeals Certified as a Class Action. The procedures for individual
appeals set forth in the Board’s regulations and in this Handbook generally must be
followed. However, the procedures, including time limits, may be modified as they
are for mass consolidations. The Federal Rules of Civil Procedure and related case
law should also be consulted for guidance concerning additional processing steps and
requirements such as the following:
(1) Identification of all members of the class.
(2) Notification to all class members of the following: the AJ will remove a member
from the class upon his or her request; a decision, favorable or not, will include all
members who do not request exclusion; and any member of the class who does not
request exclusion may participate in the proceeding.
(3) Notification to each class member of any hearing scheduled.
(4) Notification to class members of the initial decision. The decision should describe
the factors that render particular appellants members of the class, and should
include information concerning the right of class members to seek individual relief
where appropriate.
d. Multi-Region Class Action Appeals.
(1) When the CAJ identifies an appeal as a potential multi-region class action, he or
she must immediately notify ORO. The CAJ must provide the name of the
representative of the potential class, the approximate number in the class, and
the agency’s identity based on the evidence then available.
(2) A copy of the appeal, request for certification, and any other relevant document
must be sent to ORO as expeditiously as possible, by overnight mail if the day of
ORO’s receipt will be a workday, by fax, or a scanned copy by e-mail. As noted
above, a request for class action status may not be e-filed.
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(3) ORO will notify all ROs and may direct that affected appeals be held in abeyance
pending further notice.
(4) ORO will notify OCB, OGC, the Director of OAC, and the Chief Counsels to the
Board of the pending action.
(5) Cases may be assigned to an ALJ, an AJ, or the Board for ruling on a motion for
certification of a class action.
(6) Following a ruling, regions shall advise the parties of any reassignment of cases
and forward appeals to the designated AJ(s).
5. INTERVENTION.
See generally 5 C.F.R. § 1201.34
.
a. Intervenors as a Matter of Right. The Director of OPM and the OSC may intervene as
a matter of right in a proceeding before the Board, but OSC may not intervene in an
action brought by an individual under
5 U.S.C. § 1221 or in an appeal brought by an
individual under 5 U.S.C. § 7701 and § 7702 without the consent of the individual.
(1) Before Intervention. If a representative of OPM or the OSC asks to review a file
to determine whether to intervene, the request must be granted, subject to the
caveat as to OSC in section 5.a., above. The CAJ or AJ should invite the
representative to visit the RO to conduct the review. The fact of the review will
be documented (by a memorandum placed in the file), as required by the Privacy
Act. A request by OPM or OSC for a copy of the appeal file, or a portion thereof,
to decide whether to intervene should be granted unless compliance would
constitute an undue hardship on the resources of the RO. That may not generally
be a problem, though, because most files are available in electronic form,
regardless of whether they are designated as Electronic Case Files (ECFs).
(2) After Intervention. When OPM or OSC has intervened in an appeal, it may have
access to the file. Upon request, copies of documents in the file are to be
provided to OPM and/or the OSC. Also after intervention, the intervenor must be
added to the certificate of service.
b. Permissive Intervenors. The AJ is delegated the authority to rule on motions for
permissive intervention. The AJ must invite any person directly affected by the
outcome of the proceeding to intervene, especially in retirement cases involving
competing beneficiaries. Any employee alleged to have committed a prohibited
personnel practice may, upon request, be granted status as an intervenor. Once a
motion for intervention has been granted, the AJ must provide copies of the specific
documents requested and/or all or that part of the appeal file that concerns the
issue(s) affecting the intervenor. Because permissive intervenors may only
participate on the issues affecting them, it may not be necessary or appropriate to
provide a copy of the entire file, depending on the circumstances.
c. Amicus curiae. Any person or organization, including those who do not qualify as
intervenors, may be granted permission to file a brief as an amicus curiae, in the
discretion of the AJ. See also chapter 10, section 7, infra. E-filing may not be used
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to file a request to participate as an amicus curiae or file a brief as amicus curiae.
5 C.F.R. § 1201.14(c)(6).
6. SENSITIVE APPEALS.
In screening and processing appeals, the CAJ and AJ should determine if they present or
might develop “sensitive” issues.
a. Criteria. An appeal is sensitive if it meets any of the following criteria:
(1) The appellant occupies a key agency position or manages a controversial
program in which there is substantial public interest;
(2) OPM or the OSC has intervened;
(3) It involves media interest, other publicity, or substantial Congressional
interest; or
(4) It is determined to be sensitive by the CAJ on other grounds, including that the
appellant made a very significant whistleblower disclosure.
b. Reporting Requirement. The RO must promptly report a sensitive case to ORO by
e-mail or by fax. The report should fully explain the reasons that the appeal is
considered sensitive. When in the CAJ’s judgment additional material (e.g., appeal,
newspaper articles, letter of charges, etc.) may be necessary to explain the
sensitivity of the case, a copy of such materials should be faxed or e-mailed.
ORO will forward the region’s sensitive case report to the Chairman; Vice Chairman;
Member; Chief Counsel to each Board Member; the General Counsel; Director, OAC;
and OCB.
The processing of a sensitive case is not to be delayed because of this additional
procedure. Significant developments that occur during the processing of the case
should be reported to ORO.
CAJs may wish to take a somewhat broad view of the “sensitive appeals” criteria to
assure that all cases of which ORO and the Board should be aware are reported.
7. ACKNOWLEDGMENT AND SHOW CAUSE ORDERS.
Prior to the assignment of an appeal, the CAJ (or designee) should make every effort to
ensure that the parties receive clear and relevant information related to MSPB’s processing
of the appeal. A special effort should be made to inform the parties of the burdens and
standards of proof applicable to their appeal because an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue. Burgess v.
Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985). Further, the Board requires
that even beyond jurisdiction, the AJ must explain the burdens and methods of proof of any
claim as to which the appellant has some or all of the burden of proof or production in
an appeal:
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[W]hen an appellant raises an affirmative defense in an appeal either by checking
the appropriate box in an appeal form, identifying an affirmative defense by name
such as “race discrimination,” “harmful procedural error,” etc., or by alleging facts
that reasonably raise such an affirmative defense, the AJ must address the
affirmative defense(s) in any close of record order or prehearing conference
summary and order. If an appellant expresses the intention to withdraw such an
affirmative defense, in the close of record order or prehearing conference order the
AJ must, at a minimum, identify the affirmative defense, explain that the Board will
no longer consider it when deciding the appeal, and give an appellant an opportunity
to object to withdrawal of the affirmative defense. Wynn v. U.S. Postal Service,
115 M.S.P.R. 146, ¶ 10 (2010).
Where a standard acknowledgment order is available in HotDocs, it should be used. In the
absence of such standard language, the AJ should provide the necessary information. If
there are repetitive situations which an AJ, CAJ, or RD believes should be covered by a
standard acknowledgment order, ORO should be notified.
a. Time Requirement. If the CAJ (or designee) determines that the appeal may be
processed by the RO, an acknowledgment or show cause order must be issued to the
parties within 3 workdays of receipt of the appeal except as provided above with
respect to premature and consolidated appeals.
b. Tailoring of Standardized Orders. The standardized acknowledgment orders are a
general guide to language that may be applicable to a specific case. These orders
were designed to provide notice of the general procedures that will apply to the
adjudication of the appeal. They cover a wide range of possibilities including
information on hearings, discovery, settlement, designation of representative, issues
of timeliness and jurisdiction, general instructions and forms (Privacy Act statements
and designation of representative forms), and schedules. The AJ should modify the
standard order, only if necessary, to adjust it to the circumstances of the appeal.
Regarding timeliness and jurisdiction issues, tailoring may require inclusion of
specific dates or jurisdictional issues in question (e.g., see chapter 2, section 2b). As
noted above, any applicable substantive law should be set out in the
acknowledgment or subsequent show cause orders to avoid a remand based on a
finding that the parties had not been provided explicit instructions regarding their
burdens and responsibilities.
The AJ must provide the necessary notice. The various possibilities for an initial
order range from a show cause order addressing timeliness and/or jurisdiction to a
complete acknowledgment order covering all aspects of guidance including
information on hearings, discovery, etc. Sometimes, follow-up orders may be
necessary to clarify issues or to provide guidance not provided in the previous order
before the matters being appealed became clear. In any event, any time an issue is
raised that may be acceptable for consideration, the AJ must provide the appropriate
notice to the appellant. Even when the potentially jurisdictional matter cannot
properly be addressed in the current appeal, the appellant should be informed of the
possible appealability of the issue as a separate case.
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c. Attachments (Schedules). Any documents attached to the acknowledgment order
must be included in the appeal file.
8. SPECIAL PROCEDURES FOR RETIREMENT APPEALS FROM THE PHILIPPINES.
a. Untimely Appeals. While Postal service to the Philippines has improved over time,
and the number of appeals filed by its residents has diminished, all untimely appeals
from retirement-related actions received from the Philippines must still be processed
under the following procedures:
(1) Issue a show cause order requiring the appellant to explain the delay. Allow
30 days for the appellant to file a response.
(2) Liberally construe “good cause” for appeals filed within 6 months from the date of
the OPM reconsideration decision.
(3) Consider a showing of good cause to include a claim of late mail delivery, unless
the claim is countered by specific evidence of timely receipt.
b. Close of Record.
(1) In cases involving retirement appeals received from the Philippines, including
those that raise issues of jurisdiction and timeliness, the record must not be
closed before the 60th day.
(2) Close of record orders and all other orders requiring and/or allowing submissions
will provide for a minimum of 30 days for filing the submissions.
c. Issuance of Initial Decisions. IDs should not be issued before the 75th day. In all
cases, the ID should not be issued until at least 15 days after the close of
record date.
9. OBLIGATION TO FURNISH OPM WITH INFORMATION.
The Board is required to notify OPM of cases in which the interpretation of any civil service
law, rule, or regulation under OPM’s jurisdiction is at issue. See 5 U.S.C. § 7701(d)(2)
.
This requirement is met by sending OPM copies of the IDs issued by the RO. OPM will rarely
intervene before an AJ, but as noted above, it is entitled to do so.
10. ORGANIZATION OF THE APPEAL FILE.
Instructions for the proper organization of initial appeal case files are found in chapter 4 of
the Board’s Records Manual. As noted earlier, the Records Manual is undergoing revision
and all references to it therefore are subject to change.
While the Board’s Records Manual is being revised and has not been reissued, in general it
is required that all case-related documents, including the hearing record whether stored on
tapes, as a paper transcript, or as ESI (electronically stored information), if any, be included
in the case file. Documents to be excluded from the case file are Congressional, FOIA, and
Privacy Act correspondence. The file documents are kept in chronological order with the
most recent document on top. The documents are tabbed, and there is an index clearly
describing each document in the file. If a paper file exceeds approximately 2 inches in
thickness, a new volume should be created and copies of the index included in each file
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volume. If a submission is too large to fit within the volume where it would normally be
placed, it may be kept separately, marked with the tab number it would have had if it had
been placed in the chronological volume. When this is done, the submission should be
given a separate volume number(s) and a tab should be placed in the chronological volume
indicating its location. If because of changes in Board procedures initiated since the
Records Manual was last updated (such as e-Appeal, e-filing, recordation of hearings on
DVD or electronically, etc.) or other reasons, the Records Manual does not cover the specific
situation presented, it should be adapted as appropriate to the facts with which the office is
dealing. Seeking the advice of the records specialist in OCB is often appropriate.
Note that although the Board now directs the parties to number the pages within all tabs of
each submission, the RO or FO should not undertake to do so for them if they fail to comply,
since documents in the record should remain as they were when the parties submitted
them. Any statement to the contrary in the Records Manual should not be applied to the
original submission, but may of course be followed when marking up a copy of it.
11. FAX SUBMISSIONS.
A faxed copy of a document qualifies as an “official record” when it is the first copy of a
submission received by the RO. Therefore, absent legibility problems with the fax, a
duplicate paper copy received by a different form of delivery need not be kept. In addition
to legibility, however, the disposition of any duplicate copies should depend on timeliness
and completeness. That is, before disposing of any copy of a submission, the office must
ascertain that the second document is, in fact, a duplicate of the fax, and that the fax is
fully legible. Because there may also be instances when a fax, although received first, was
filed late, but the original document later received by mail is postmarked as timely, it is
important to save evidence of timely filing. If there are no problems with timeliness,
legibility, or completeness, the office may keep either the faxed copy or the original in the
record, and must save the evidence of the earliest filing date (fax cover sheet and
identification of the faxed document, postmarked envelope, etc.). More than one copy of
the document itself need not be kept in the record.
12. SUSPENDING CASES FOR DISCOVERY OR SETTLEMENT.
The Board’s regulations provide the AJ with discretion to issue an order suspending the
processing of an appeal for up to 30 days. See 5 C.F.R. § 1201.28
. No more than two
suspension periods of up to 30 days each are permitted. Restrictions on when a request to
suspend a case must be filed have been eliminated. The revised regulation clarifies that
when an appeal is accepted into the Board’s Mediation Appeals Program (MAP), the
processing of the appeal and all deadlines are automatically suspended until the mediator
returns the case to the AJ.
5 C.F.R. § 1201.28(d). This provision is particular to MAP and
does not apply if the parties enter into other forms of alternative dispute resolution. A MAP
suspension is not counted as one of the 30-day suspension periods allowed by
the regulations.
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CHAPTER 4 - HEARINGS, SCHEDULING AND ARRANGING
1. HEARING REQUESTS.
A hearing must be held if the appellant requests one and the appeal is timely filed and
within the Board’s jurisdiction. While case law and aspects of the Board’s regulations have
changed over time, the rules concerning the burdens and degree of proof necessary to
support jurisdiction, merits, and affirmative defense determinations are set out at 5 C.F.R.
§§ 1201.56, 1201.57. When it is unchallenged that an appeal is within the Board’s
jurisdiction, the appellant has the right to a hearing if he requests one. When jurisdiction is
at issue, the regulations provide that for all but four types of appeals the appellant bears
the burden of proof by a preponderance of the evidence as defined at 5 C.F.R. § 1201.4(q)
before entitlement to an appeal is established. As to (1) IRA appeals, (2) appeals under
VEOA, (3) USERRA, and (4) restoration to duty appeals following military service or
recovery from a compensable injury, except for proving exhaustion of a required statutory
complaint process and standing to appeal (see 5 C.F.R. §§ 1201.57(c)(1) and (c)(3)), to
establish jurisdiction, an appellant who initiates such an appeal must make nonfrivolous
allegations concerning the substantive jurisdictional elements applicable to the particular
type of appeal. The definition of nonfrivolous allegation is found in 5 C.F.R. § 1201.4(s).
As to all types of appeals, timeliness must ultimately be established by a preponderance of
the evidence but an appellant who raises a nonfrivolous allegation as to the timeliness of an
appeal is also entitled to a hearing if there is a material factual question involved. See
Meyer v. U.S. Postal Service
, 79 M.S.P.R. 667 (1998). In addition, the AJ has the discretion
to grant a request for a hearing on a motion for attorney fees or a petition for enforcement,
and in VEOA appeals (in USERRA appeals, the appellant has a right to a hearing after
jurisdiction is established). See, e.g.,
Popham v. U.S. Postal Service, 50 M.S.P.R. 193
(1991) (threshold timeliness and jurisdictional determinations); Dodd v Department of
Interior, 48 M.S.P.R. 582, 584 (1991) (the appellant has the right to a hearing; the agency
and the AJ do not, except as provided in 5 C.F.R. § 1201.45(b)(5)); 5 C.F.R. §§ 1208.13(b),
1208.23(b). The hearing may be in person, or within the limitations discussed below, by
telephone, or by video conference.
Just as it is the appellant’s right to have a hearing, the Board has held that if the appellant
chooses to waive that right, the AJ may not require that a hearing be held. See, e.g.,
Grimes v. General Services Administration
, 84 M.S.P.R. 244 (1999). Nor does the agency
have a right to a hearing when the appellant rejects the opportunity to have one. Johnson
v. Department of the Interior, 87 M.S.P.R. 359 (2000). Of course, the AJ retains the right
to have the parties develop the record on issues that must be decided, but despite 5 C.F.R.
§ 1201.41(b)(5), which states that an AJ may order a hearing on his or her initiative, the
cases listed here render that provision moot.
2. CONDITIONAL OR AMBIGUOUS REQUESTS.
If the appellant makes a conditional or ambiguous request for a hearing, the AJ must issue
an order granting the appellant a specific time to make an unequivocal election. The
appellant must be advised that if the right to a hearing is waived, an opportunity to submit
written evidence and argument will be provided. This information may also be provided by
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means of a telephonic conference with subsequent documentation. In any event, the
waiver must be clear and unequivocal, and the record must reflect that it is.
3. USE OF HEARING NOTICE.
When a hearing is scheduled, the AJ must issue a written hearing notice and should use the
standardized HotDocs hearing order (ON/15), which also provides for scheduling status and
prehearing conferences. If the hearing is rescheduled, notice will usually be given to the
parties in writing even if it is to confirm oral instructions, using the HotDocs ON/20
template. If the AJ considers the case appropriate for a bench decision (discussed in
chapter 12, section 5 of this Handbook), or it is even a possibility, in order to comply with
chapter 9, section 2e and chapter 12, section 5a, the AJ should notify the parties of this
possibility by adding the appropriate paragraph to the hearing order.
4. ADVANCE NOTICE.
The hearing may not be scheduled earlier than 15 days from the date of the notice unless
the parties agree to an earlier date. 5 C.F.R. § 1201.51
. Any such agreement must be
documented. This requirement does not apply when a hearing is rescheduled. However, to
give parties the opportunity to conduct discovery, prepare their cases, and discuss
settlement, the AJ should usually provide 30 to 60 days’ notice of the hearing date.
Optimally, the hearing will be held within 75 days of the date of receipt of the appeal,
although given case suspensions, lengthy discovery requests, drawn out settlement
discussions, etc., this may not always be possible or advisable. As noted above, the parties
should be provided advance notice of the possibility of a bench decision in the appeal.
5. DISTRIBUTION OF NOTICE; COURT REPORTER CONTRACT.
a. Notice. The hearing notice must be sent to the appellant, designated
representatives, and intervenors. The RO is responsible for timely securing court
reporting services. Accordingly, it is a good practice for the RO to send hearing
notices or a copy of the office’s hearing calendar to the court reporter in addition to
any other notice required under the specific Court Reporting Services General
Requirements agreement. The RO is also responsible for notifying the court reporter
of any cancellation or postponement of a hearing to avoid incurring appearance fees.
b. Court Reporting Services General Requirements Agreement. To carry out its
statutory responsibility, 5 U.S.C. § 7701(a)(1), the Board has established a series of
contracts with court reporting services. Those contracts provide a specific statement
of work and requirements covering all aspects of the services provided, including
inspection and acceptance of the tapes and/or transcripts or CDs, damages, and
other recourse if the work is not completed properly. Use of such contract services is
advantageous to the Board and the parties that appear before it, and it is Board
policy that all recording and reporting services that are not done by the AJ are to be
provided under contracts established by these requirements except in exceptional
circumstances, such as when a hearing is to be held in a location where no contract
court reporting service is available. The administrative staffs of each office are
therefore expected to use contract firms when arranging for court reporting services.
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Any RO or FO that may on occasion use any less formal source of recording and
reporting services should instead assure that all such services are provided according
to contracts. If, because of the remote location of any overseas hearing or for any
other reason, an office has found it is not possible to procure these services on its
own, it should make arrangements with the Board’s Financial and Administrative
Division, through ORO, to seek assistance so that conforming contracts can be
established in advance of any specific need. Only in extraordinary circumstances,
with the concurrence of ORO, may services be provided by others, such as agencies,
and only after appropriate arrangements for payment and accountability have been
made. See also chapter 10, section 18, infra, concerning recording, erasing, and
correcting a hearing tape and compact diskette (CD).
6. HEARING LOCATION.
If a hearing is to be held in person, it will generally be held in a city designated as an
approved fixed site, as listed on the Board’s website, www.mspb.gov
. Since these sites are
approved rather than required sites, it is within the discretion of the AJ, subject to review by
the CAJ, to schedule the hearing at nondesignated sites.
5 C.F.R. § 1201.51(d). Some
factors to consider before scheduling a hearing at a nondesignated site are the following:
(1) availability of suitable facilities; (2) the distance from the agency’s location to the
designated hearing site and the alternative hearing site; (3) accessibility of the hearing sites
to the AJ and witnesses; and (4) the travel expenses for the Board and the parties.
An AJ may require the agency to provide appropriate hearing space. The AJ is not required
to accept inadequate facilities.
If a party objects to the hearing site set by the AJ, the objecting party should be asked to
provide a basis for the objection. The AJ should consider changing the hearing site if the
objecting party shows that a different location will be more advantageous to all parties and
to the Board. The AJ should make the parties aware that there is no statutory or regulatory
right to a neutral hearing site. Rather, 5 U.S.C. § 7701(a)(1)
merely provides that the
appellant has a right to a hearing. In general, if the appellant objects to the use of agency
facilities, for example, by asserting possible prejudice to the case, alternate facilities near
the agency should be considered.
While the improving technology of video hearings has reduced the number of in-person
hearings held, for all out-of-town hearings requiring travel, special effort should be made to
group cases so that more than one hearing will be conducted on each trip.
7. TELEPHONE HEARINGS.
See chapter 10, section 6, concerning the limited circumstances in which a telephone
hearing may be held.
8. VIDEO HEARINGS.
See chapter 10, section 6, concerning video hearings.
9. MOTIONS FOR POSTPONEMENT OF THE HEARING.
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a. Form of Request. Motions for postponement must be made in writing and must be
supported by an affidavit or be submitted in accordance with 28 U.S.C. § 1746,
which generally provides that, when there is a requirement for providing a
supporting affidavit, the requirement may be satisfied by an unsworn declaration
made under penalty of perjury. The AJ should refer the party to Appendix IV to
part 1201 of the Board’s regulations for a sample sworn statement. When there is
inadequate time for a written request for postponement, an oral request during a
conference call can suffice. An affidavit in support of an oral request is not
necessary if the AJ notes in his or her written summary of the conference that
postponement was ordered based on good cause shown.
b. Good Cause Requirement. Before the AJ grants a motion for postponement of the
hearing, the party making the motion must make a showing of good cause. 5 C.F.R.
§ 1201.51(c). Events within the control of the parties, such as poor planning, lack of
foresight, or actions of the parties which, if taken expeditiously, would have avoided
the need for a postponement, are not likely to meet this requirement. The AJ should
consider, inter alia, the requirements of due process, objection or lack thereof by the
opposing party, and the requirements of expeditious case processing.
In determining whether good cause exists to grant a party’s request for a
continuance, the AJ should consider the specific reasons for the request. Where a
witness’s unavailability is the reason, this includes why the party considers the
witness’ testimony essential and how long the party was aware that the witness
would be unavailable before the AJ and the other party were informed of the need
for a delay, whether the party could have anticipated the delay and preserved the
testimony through a deposition or an affidavit, the availability to the party of
alternative sources of proof, the length of the delay sought, the extent of the
financial burden placed on the other party by the delay, and whether the testimony
may be obtained by alternate means.
Alternatives to postponement should always be considered. For example, if a
witness is unavailable on a scheduled hearing date, consideration should be given to
taking the testimony by means of a sworn statement, interrogatories, a deposition,
an affidavit, telephone, or a stipulation. A videotaped deposition may be appropriate
if there is a credibility issue. It may be useful to have a single unavailable witness
testify by video at a different time, while holding the majority of the hearing
on schedule.
10. DISMISSAL WITHOUT PREJUDICE.
a. When good cause is shown for an indefinite or a lengthy postponement, a dismissal
without prejudice to refile may be appropriate. This procedural option allows for the
dismissal and subsequent refiling of an appeal by a certain date. Dismissal without
prejudice may be granted on the AJ’s own motion or upon request by either party.
5 C.F.R. § 1201.29(b). Dismissal may be granted when the interest of fairness, due
process and administrative efficiency outweigh any prejudice to either party. Id.
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Except in certain USERRA appeals under part 1208 involving the use of military
leave, an AJ’s decision dismissing an appeal without prejudice should include a date
certain by which the appeal must be refiled. 5 C.F.R. § 1201.29(c). A time limit for
refiling need not be set, though when the appellant suffers from a mental incapacity
and will not cooperate with the adjudication of his appeal under French procedures.
Brown v. Office of Personnel Management, 94 M.S.P.R. 331 (2003). In those
circumstances, because the time line for the appellant’s recovery may be uncertain,
it would not be appropriate to set a refiling deadline. An AJ should determine
whether the appeal must be refiled by the appellant or whether it will be refiled
automatically by a specified date. Id. When the appellant must refile a dismissed
appeal, requests for waiver of a late filing based upon good cause will be liberally
construed. 5 C.F.R. § 1201.29(d). When a dismissal without prejudice is issued
over the objection of the appellant, the appeal will be automatically refiled by a date
specified by the AJ. 5 C.F.R. § 1201.29(c).
The Board in Milner v. Department of Justice
, 87 M.S.P.R. 660 (2001), set a special
rule for USERRA appeals. It specified that a USERRA appeal that has been dismissed
without prejudice “will be considered automatically refiled by the date set forth in the
dismissal order, unless there is evidence that the appellant has abandoned the case.”
Id., ¶ 13. The Board later set the same rule for VEOA appeals. Gingery v.
Department of the Treasury, 111 M.S.P.R. 134, ¶ 13 (2009).
b. Pending Criminal Prosecution. The processing of an appeal is not automatically
terminated (and is never suspended indefinitely) because the appellant is involved in
a criminal prosecution. However, such appeals may be dismissed without prejudice
pending resolution of the criminal matter under the following circumstances:
(1) At the request of the prosecuting authority or when it appears that going forward
with the appeal would hinder the prosecution;
(2) At the request of the appellant or the agency when the trial verdict could have a
material effect on the appeal;
(3) When the appellant reasonably asserts that the defense in the criminal action
could be jeopardized by the Board proceeding;
(4) When relevant information concerning the appeal is not available or cannot be
obtained because of the pending prosecution; or
(5) For other sufficient reasons, such as conserving Board resources (e.g., when the
parties agree to be bound by the results of a court case).
The event triggering the need to refile should be set out with precision so that a
party is not late in refiling as a result of any ambiguity in the dismissal order. For
example, if the appellant may exhaust some or all appeals beyond the trial level
before refiling, the dismissal order should specify at exactly which stage to refile.
c. Ruling on a Motion for Postponement. The decision on the motion must be made in
writing and must document the reasons for the ruling. If the motion was made at
the hearing, a ruling on the record is sufficient.
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d. Late refiling. When an appeal that must be refiled by the appellant is refiled late, the
standard good cause considerations that apply to a late-filed initial appeal are
modified when determining whether to accept the late refiling. See Gaddy v.
Department of the Navy, 100 M.S.P.R. 485, ¶ 13 (2005), stating that the Board has
identified the following factors as supporting a finding of good cause for waiving the
refiling deadline: the appellant’s pro se status, timely filing of the initial appeal,
intent throughout the proceedings to file an appeal, minimal delay in refiling, and
any confusion; the small number of dismissals without prejudice; an arbitrary refiling
deadline; the agency’s failure to object to the dismissal without prejudice; and the
lack of prejudice to the agency in allowing the refiled appeal.
11. PUBLIC HEARINGS.
Generally, the Board’s hearings are open to the public. However, the AJ may order a
hearing or any part of a hearing closed when doing so would be in the best interests of the
appellant, a witness, the public, or any other person affected by the proceeding. See
5 C.F.R. § 1201.52
. See also chapter 10, section 3 of this Handbook. If an AJ closes a
hearing or a part of it, the AJ or court reporter must annotate the hearing transcript or CD
to indicate that the testimony was taken during a closed hearing. A brief explanation
setting forth the basis for closing the hearing should be included in the record. Any
objections to the order should be made part of the record as well. In
Wallace v.
Department of Health & Human Services, 89 M.S.P.R. 178 (2001), the Board held that the
AJ’s authority to close all or part of a hearing and to offer other methods of assuring privacy
renders invalid a claim that a witness was not called because of privacy concerns. Thus,
such a witness’s written statement in lieu of testimony is assigned little probative value.
The AJ, therefore, should inform a party who interposes an objection based on privacy of
the option of closing the hearing during that witness’s testimony.
If a hearing is open but the appeal has attracted the public’s attention, the AJ may be able
to avoid the possibility of disruption by having the public attendees view the hearing on
video from another room at the RO or FO, if one is available.
Absent express approval from the AJ, no electronic device such as cell phones, text devices,
or any other two-way communications device may be operated and/or powered on in the
hearing room. 5 C.F.R. § 1201.52(b). Further, cameras, recording devices and/or
transmitting devices are not to be operated, operational and/or powered on in the hearing
room without the consent of the AJ. Absent the AJ’s approval, all such electronic devices
must be turned off in the hearing room. Id.
12. CONDUCT OF PARTIES - SANCTIONS.
An AJ may exclude any person, including a party or representative, from all or any portion
of a Board proceeding because of the person’s contumacious conduct, lack of decorum, or
other disruptive behavior. See 5 C.F.R. §§ 1201.31(d), 1201.41(b)
, 1201.43. The AJ may
exercise such authority at a hearing or at any other point in a proceeding, such as a
settlement conference or prehearing conference. The reasons for the exclusion must be
documented in the record. If a representative is excluded, the represented party should be
given reasonable time to obtain new representation.
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In one situation, Smets v. Department of the Navy, 117 M.S.P.R. 164 (2011), the
Board affirmed the AJs finding that the representative and the appellant had been
repeatedly disrespectful and unprofessional in their course of conduct, culminating in
their appearance at the hearing only to request a decision on the record. The Board
affirmed the AJ’s decision to invoke as a sanction disallowing the appellant from
introducing evidence in support of a recently raised allegation of
disability discrimination.
In another case involving the same representative, the Board agreed with the AJ that
the appellant’s representative had been proceeding in bad faith, but he and the
appellant showed up for the hearing, albeit to press for reconsideration of
long-decided matters, then insisted on a decision on the record rather than go
forward with the hearing when his motion to reconsider was denied. The AJ also
denied the motion to dispense with the hearing, at which point the agency moved for
the appeal to be dismissed with prejudice, which the AJ took under advisement, then
granted. The Board affirmed the ID, finding that the appellant and her
representative had proceeded in bad faith. Davis v. Department of Commerce,
120 M.S.P.R. 34 (2013).
Despite these situations, dismissal of the appeal as a sanction remains rare and
generally should only be invoked if lesser sanctions are insufficient to achieve
compliance with the rules and appropriate conduct.
13. FAILURE OF A PARTY OR REPRESENTATIVE TO APPEAR.
a. Appellant. If the appellant and the appellant’s designated representative (if any) fail
to appear for the scheduled hearing, the hearing cannot proceed. The AJ should try
to call the appellant, and if unsuccessful in making contact, wait a reasonable time
before cancelling the hearing in case the appellant is merely tardy.
If neither the appellant nor the appellant’s representative appears, the AJ must issue
a show cause order that requires the appellant to show good cause for his or her
absence. The AJ must then follow up with a second order either rescheduling the
hearing if the appellant establishes good cause, or setting the date for the close of
the record if the appellant fails to respond to the order or if the response fails to
show good cause. In the latter instance, the appeal must be adjudicated on the
basis of the written record only. See Callahan v. Department of the Navy, 748 F.2d
1556 (Fed. Cir. 1984).
If the show cause order has informed the appellant that failure to respond may result
in the dismissal of the appeal for failure to prosecute, the AJ may also consider
dismissing the appeal on that basis. However, because a single failure to comply
with an AJ’s order is not a sufficient reason to dismiss an appeal, dismissal should
only be considered if the failure to appear at the hearing is part of a broader pattern
of neglect by the appellant and the dismissal is based on the entire pattern of that
behavior.
Cf. Talbot v. Department of the Interior, 83 M.S.P.R. 325 (1999)
(then-Vice Chair Slavet dissenting), which upheld the cancellation of the hearing and
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the ultimate dismissal of the appeal for the appellant’s failure to prosecute it, based
on his several failures to comply with the AJ’s prehearing orders and to show good
cause for such failures.
b. The Appellant’s Representative. If the appellant fails to appear for the hearing, but
the appellant’s representative does appear, the AJ must inform the representative
that the following alternatives are available: (1) proceeding with the hearing;
(2) having a decision on the written record; or (3) requesting a continuance.
See
Sparks v. U.S. Postal Service, 32 M.S.P.R. 422 (1987). The appellant’s
representative must show good cause to obtain a continuance.
c. Agency or Intervenor. If either the agency or an intervenor fails to appear, the
hearing, absent extraordinary circumstances, will proceed as scheduled after the AJ
has waited a reasonable time for the absent representative to appear and has
attempted to contact him or her.
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CHAPTER 5 - MOTIONS
1. FORM OF MOTIONS.
Motions must be in writing, unless they are made in a prehearing or status conference or at
a hearing.
2. RULING ON MOTIONS.
a. Time Limits for Rulings. Although the Board’s regulations contain no time limits for
ruling on motions, an AJ should dispose of motions as quickly as possible.
Accordingly, an AJ should take only a minimum number of motions
under advisement.
b. Due Process Considerations. The AJ should not rule on substantive, controversial or
complex motions without allowing the opposing party an opportunity to object. The
AJ may initiate a conference call with the parties both to discuss the motion and to
make an oral ruling. A conference call is especially appropriate when more facts are
needed or the matter is time-sensitive. Frequently, the issue may be resolved
without a ruling. If a ruling is needed, however, the AJ may rule orally and
subsequently must memorialize his or her ruling or, rarely, take the motion under
advisement for a later written ruling. Alternatively, if the opposing party files a
written response or fails to timely respond to the motion, the AJ may rule on the
motion in a written order. In either case, the AJ should rule promptly.
Motions that are clearly without merit, inexplicably late, or clearly noncontroversial,
may be ruled on without seeking input from the opposing party. If an objection is
received after a ruling is made, the AJ, according to the circumstances, may treat
the objection as a motion for reconsideration of that ruling and, after consideration
of the response, issue a new ruling either affirming the first or concluding differently.
3. MEMORIALIZATION OF RULINGS.
For every motion filed, the record must show a written disposition, i.e., GRANTED, DENIED,
or WITHDRAWN. Thus, oral rulings and discussions must be memorialized in a written order
reiterating the rulings made, compromises reached, or other dispositions of the motion.
That order should be served on all the parties as soon as possible after the conference call,
after receipt of a written response to the motion, or after the expiration of the deadline for
responding to the motion. However, when the disposition of the motion is recorded on the
official tape, CD, or transcript, including any official tape recording or CD of a prehearing or
status conference, the requirement for a written disposition is met by the tape or transcript.
It is important to assure that the record contains a clear ruling on all motions that may be
significant so that the record reflects fully the AJ’s actions and decisions.
If the motion is noncontroversial, has not been objected to, and is granted, the AJ’s order
need not contain reasons for the ruling. Otherwise, the order must describe the motion and
the AJ’s reasons for granting or denying the motion.
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CHAPTER 6 - INTERLOCUTORY APPEALS
1. INTRODUCTION.
An interlocutory appeal is an appeal to the Board of a ruling made by an AJ during the
processing of the case. The Board’s regulations governing interlocutory appeals are set out
at 5 C.F.R. §§ 1201.91-.93
.
2. CRITERIA FOR CERTIFYING INTERLOCUTORY APPEALS.
Under the Board’s regulations, an AJ will certify an interlocutory appeal from a ruling only if
the record shows that the ruling involves an important question of law or policy about which
there is substantial ground for difference of opinion and an immediate decision will
materially advance the completion of the proceeding, or the denial of an immediate decision
will cause undue harm to a party or the public. See 5 C.F.R. § 1201.92
.
a. Criteria Met. Certain rulings, in appropriate circumstances, might meet the criteria
for certification. Examples are:
(1) Denial of a motion to dismiss for lack of jurisdiction, particularly when the
jurisdictional issue is precedential (unlike granting the motion, which can quickly
bring the case to the Board’s attention through a PFR, its denial will lead to
adjudication of the appeal and to potentially unnecessary expense and
inconvenience for the parties, witnesses, and the AJ);
(2) Denial or grant of a motion certifying a class action;
(3) Denial of a motion for permissive intervention;
(4) Denial or grant of a motion to disqualify a designated representative;
(5) Denial of a motion for production of evidence for which a privilege is
claimed; and
(6) Denial of a stay request under 5 C.F.R. § 1209.10(b)
.
b. Criteria Not Met. Certain rulings, by their very nature, generally do not meet the
criteria for an interlocutory appeal. Examples are:
(1) Denial of a motion for a continuance;
(2) Denial of a motion to amend a transcript;
(3) Denial or grant of a motion concerning the production of witnesses;
(4) Denial or grant of a motion concerning the introduction of evidence (other than
those rulings specified in a.5., above); and
(5) Denial of a motion to disqualify an AJ.
3. PROCEDURES.
a. Ruling. The AJ must rule on motions for interlocutory appeals from his or her own
rulings, as well as from rulings on the AJ’s case made by other Board officials. The
Board has noted that the interlocutory appeal regulations contemplate that the AJ
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will make a “ruling” and not merely certify a “question”; further, that an interlocutory
appeal by its very nature does not deal with dispositive issues on the merits.
Olson
v. Department of Veterans Affairs, 92 M.S.P.R. 169 (2002). Thus, AJs should avoid
certifying such matters to the Board.
b. Opportunity to Object. Before ruling on the motion, the AJ must allow the opposing
party the opportunity to object to certification. As with other prehearing motions,
the AJ should consider initiating a conference call with all parties to discuss the
merits of the motion and any objections.
c. Own Motion. The AJ may also certify an issue to the Board on his or her own motion
if it meets the regulatory criteria.
d. Submission of Record to the Board. If the motion is granted, or the AJ certifies the
issue on his or her own motion, the AJ must send the record by standard overnight
delivery to the OCB, within two workdays, except if the appeal has been designated
an ECF.
4. STAYS PENDING INTERLOCUTORY APPEALS.
Pursuant to 5 C.F.R. § 1201.93(c)
, the AJ may stay all proceedings pending Board
resolution of the certified issue or may choose to proceed with processing the appeal. The
choice is committed to the AJ’s sound discretion and may depend on whether any progress
was made during the period while the interlocutory appeal is pending with the Board and
may be undone by the Board’s decision. The certification to the Board must clearly indicate
which course of action the AJ is taking. The passage of time during any stay granted under
this section is separate and distinct from the case suspension procedures under § 1201.28.
If the AJ does not stay the processing of the appeal, the Board may do so while an
interlocutory appeal is pending with it. Id.
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CHAPTER 7 - WITNESSES, SUBPOENAS AND SWORN STATEMENTS
1. REQUESTS FOR WITNESSES.
The parties are required by the standard hearing notices to provide the AJ with a list of
witnesses and a brief summary of their expected testimony. The AJ must rule on all
requests for witnesses. The request must be approved if the AJ finds that the expected
testimony of the witness appears to be relevant, material, and not unduly repetitious.
Generally, the rulings will be made prior to the hearing.
2. OBTAINING WITNESSES FOR HEARINGS AND DEPOSITIONS.
a. Witnesses Employed by the Respondent Agency. The agency must arrange for the
appearance of its employees as witnesses when ordered to do so by the AJ. If the
AJ’s order is not effective, the AJ should consider imposing sanctions under
5 C.F.R.
§ 1201.43.
b. Nonparty Federal Agency Witnesses. The AJ may issue an order to the personnel
officer of the nonparty agency that employs the witness. The order should state the
following: a) the necessity of the employee’s appearance; b) the date, time and
location of the hearing; and c) the agency’s obligation to provide the witness
pursuant to
5 C.F.R. § 1201.33. If the AJ’s order is not effective, granting a
subpoena to the party who requested the witness, rather than imposing sanctions, is
the appropriate course of action, since that agency is not subject to the Board’s
direction, as a party would be.
See Porter v. Department of the Navy, 6 M.S.P.R
301, 303 n.1 (1981).
Whether the witness is employed by the agency that is a party to the appeal or
another Federal agency, the witness is entitled to be in official duty status and to the
pay and benefits that come with that status, including travel and per diem when
necessary. 5 C.F.R. § 1201.33(a).
c. Witnesses Who Are Not Federal Employees. The requesting party is responsible for
securing the appearance of witnesses who are not Federal employees. A party may
request the Board to issue a subpoena to accomplish that end. If granted, the AJ
should advise the requesting party that he or she is responsible for service and
payment of any costs.
3. SUBPOENAS--REGULATORY CITATION; EXCEPTIONS.
See generally 5 C.F.R. §§ 1201.81-.85
. Parties requesting the AJ to issue a subpoena must
show that the evidence sought is “directly material to the issues involved in the appeal.”
5 C.F.R. § 1201.81(c). This standard, therefore, requires more of a showing than mere
relevance; rather, to be “material” means to have probative weight, i.e., testimony or
evidence that is reasonably likely to influence the AJ in making a determination required to
be made.
While AJs may grant or deny subpoena requests according to each circumstance, it is wise
to consult with OGC on cases of special sensitivity before granting a subpoena since if
enforcement is required, it is OGC that will have that task. OGC’s assessment of whether
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courts are likely to enforce such subpoenas and of the policy considerations at play is
valuable information to have in making your ruling. Two examples of when it is not
generally appropriate to grant a subpoena are for Federal employees who serve in positions
similar to the AJ position, such as OWCP Claims Examiners, and for the statements of
witnesses interviewed by OSC during an investigation, who are all promised confidentiality.
Further, a heightened showing of need may be appropriate for high level appointees at
agencies. Factors such as the following are likely to be considered by a Federal district
court when addressing this issue: 1) is the official’s testimony necessary to obtain relevant
information that is not available from another source? 2) does the official have first-hand
information that cannot be reasonably obtained from other sources? 3) is the testimony
essential to the case at hand? 4) would the deposition significantly interfere with the ability
of the official to perform his government duties? and 5) is the evidence sought available
through less burdensome means or alternative sources? See Thomas v. Cate, 2010
WL 1343789, *1 (E.D. Cal. April 5, 2010) (citing U.S. v. Sensient Colors, Inc., 649 F. Supp.
2d 309, 320 (D.N.J. 2009)). Thus, before a subpoena is granted for such an official, the
record should address each of these matters so that both the AJ and OGC have a clearer
idea of the likelihood of success.
Service of a subpoena through use of the Board’s e-filing system is prohibited. 5 C.F.R.
§ 1201.14(c)(2).
4. TIMELY OBJECTIONS TO A SUBPOENA.
The Board’s regulations do not specifically limit the time allowed for objecting to a motion
for a subpoena. Although a party generally is limited to 10 days to object to a motion, such
a limit is not strictly applicable here since a party can object not only when the request is
filed, but also after the subpoena is issued.
5. MOTIONS TO QUASH OR LIMIT.
See 5 C.F.R. § 1201.82
. An AJ may have delegated authority to rule on objections to
subpoenas. The AJ should rule promptly on objections. The AJ should also ensure that the
person receiving the subpoena is made aware of both the objection--assuming he or she
did not file the objection--and the AJ’s ruling. Meeting these responsibilities is essential
since there is no legal obligation to comply with a subpoena as long as an objection is
outstanding or the recipient is unaware of its disposition. See generally Fed. R. Civ. P. 45.
6. MOTIONS FOR ENFORCEMENT.
a. Requirements. If a person has received a subpoena but fails or refuses to comply,
the party requesting the subpoena may apply to the Board in writing for enforcement
in U.S. District Court. When noncompliance relates to discovery, the party seeking
enforcement must file (a) the return of service, documenting proper service, and
(b) an affidavit describing the witness’s failure or refusal to obey the subpoena.
When noncompliance relates to the hearing, the party need file only (a), while the AJ
must document noncompliance. A motion for enforcement may be made verbally at
hearing. 5 C.F.R. § 1201.85(a).
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b. Referral to OGC. After consultation with the CAJ, the AJ must immediately refer the
motion for enforcement to OGC by calling Attorney Jeff Gauger at (202) 254-4488 or
(202) 653-6772, extension 4488. The AJ should be prepared to discuss the matter,
and a copy of the motion must be sent to OGC by overnight delivery, e-mail, or fax
as soon as possible. Where enforcement of subpoenas in multiple jurisdictions may
be involved, the AJ should coordinate with OGC, which will want to consolidate the
enforcement actions when that is an option, to minimize travel. The CAJ should keep
ORO advised of all developments. The AJ must notify the parties that the motion has
been referred to OGC and must continue processing the appeal. If it becomes
necessary, the AJ should consider proceeding to hearing without a ruling on the
motion and allowing the record to remain open pending the ruling. DWOP may be
appropriate if there is likely to be a very lengthy delay.
7. PROTECTIVE ORDERS.
During an investigation by the OSC or during the pendency of any proceeding before the
Board, including nonwhistleblower cases, the AJ may issue an order to protect a witness or
other individual from harassment. An agency (other than OSC) cannot request a protective
order from the Board during the OSC investigation. See 5 U.S.C. § 1204
(e)(1)(B)(i);
5 C.F.R. §§ 1201.55(d), 1201.41(b)(14). Enforcement of a protective order is governed by
5 U.S.C. § 1204(e)(1)(B)(ii) and subpart F of the Board’s regulations.
8. REQUIREMENTS FOR SWORN STATEMENTS.
Any time an AJ requires an affidavit or sworn statement from a party, he or she should refer
the party to Appendix IV to part 1201 of the Board’s regulations for a sample declaration
under 28 U.S.C. § 1746
, which substantially requires:
a. If executed outside the United States: “I declare (or certify, verify, or state) under
penalty of perjury under the laws of the United States of America that the foregoing
is true and correct. Executive on (date). (Signature)”.
b. If executed within the United States, its territories, possessions or commonwealths:
“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is
true and correct. Executive on (date). (Signature)”.
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CHAPTER 8 - DISCOVERY
1. GENERAL.
Board regulations on discovery are set out at 5 C.F.R. §§ 1201.71-.75
. Discovery
regulations have changed substantially during the Board’s existence; thus, earlier case law
in this area may not apply under current regulations. Discovery may progress from
voluntary cooperation when the parties informally request information from each other to
required cooperation when the Board orders compliance. See
5 C.F.R. § 1201.73.
Discovery requests to nonparties and nonparty Federal agencies are limited to information
that appears “directly material” to the issues involved in the appeal. See
5 C.F.R.
§ 1201.72(b). AJs should encourage parties to voluntarily comply with discovery requests,
because discovery is intended to be a process that the parties use to obtain information
relative to an appeal, and it is expected to be conducted with minimum Board intervention.
5 C.F.R. § 1201.71, .72.
2. FEDERAL RULES OF CIVIL PROCEDURE.
If after reviewing the regulations, precedent, and this chapter, the AJ is still unsure how to
rule on a discovery matter, he or she should consult Rules 26-37 of the Federal Rules of
Civil Procedure for guidance. Although the rules are not controlling, an AJ is likely to be on
solid ground by observing them since they represent conventional thought on acceptable
procedures. 5 C.F.R. § 1201.72(a); see also Special Counsel v. Zimmerman
, 36 M.S.P.R.
274, 285 n.7 (1988).
Rule 26(b)(1) of the Federal Rules of Civil Procedure was changed as of December 1, 2015.
Instead of the language that evidence “reasonably calculated” to lead to admissible
evidence is discoverable, the Rule now contains a proportionality limitation. It now states --
Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable.
The Notes of Federal Rule of Civil Procedure 26(b)(1) state that the primary reason for the
change is e-discovery: “The burden or expense of proposed discovery should be
determined in a realistic way. This includes the burden or expense of producing
electronically stored information. Computer-based methods of searching such information
continue to develop, particularly for cases involving large volumes of electronically stored
information. Courts and parties should be willing to consider the opportunities for reducing
the burden or expense of discovery as reliable means of searching electronically stored
information become available.”
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3. FORMS OF DISCOVERY.
a. Document Production. A party may request documents in the possession or control
of another. The party or person in possession of the requested documents may
either provide copies of the documents or make the documents available for
photocopying, subject to the discretion of the AJ to rule on an objection to the
method selected.
b. Interrogatories. Parties may ask each other or a nonparty to answer a series of
written questions. (Note that while 5 C.F.R. § 1201.72(c) refers only to
interrogatories “to parties,” § 1201.73(e) refers to interrogatories to both parties and
nonparties.) These questions must be answered in writing under oath or affirmation.
Absent prior approval by the AJ, interrogatories served upon a party or a nonparty
“may not exceed 25 in number, including all discrete subparts.” 5 C.F.R.
§ 1201.73(e)(1). Requests to exceed the interrogatory limitations may be granted
at the discretion of the AJ. 5 C.F.R. § 1201.73(e)(3). In considering such requests,
the AJ shall consider the factors identified in 5 C.F.R.
§ 1201.72(d).
Note that the Federal Rules of Civil Procedure do not allow for interrogatories to
nonparties. See Fed. R. Civ. P. 33. Although when the regulations were amended in
2008, the Board made explicit its intention to limit the submission of interrogatories
to other parties, see 73 F.R. 18149 (2008), the regulations as revised in 2012 once
again allow for service of interrogatories on nonparties.
c. Depositions. Parties may ask each other or potential witnesses written or oral
questions to be answered under oath or affirmation. The questions and answers are
recorded (at the expense of the requesting party) before a person authorized to
administer oaths and not interested in the outcome of the proceedings, such as a
court reporter. See Fed. R. Civ. P. 28 and 30. Opportunity for cross-examination
is afforded.
Pursuant to 5 C.F.R. § 1201.75, depositions may be taken by any method on which
the parties agree. Accordingly, AJs should not hold the parties to strict compliance
with the Federal Rules of Civil Procedure if (1) the parties have agreed on the
method by which the deposition is taken, and (2) the person providing the
information in the deposition is subject to penalties for intentional false statements.
The record of a deposition may be used to substitute for the hearing testimony of a
witness who is otherwise unavailable. See Fed. R. Civ. P. 32. AJs may also admit
depositions in the interests of efficiency to save hearing time or travel costs. Absent
prior approval by the AJ or agreement by the parties, each party may not take more
than 10 depositions. 5 C.F.R. § 1201.73(e)(2)
. Requests to exceed the deposition
limitations may be granted at the discretion of the AJ. 5 C.F.R. § 1201.73(e)(3). In
considering such requests, the AJ shall consider the factors identified in 5 C.F.R.
§
1201.72(d).
d. Request for Admissions. A request for admissions is a request that the other party
admit in writing, the truth of certain matters “relating to (A) facts, the application of
law to fact, or opinions about either; and (B) the genuineness of any described
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documents” concerning the appeal. See Fed. R. Civ. P. 36(a). The purpose of this
procedure is to establish facts so that there is no need to present evidence to prove
them at the hearing.
4. VOLUNTARY DISCOVERY.
a. Parties’ Responsibility. Voluntary discovery is a policy designed to conserve Board
resources by giving the parties control over discovery. The parties should be
encouraged to cooperate in exchanging information concerning the appeal.
b. AJ’s Responsibility. The AJ should send out the acknowledgment order and hearing
notice to the parties as soon as possible so that they can pace their discovery efforts.
The AJ should also inquire about discovery during early conferences, and if it
becomes necessary, offer informal direction. This enables the AJ to learn the status
of voluntary discovery efforts and identify potential problems that might delay the
process. To facilitate the process, an AJ may assist in negotiating the
reasonableness of the request during the early stages of discovery.
5. DISCOVERY REQUESTS.
a. Contents. All discovery requests must specify time limits for responding.
5 C.F.R.
§ 1201.73(a). A notice of deposition must specify the date, time, and place of the
deposition. The parties may agree to reschedule or postpone discovery during the
voluntary stage. Deposition witnesses must give their testimony at the designated
time and place stated in the request for deposition or in the subpoena unless the
parties agree on another time or place. 5 C.F.R. § 1201.73(d)(2).
b. Service. A party must serve a copy of each discovery request on the representative
of the other party or on the party if there is no representative. 5 C.F.R.
§ 1201.73(a).
6. PREMATURE FILINGS.
The AJ must not accept for filing any requests for discovery, responses to discovery
requests, and/or objections unless such information is submitted in support of a motion to
compel or opposition to a motion to compel. Instructions to the parties regarding this
prohibition are included in the acknowledgment order. Any material gained in discovery
that a party wishes to enter into the record must be submitted as an exhibit or in
connection with a pleading.
7. TIME LIMITS FOR DISCOVERY.
See generally 5 C.F.R. § 1201.73(d)
.
a. Initial Discovery Requests. Discovery requests must be initiated within 30 days after
the date of issuance of the acknowledgment order (in compliance cases, within 15
days of the filing of the response to the petition for enforcement).
b. Responses to Discovery Requests. A party or nonparty must file a response to a
discovery request promptly, but not later than 20 days (15 in compliance cases)
after the date of service of the discovery request.
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c. Supplemental Requests. If the requesting party finds it necessary to make additional
requests based on the responses it receives, these supplemental requests must be
served within 10 days after the date of service of the prior responses unless
otherwise directed by the AJ.
d. Responses to Supplemental Requests. The time limit for responding to a
supplemental request for discovery is also 20 days.
e. Completion of Discovery. Discovery should be completed within the time designated
by the AJ. 5 C.F.R. § 1201.73(d)(4). If no such period is designated, discovery
must be completed no later than the prehearing or close of record conference. Id.
The AJ must ensure that due process requirements are met.
f. Computation of Time. In computing the number of days allowed for complying with
any deadline, 5 days are added to a party’s deadline for responding to a document
served by mail unless a different deadline is specified by the AJ. 5 C.F.R. § 1201.23.
8. MOTIONS TO COMPEL.
When a party fails or refuses to respond in full to a discovery request (e.g., by objections,
lapse of time, repeated delay, nonresponsive answers, etc.), the requesting party may ask
for the Board’s assistance by filing a motion to compel. Parties must file motions to compel
within 10 days of the date of service of objections or the expiration of the time limit for
response, when no response has been received. 5 C.F.R. § 1201.73(d)(3)
.
a. Contents.
(1) The motion must be accompanied by a copy of the original discovery request and
a copy of the response or, if no response was received, an affidavit or sworn
statement to that effect. See 5 C.F.R. § 1201.73(c)(1)(i), (ii)
.
(2) The motion must explain the relevance and materiality of the information sought.
5 C.F.R. § 1201.73(c)(1)(i)
.
b. Opposition. The recipient of a discovery request may respond to the motion to
compel either by complying or by explaining the failure to comply. The recipient or a
party has 10 days from the date of service to respond or object to a motion to
compel.
5 C.F.R. § 1201.73(d)(3). Processing problems could arise if the AJ waited
for this 10-day period to elapse (plus 5 days to allow for mailing) before ruling on
the motion. The AJ has a choice of two courses of action to prevent delays, as
explained below.
c. Preventing Delay. Upon receipt of a motion to compel, the AJ should promptly
initiate a conference call with the parties to determine the nature of opposition and
to attempt to resolve it before ruling on the motion. The AJ should be prepared to
grant requests for more time to respond from the opposing party due to the short
time frames involved. When the motion is deniable on its face, the AJ should rule on
the motion without waiting for a response.
d. Formal Action by the AJ. After a motion to compel is filed, the AJ must examine it
and the underlying discovery requests to ensure that they meet all regulatory time
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limits and requirements. An AJ has broad discretion in rejecting motions to compel
due to untimely discovery requests. See Esparza v. Department of the Air Force
,
22 M.S.P.R. 186 (1984). Motions to compel must be ruled on promptly to enable the
parties ample time to complete discovery.
9. ADMINISTRATIVE JUDGE’S DISCOVERY AUTHORITY.
a. An AJ has authority to order parties, including agency employees, to respond to
discovery motions. See 5 C.F.R. § 1201.41(b)(4)
. AJs may have delegated
authority to do the following: (1) Issue subpoenas for the appearance of witnesses
and production of documentary or other evidence; (2) order the taking of
depositions; and (3) order responses to written interrogatories and requests
for admissions.
b. An AJ’s broad authorities concerning discovery matters are illustrated by the Board’s
decision in Montgomery v. Department of the Army
, 80 M.S.P.R. 435, 438-42
(1998). In that case, the Board: made clear that an AJ’s discovery-related rulings
would be reviewed under an abuse of discretion standard; supported the AJ’s
decision to require the agency to produce documents for his in camera inspection,
even when a claim of privilege might allow the agency to withhold the documents
from the appellant; held that records need not be subject to mandatory disclosure,
as under the Privacy Act, before an AJ may order discovery as to them; affirmed that
the parties may not place conditions on documents released by a discovery order;
ruled that even if an AJ had erred in disseminating discovery information, that error
would not allow a party to refuse to comply with any remaining portion of the order;
and upheld AJs’ authority to impose sanctions for a party’s failure to comply with
discovery orders.
10. SUSPENDING CASES FOR DISCOVERY.
An AJ may suspend a case two times for up to 30 days each. 5 C.F.R. § 1201.28. Among
the reasons commonly given for such a suspension is to allow the parties to complete
discovery. See chapter 3, section 12 for details.
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CHAPTER 9 - PREHEARING AND STATUS CONFERENCES
1. PURPOSES OF CONFERENCES.
The purposes of the prehearing and status conferences are to do the following:
a. Explain Board procedures to the parties;
b. Facilitate discovery;
c. Identify, narrow, and define the issues;
d. Obtain stipulations;
e. Discuss the possibility of settlement;
f. Rule on witnesses; and
g. Rule on exhibits.
2. ISSUANCE OF STANDARD ORDERS – “BURG ESS ” NOTICE.
a. In hearing cases, the AJ must send out the appropriate standardized Order and
Notice of Hearing and Prehearing Conference (HEARREG or HEAROPM).
b. In cases decided without a hearing, the AJ must send out the appropriate
standardized Order Closing the Record (CLOSEREG or CLOSEOPM).
c. HotDocs includes many inserts and stand-alone documents that are intended to
inform the parties of the requirements for proof of jurisdiction and/or the merits on
the type of appeal filed and the affirmative defenses associated with it. Such notices
satisfy the parties’ right to a fair process and are known as Burgess orders because
of the decision in Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir.
1985), which requires such notice before an adverse ruling may be made. To the
extent necessary or appropriate, AJs may and should modify these standard orders
to more precisely fit the circumstances of any individual appeal, but should not
delete information from standard documents that is designed to meet Burgess notice
requirements. In many situations where it appears that an appellant has not raised
an issue, subsequent events may indicate that he believed that he had done so. If
the standard document was sent out, then the issue can be addressed without
further delay later in the appeal and the Board, on review, will see that the record
shows that the appellant was fully informed of the burdens and standards of proof of
the claim, thereby perhaps avoiding a remand.
d. Video conference hearing. If a hearing is to be held by video conference, the agency
may be directed to locate and make available a video conference site. For guidance
regarding video conference hearings, see chapters 4 and 10 of this Handbook.
e. Bench decision. An AJ must notify the parties of the possibility of and the
procedures for requesting a bench decision in the hearing order. See chapter 4,
section 3, and chapter 12, section 5a of this Handbook.
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3. NUMBER OF CONFERENCES REQUIRED.
At least one prehearing conference or one status conference must be held in every case.
Exceptions to this policy are the following:
a. Cases that are obviously untimely or not within the Board’s jurisdiction;
b. Cases in which the appellants have not provided their telephone numbers and the
numbers cannot readily be obtained; and
c. Certain overseas cases -- such as Filipino retirement cases -- when an attempt to
hold such conferences would be impractical.
d. Addendum cases which, in the discretion of the AJ, do not require a conference.
4. METHOD OF CONFERENCES.
Prehearing or status conferences may be held by telephone, video conference, or in person.
The agency, with the possible exception of OPM in retirement cases, may be required to
make the arrangements for a telephonic or video conference.
5. RECORD OF CONFERENCES.
The AJ must prepare, or have a party prepare, a prehearing or status conference summary
when any rulings were made or agreements were reached on issues (including affirmative
defenses), witnesses, exhibits, stipulations, etc. In the alternative, the AJ may memorialize
the prehearing conference by using the telephone system to record the conversation, from
which a CD can be made and placed into the electronic record as an audio file. Otherwise,
an audio tape or CD may be made of the conference and included in the record or, before
the hearing begins, a summary of the prehearing or status conference may be read into the
hearing record. However accomplished, the goal is to assure that all issues raised and all
rulings made are preserved for the record. ’Prehearing conferences may be recorded either
by audio taping or video taping only after the AJ informs all parties that the conference is
being recorded, and that all parties’ consent to electronic recording may be required under
some state privacy statutes. See, e.g., Cal. Pen. C. § 632. The former is a matter of policy
that the Board may properly determine, but whether the Board is subject to the various
state laws concerning consent to electronic recording is less clear. The matter has not been
addressed in a published Board decision. Until it is, or until more definitive guidance is
provided, the AJ should direct that a party (who raises a claim that the conference may not
be recorded) fully brief the issue, including whether the Board is subject to any
state-imposed restrictions.
The Board, of course, must rely on the record when a PFR is filed. In the absence of a
complete summary of all conference rulings, etc., it may find no support for a statement or
action of the AJ that is reflected in the ID or the proceedings leading to it. Thus, inadequate
documentation of prehearing rulings may lead to unnecessary reversals or remands. See,
e.g., Conant v. Office of Personnel Management
, 79 M.S.P.R. 148 (1998) (AJ’s statement
that the appellant withdrew her hearing request found inadequate proof of waiver where
circumstances of the withdrawal were not fully described and record was not documented to
show that she had been informed of her options). For this reason, and to help avoid the
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possibility that memories will differ between the parties and the AJ, even when there were
no rulings made or agreements reached, it is preferable to issue a summary so stating.
The conference record must identify all issues that the AJ has accepted for adjudication, and
the parties must be informed that they will be limited to those issues cited (unless a party
can establish that the issue belatedly being raised could not have been previously known
despite due diligence). When the AJ rejects an issue, any objection to the AJ’s ruling should
be addressed in the conference record. If there are no material differences in the parties’
statements of facts and issues, the conference record may incorporate the parties’
statements by reference.
Except when the prehearing conference is recorded or read into the hearing record, the AJ
should advise the parties that, if they believe the conference record inaccurately
summarizes the prehearing conference, they should call the AJ to arrange a conference call
to resolve the alleged inaccuracies before the hearing or submit exceptions to the
conference record in writing. When a written memorandum summarizing the conference is
prepared, the AJ (or the party given the task of preparing the summary) must serve the
memorandum on the parties and provide a specific number of days, normally at least 5, for
filing corrections or objections to the memorandum. See
Miles v. Department of Veterans
Affairs, 84 M.S.P.R. 418 (1999) (citing this Handbook for its holding); but see chapter 1 of
this Handbook, cautioning that “adjudicatory error is not established solely by failure to
comply with a provision of this handbook.” If a party is designated to prepare the
summary, the AJ must annotate the party’s memorandum or otherwise show his or her
agreement with its accuracy before it is placed in the record. Id.
If no rulings are made or agreements reached, a summary is not required. Memorializing
that fact, however, with notice to the parties, will help prevent a later claim that a matter
was ruled on at the otherwise undocumented conference. Rulings such as the changed date
of a status conference do not require documentation in a separate order; rather, the change
in date should be identified in the summary of the conference when it is held.
6. TREATMENT OF AFFIRMATIVE DEFENSES DURING PREHEARING AND
STATUS CONFERENCES.
An AJ must observe the following procedures whenever an appellant raises an affirmative
defense in a case in which such a defense may be advanced. This excludes IRA, USERRA,
and VEOA appeals. See Marren v. Department of Justice
, 51 M.S.P.R. 632, 638-39 (1991),
aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other grounds by Robinson v.
U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994) (IRA); Metzenbaum v. Department of
Justice, 89 M.S.P.R. 285, 291-92, ¶ 15 (2001) (USERRA); Ruffin v. Department of the
Treasury, 89 M.S.P.R. 396, 401, ¶ 12 (2001) (VEOA). The Board lacks authority to hear
affirmative defenses under both USERRA and VEOA. See Davis v. Department of Defense,
105 M.S.P.R. 604 (2007).
a. Enforcement of the Prehearing Order. The AJ will enforce the prehearing order,
which directs the parties to submit separate statements of facts and issues.
If an appellant fails to submit a statement of facts and issues, the AJ must require
the appellant to state all defenses, including affirmative defenses, during the
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prehearing conference. The AJ must inform the appellant that he or she is limited to
those issues raised, except for good cause shown.
Those defenses and the AJ’s admonition must then be incorporated in the prehearing
conference record.
b. Addition or Waiver of Affirmative Defenses. The AJ will review the appeal for any
affirmative defense that appears to be alleged but is not included in an appellant’s
statement of facts and issues, and bring the omission to the appellant’s attention.
The AJ must give the appellant the opportunity to add the omitted defense to the
statement of facts and issues, or obtain an explicit waiver of the omitted defense.
The result must be memorialized in the prehearing conference record, as the Board
will not assume that the AJ’s failure to address it in the ID means that the appellant
waived or abandoned the issue. Further, if a pleading filed by or on behalf of the
appellant makes a claim that, if fully developed, may constitute an affirmative
defense, the AJ must provide the appellant an opportunity to affirm or disavow that
such an issue is part of the appeal. Before determining whether the appellant
intended to raise such a claim, the AJ must assure that the record shows that the
appellant was informed of the showing necessary to the presentation and proof of
such an issue. As the Board stated in Wynn v. U.S. Postal Service, 115 M.S.P.R.
146 (2010):
We now make clear that when an appellant raises an affirmative defense in
an appeal either by checking the appropriate box in an appeal form,
identifying an affirmative defense by name such as “race discrimination,”
“harmful procedural error,” etc., or by alleging facts that reasonably raise
such an affirmative defense, the AJ must address the affirmative defense(s)
in any close of record order or prehearing conference summary and order. If
an appellant expresses the intention to withdraw such an affirmative defense,
in the close of record order or prehearing conference order the AJ must, at a
minimum, identify the affirmative defense, explain that the Board will no
longer consider it when deciding the appeal, and give an appellant an
opportunity to object to withdrawal of the affirmative defense. The record in
this appeal simply does not establish that the appellant abandoned or
withdrew the affirmative defenses he had raised in his appeal. As explained
below, in the absence of evidence establishing the appellant had withdrawn or
abandoned his affirmative defenses, it was incumbent on the AJ to advise the
appellant of applicable burdens of proving a particular affirmative defense, as
well as the kind of evidence the appellant is required to produce to meet
his burden.
An appellant is entitled to a decision on the merits of his discrimination claim under
the procedures set forth at 5 U.S.C. § 7701
; this is true regardless of whether the
appellant has made a nonfrivolous claim or established a prima facie case of
discrimination. See
Currier v. U.S. Postal Service, 79 M.S.P.R. 177, 180-82 (1998);
Bennett v. National Gallery of Art, 79 M.S.P.R. 285, 289-95 (1998) (then-Member
Marshall dissenting). The allegation must be one of “prohibited” discrimination.
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Thus, where an appellant’s alleged disorder was statutorily excluded from the
definition of disability, the AJ’s striking of the appellant’s claim was not harmful error
because the appellant failed to allege prohibited discrimination.
Browder v.
Department of the Navy, 81 M.S.P.R. 71, 76 (1999), aff’d, 250 F.3d 763 (Fed. Cir.
2000) (Table). The appellant is entitled to a hearing at which he or she may submit
evidence pertaining to the claim of prohibited discrimination. See
Owens v.
Department of the Army, 82 M.S.P.R. 279, ¶ 7 (1999). However, the AJ retains the
authority to rule on the admissibility of evidence and its relevance. Brown v. U.S.
Postal Service, 81 M.S.P.R 16, 21, n.4 (1999).
The appellant also has the right to be heard on the affirmative defenses even when
the agency cancelled the action after the appellant filed the appeal, unless the Board
could not grant any additional relief. This requires the AJ to notify the appellant that
he or she may claim compensatory or consequential damages where no such claim
has yet been raised, and that if the appellant does so, the AJ will hear and rule on
the affirmative defense so that the damages claim can also be decided, if
appropriate. See, e.g., Roach v. Department of the Army
, 82 M.S.P.R. 464 (1999)
(consequential damages); Hodge v. Department of Veterans Affairs, 72 M.S.P.R. 470
(1996) (compensatory damages). To the contrary, however, the Board has held that
an outstanding claim for attorney fees does not prevent an appeal from being
dismissed as moot. See, e.g.,
Uhlig v. Department of Justice, 83 M.S.P.R. 29
(1999). Moreover, in Sacco v. Department of Justice, 90 M.S.P.R. 37 (2001), the
Board followed the rule of Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598 (2001), which precludes a
fee award under the catalyst theory based on the cancellation of an appealed matter.
Thus, in these circumstances, a request for fees will not prevent an appeal from
being dismissed as moot.
Whistleblower claims are analyzed differently. Although an outstanding claim for
attorney fees does not preclude dismissing an appeal brought under chapter 75 as
moot as in Currier, the Board has held that a request for attorney fees in an IRA
appeal is a claim for corrective action. Vick v. Department of Transportation,
118 M.S.P.R. 68, 69-70, ¶ 5 (2012); Santos v. Department of Energy, 99 M.S.P.R.
475, ¶ 7 (2005). In OAA appeals where whistleblower retaliation is raised as an
affirmative defense, the appellant can proceed with a claim of retaliation for
whistleblowing activity when he can articulate some possible, effective relief that can
be granted by the Board under 5 U.S.C. § 1221(b)
, which, in relevant part, gives an
employee the right to seek corrective action from the Board when the employee can
appeal directly to the Board under any law, rule, or regulation. Lamberson v.
Department of Veterans Affairs, 80 M.S.P.R. 648, 654-55, ¶ 14 (1999).
c. Limitation of Issues The parties will be bound to the issues defined in the AJ’s
conference record, except in cases of good cause shown.
This means, for example, that when an appellant waits until the hearing to raise
discrimination as a defense, the AJ must require the appellant to explain the delay,
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and if justified, must afford the agency or intervenors, if any, an opportunity to show
that considering that issue would unduly prejudice its rights.
d. Failure to Introduce Evidence. Any failure to introduce evidence in support of an
affirmative defense will be treated like any other matter before the trier of fact. That
is, if the appellant fails to introduce evidence on an affirmative defense, then he or
she would fail to meet the burden of proof. See
Brown v. Department of the
Air Force, 67 M.S.P.R. 500, 508 (1995); Thomas v. Office of Personnel Management,
47 M.S.P.R. 369 (1991).
7. RETIREMENT CASES.
In retirement cases, the AJ must inform appellants of their burden of proof and of the kind
of evidence they need to provide the Board for the adjudication of their appeals. The Board
has found that because the appellant has the burden of proof in a retirement appeal, both
OPM and the AJ have a special burden to assure that the appellant is not disadvantaged,
especially when pro se. This extends to requiring that when the AJ knows that the
appellant’s proof is insufficient, the AJ must so inform the appellant and assure that he or
she is made aware of the type of evidence that must be submitted to support the claim.
See, e.g., Goodnight v. Office of Personnel Management
, 49 M.S.P.R. 184, 188 (1991) (AJ’s
burden); Lubag v. Office of Personnel Management, 88 M.S.P.R. 484, 488, ¶ 10 (2001)
(finding that OPM had a “special duty” to the appellant to determine why, under the
circumstances presented, the annuitant had elected a specific option). When such
appellants are unrepresented, or their representatives are not attorneys, the AJ must assure
that this information is presented in a form that is appropriate to the listener’s level of
knowledge and expertise. If the appellant is, or appears to be, incompetent, the AJ must
follow the requirements set out in
French v. Office of Personnel Management, 37 M.S.P.R.
496, 499 (1988). See chapter 2, section 8, of this Handbook for further information. See
also
Dixon v. U.S. Postal Service, 89 M.S.P.R. 148 (2001), concerning the application of
French-like procedures in removal appeals in which the appellant appears to be
incompetent. The decision sets out the specific authorities of the AJ in such a situation.
While it is rare that an agency is required to file a disability retirement on the appellant’s
behalf, see 5 C.F.R. §§ 831.1205, 844.202, when such circumstances are present, the AJ
must assure that the regulatory requirements and those in the Board’s case law are met.
The right to such procedures does not extend to adverse action appeals, Marbrey v.
Department of Justice, 45 M.S.P.R. 72 (1990); nor is there a right to appointment of
counsel in IRA appeals. See Taylor v. Merit Systems Protection Board, 527 F. App’x 970
(Fed. Cir. 2013).
However, certain affirmative defenses may be raised in some retirement appeals. In this
regard, the Board has held that when OPM’s decision involved an exercise of discretion,
defenses such as discrimination could be raised, but that if OPM was bound by the law to
make a specific determination, they could not. See
Wrighten v. Office of Personnel
Management, 89 M.S.P.R. 163, 167, ¶ 11 (2001). Thus, the rules discussed above
concerning the AJ’s authority and obligations as to affirmative defenses apply to appropriate
retirement appeals, as well.
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Because of workload or related issues, OPM at times has been slow in providing records
needed for proper adjudication. Because a default judgment cannot be issued in such cases
since benefits that are not properly earned cannot be granted, the AJ must be tenacious in
requesting the agency file and other related information needed for adjudication. In an
effort to accommodate OPM, however, AJs may hold conferences with the appellant alone,
after notice to OPM that such a conference will occur with or without its participation, and
will not require OPM to arrange such conferences. Especially difficult problems with
responsiveness on the part of OPM should be reported to ORO, which will attempt to resolve
the issue through discussions with management in OPM’s retirement division. After OPM’s
repeated failure to respond, in appropriate circumstances it may be proper to base a
decision on the record, which will be entirely, or almost entirely, made up of the appellant’s
evidence. In such a case, OPM must be warned that a decision on the record will be made.
If the appellant contends that evidence in OPM’s possession to which he has no access, will
meet his burden of proof, however, a decision without that evidence should not be made.
8. MOTIONS FOR ATTORNEY FEES, COMPENSATORY, LIQUIDATED AND/OR
CONSEQUENTIAL DAMAGES, AND PETITIONS FOR ENFORCEMENT.
The provisions of this chapter also apply to cases involving motions for attorney fees and
compensatory damages, and to petitions for enforcement. See chapter 13 for further
guidance on processing such cases.
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CHAPTER 10 - THE HEARING AND ITS RECORD
1. ROLE AND CONDUCT OF ADMINISTRATIVE JUDGE.
a. Responsibility of Administrative Judge. The AJ is responsible for conducting a fair
and impartial hearing and taking all necessary action to ensure adequate
development of the record and to avoid delay. An AJ’s specific powers and authority
are set forth at
5 C.F.R. § 1201.41.
b. Demeanor of Administrative Judge. Hearings are to be conducted in a dignified and
orderly manner. The Federal Circuit will require a new hearing, held by a different
AJ, only when the original AJ’s conduct violated a party’s right to due process, and a
due process violation will be found only when the standard set by the Supreme Court
has been violated. See Bieber v. Department of the Army, 287 F.3d 1358 (Fed. Cir.
2002). That standard, stated in Liteky v. United States, 510 U.S. 540, 555 (1994),
is that “opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Needless to
say, however, the Board expects and requires its AJs to exhibit much more
exemplary judicial conduct than is necessary simply to defeat a motion for recusal or
a finding of bias. Rather, the behavior of the AJ must be characterized by fairness,
impartiality, courtesy, decisiveness, and patience. That the Liteky standard is not
met does not prevent the Board from reassigning a case when the AJ conducted
himself or herself inappropriately or was seen to favor one party or the other so that
the appearance of partiality would color the proceedings. See, e.g.,
Gallagher v.
Department of the Air Force, 84 M.S.P.R. 441, 443, ¶ 7 (1999).
c. Special Circumstances.
(1) Assistance for Disabled; Discrimination Complaints. If the appellant, a witness,
or a representative is disabled, the AJ must follow 5 C.F.R. part 1207,
Enforcement of Nondiscrimination on the Basis of Handicap in Programs or
Activities Conducted by the Merit Systems Protection Board, requiring that
reasonable accommodations be made to ensure that disabled individuals have
meaningful access to the Board’s programs and activities. Under
section 1207.170(b):
(a) When a party believes he or she has been subjected to discrimination on the
basis of disability in the AJ’s adjudication of the case, the party may raise the
allegation in a pleading filed with the AJ and served on all other parties in
accordance with 5 C.F.R. § 1201.26(b)(2)
.
(b) An allegation of discrimination in the adjudication of a Board case must be
raised within 10 days of the alleged act of discrimination or within 10 days
from the date the complainant should reasonably have known of the alleged
discrimination. If the complainant does not submit a complaint within that
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time period, it will be dismissed as untimely filed unless a good reason for the
delay is shown.
(c) The AJ to whom the case is assigned shall decide the merits of any timely
allegation that is raised at this stage of adjudication, and shall make findings
and conclusions regarding the allegation either in an interim order or in the
initial decision, recommended decision, or recommendation. Any request for
reconsideration of the AJ’s decision on the disability discrimination claim must
be filed under the requirements of 5 C.F.R. §§ 1201.114 and 1201.115
.
This procedure keeps the discrimination complaint and the appeal proceeding
on the same track, so that they will be presented to the Board for decision at
the same time. Thus, while no standards have been set for either the
complaint or the decision on it, the prerequisites for the filing of a formal
complaint, such as counseling, are not required. Nor would the decision seem
to require more formality than would be associated with a proper ruling on a
motion - a holding supported by the AJ’s reasoning for it, sufficient for the
Board to review on PFR. As required by the regulation, too, if the complaint
is not timely submitted, it should be dismissed on that basis unless the
appellant shows good cause for the delay.
(2) Foreign Languages. The Board’s policy on requests for language interpreters
when parties or witnesses to a proceeding do not speak English has not been set
forth in a finalized document, but the draft Limited English Proficiency
accessibility plan promulgated by the EEO Office, pursuant to Department of
Justice policy guidance, discusses such matters. If issues arise that cannot be
handled efficiently in accordance with this paragraph, the RD or CAJ should
contact ORO or the Board’s EEO Office directly for assistance. The AJ may direct
the parties to select a qualified interpreter acceptable to both, or the AJ may
select an interpreter from a list of qualified interpreters compiled by the parties
or maintained by the U.S. District Court pursuant to
28 U.S.C. § 1827(c)(1).
However, the AJ must ensure that the record includes sufficient evidence to
establish that the interpreter is qualified by knowledge, skill, experience, training
or education, and should administer an oath or affirmation to make a
true translation.
(3) Appellant’s Right to Abandon or Cancel Hearing. An appellant may withdraw his
or her request for a hearing at any time. If this occurs, the agency has no right
to insist on a hearing. See, e.g., Callahan v. Department of the Navy, 748 F.2d
1556, 1559 (Fed. Cir. 1984);
Kirkpatrick v. Department of the Interior,
49 M.S.P.R. 316, 318 (1991); Dodd v. Department of the Interior, 48 M.S.P.R.
582, 584 (1991). The parties, however, must be given the opportunity to
supplement the record with evidence and argument before the ID is issued, and
the appellant should be so informed before the withdrawal is effected. See
Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347 (Fed. Cir.
2005), holding that the Board has a longstanding policy to allow parties an
opportunity to submit rebuttal evidence, and that because it did not allow for
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rebuttal evidence in this case, and did not explain its change in policy, it acted
arbitrarily when earlier in the appeal the agency had presented “only superficial
arguments.” The court held in that circumstance that the appellant was not
required to have submitted her specific and detailed rebuttal evidence prior to the
agency’s submission of its more specific evidence. As noted earlier, despite
5 C.F.R. § 1201.41(b)(5), an AJ also does not have a right to order a hearing.
(4) Agency Request for Hearing. The agency has no statutory right to a hearing, and
the Board’s regulations do not provide for consideration of an agency’s request
for a hearing. See
Thomas v. Department of Veterans Affairs, 51 M.S.P.R. 218,
220 (1991); 5 C.F.R. § 1201.24(d).
(5) Intervenors. Intervenors, who may participate only as to issues affecting them,
do not have an independent right to a hearing. 5 C.F.R. § 1201.34(d)(1). They
retain the other rights of a party, however.
2. PRELIMINARY CONFERENCE.
The AJ may wish to convene a brief preliminary conference immediately preceding the
hearing, attended only by the parties and their representatives, to ensure the orderly and
expeditious progress of the hearing. When the hearing begins, the AJ must summarize
briefly what occurred at the preliminary conference, and ask both parties to state any
objections concerning the accuracy of the summary. The summary made of such
prehearing rulings must comport with the requirements for rulings made at earlier
telephonic (or other) conferences, to assure a complete documented record. See chapter 9,
section 5 of this Handbook.
3. PUBLIC HEARINGS.
a. In general. The AJ has wide discretion to conduct the hearing as appropriate. The
public’s right to know must be balanced against the appellant’s right to privacy. The
public and the media may be excluded from the hearing when necessary to protect
the appellant’s privacy or for other reasons, e.g., disclosure of trade secrets or
national security information. The record of the hearing can be obtained by filing a
FOIA request, however. See 5 C.F.R. § 1201.53
and chapter 17, section 1c of
this Handbook.
b. Sensitive Security Information (SSI). SSI is sensitive but unclassified information
controlled by the Department of Homeland Security (DHS), obtained or developed in
the conduct of security activities, including research and development, the disclosure
of which the Transportation Security Administration (TSA) has determined would be
detrimental to the security of transportation. Contrary to the general rule, absent
good cause shown, all hearings in which SSI may be disclosed must be closed to the
public. Only “covered persons” under 49 C.F.R. § 1520.7 may have access. Federal
employees, including employees of the OSC and MSPB, are covered persons.
49 C.F.R. § 1520.11(b)(1). Current and former TSA employees and their designated
representatives are covered persons under 49 C.F.R. §§ 1520.7(k)-(j) and
1520.11(a)(5). In addition, covered persons include court reporters who are under
contract to a covered person and who sign a DHS Non-Disclosure Agreement
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provided by the agency representative. Paralegals and other support staff assisting
appellant’s representative are not covered persons and may not be given access to
SSI. At any MSPB hearing held by video conference or telephone, the AJ shall
require each participant to certify that he or she is in a location providing privacy,
i.e., away from the public when there is no risk of being overheard.
E-filing may not be used to file a pleading that contains SSI (49 C.F.R. parts 15 &
1520) or classified information (32 C.F.R. part 2001). 5 C.F.R. § 1201.14(c)(4)-(5).
4. USE OF TWO-WAY COMMUNICATIONS DEVICES; BROADCAST OF HEARINGS.
As discussed below, the Board must be concerned about the many forms of instant and
broadcast communications that are readily available. In addition to the fact that it is only
the Board’s record of a hearing that is the official record, broadcasting and some instant
communications may be disruptive of the proceedings. Further, the use of instant
communication devices raises the possibility that the testimony of witnesses as it is being
given will be transmitted to witnesses who have not yet testified, thereby unfairly
advantaging one party over the other.
a. Two-Way Communications Devices.
(1) Absent the AJ’s express approval, no two-way communications devices may be
operated and/or powered on in the hearing room or in space adjacent or
accessible to it. All cell phones, text devices, and all other two-way
communications devices shall be powered off in those areas. Further, no
cameras, recording devices, and/or transmitting devices may be operated,
operational, and/or powered on. Streaming live video of the hearing as it
proceeds and blogging, tweeting, etc. live from the hearing are prohibited. The
parties are informed of this prohibition in the standard acknowledgment order.
(2) Because 5 C.F.R. § 1201.53(a) provides that a verbatim record made under the
supervision of the AJ will be the sole official record of the proceeding, absent
extraordinary circumstances, no tape, digital, or other recording should be
allowed at the hearing. See section 18 of this chapter.
b. Broadcast of Hearings.
(1) Relevant Factors for Consideration. The Board is under no legal obligation to
grant permission to broadcast its proceedings. The public’s right of access and
the parties’ due process rights are satisfied by an open hearing and do not
include a right to broadcast coverage. In deciding whether to permit coverage,
an AJ must weigh any additional benefit to the public against any adverse impact
that such coverage might have on the conduct of the proceeding, or under the
totality of circumstances in a particular case, on the due process rights of the
parties. Cases involving media attention should be the subject of a sensitive case
report. See chapter 3, section 6. In no instance should the media, including
television, radio, internet, or print, be permitted to record a hearing or any
portion of it for broadcast or other distribution before the hearing has ended.
Factors to consider include the following:
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- Intimidation of timid or reluctant witnesses;
- “Grandstanding” or posturing for the media by participants or others in or near the
hearing room, with resulting delays in the proceedings;
- Heightened risk of audience disruption;
- The distracting nature of media representatives and equipment; and
- The administrative problems involved in making arrangements for and
controlling coverage.
Harm to some potential privacy interests must also be considered in deciding
whether to permit broadcast coverage. A party who objects to broadcast coverage
should be asked to explain why the electronic media would constitute a greater
threat to privacy than would ordinary press coverage.
c. Guidelines and Conditions for Coverage. Coverage of a Board hearing by the media
is subject to the authority of the AJ to control the conduct of the proceedings, to
ensure decorum and prevent distractions, and to ensure the fair administration of
justice. AJs must make sure that media coverage will be unobtrusive, will not
distract participants, and will not otherwise interfere with the administration of the
hearing. If the hearing takes place in borrowed facilities, the host agency should be
informed of the prospective coverage and its own rules regarding the media must
be followed.
(1) Conferences of Counsel. Broadcasting or recording of bench conferences
is not permitted.
(2) Admissibility. None of the film, videotape, still photographs, or audio
reproductions developed during or by broadcast coverage of a Board proceeding
constitutes the official record in the case in which it is taken. Generally, it
should not be admitted as evidence in that or any subsequent Board proceeding
unless it constitutes relevant, material evidence that is otherwise unavailable.
(3) Instructions. If media coverage is permitted, the AJ should have copies of an
instruction sheet that explains the terms and conditions of the media’s presence
at the hearing. See Appendix A for a model instruction sheet.
5. SIZE OF AND ACCESS TO THE HEARING ROOM.
If the AJ is aware of substantial public interest in a particular case, he or she should make
arrangements for a hearing room that will accommodate a reasonable number of persons.
6. TELEPHONIC OR VIDEO CONFERENCE HEARINGS.
a. Hearing method. Years ago, the Board established a rule was that an appellant had
a fundamental right to an in-person hearing on the merits if there was a genuine
dispute as to any material fact, and when the appellant had such a right, the AJ had
no authority to order a telephonic hearing over the appellant’s objection. See, e.g.,
McGrath v. Department of Defense, 64 M.S.P.R. 112, 115-17 (1994); Evono v.
Department of Justice, 69 M.S.P.R. 541, 545 (1996). The same rule was later
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applied to hearings held by video conference. Subsequently, relying in part on
Rule 43(a) of the Federal Rules of Civil Procedure, the Board held that when an
appellant in an appeal requiring the AJ to make credibility determinations requested
an in-person hearing, that request could not be denied in the absence of a showing
of good cause. Crickard v. Department of Veterans Affairs
, 92 M.S.P.R. 625 (2002).
However, Crickard and similar cases were overruled in Koehler v. Department of the
Air Force, 99 M.S.P.R. 82 (2005). There, the Board held that while
5 U.S.C.
§ 7701(a)(1) gives appellants before the Board “the right ... to a hearing for which a
transcript will be kept,” nonetheless “there is no statutory mandate for an unlimited
entitlement to an in-person hearing.” Id., ¶ 10. The Board stated as follows:
We therefore hold today that, in conjunction with the broad discretion afforded
them to control proceedings at which they officiate, 5 C.F.R. § 1201.41(b)
, AJs
may hold video conference hearings in any case, regardless of whether the
appellant objects. [Footnote omitted.] To the extent that Crickard and other
such cases hold that, in an appeal where the AJ is required to make credibility
determinations, he may not convene a video conference hearing over the
appellant’s objection in the absence of a showing of good cause, those cases are
hereby overruled. [Footnote omitted.]
Id., ¶ 13.
In light of Koehler, video hearings are allowed in all circumstances. Of course, it
remains in the discretion of the AJ, subject to the approval of the CAJ, to determine
whether the circumstances surrounding any given case are such that holding an
in-person hearing would be preferable.
As to telephone hearings, there is no new law since Koehler, which stated that “we
need not, nor do we, extend this holding to telephone hearings.” Id., n.3.
Accordingly, the rule set by McGrath and Evono remains in effect, so only when
material facts are not in dispute and the sole purpose of the hearing is to allow the
parties to make oral arguments, do telephone hearings satisfy an appellant’s
entitlement. The appeals in which such a presentation can be held in lieu of a full
hearing tend to be retirement appeals, which are not brought before the Board under
5 U.S.C. § 7701
. See Carew v. Office of Personnel Management, 878 F.2d 366,
367-68 (Fed. Cir. 1989). Indeed, even when there is no dispute of material facts
and it appears that the appellant fails to meet the legal requirements for the benefit
sought, the right to a hearing remains, although a telephone hearing may be all that
is required. See, e.g.,
Gowan-Clark v. Office of Personnel Management, 84 M.S.P.R.
116, ¶ 5 (1999).
In Robertson v. Department of Transportation, 113 M.S.P.R. 16 (2009), the Board
held that “[w]here an administrative judge improperly holds a telephonic hearing,
the Board will undertake a careful review of the record to determine whether the
error had a potential adverse effect on the appellant’s substantive rights.” Since the
appellant testified contrary to the testimony of the witness heard by phone, but the
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AJ relied on the witnesses’ testimony, which she found credible, the Board found that
the error in accepting testimony over the telephone regarding disputed factual
matters did have a potential adverse effect on the appellant’s substantive rights.
Thus, any testimony where credibility may be at stake continues to require an
in-person presentation. That is true even when, as in Robertson, most witnesses
were heard live, and just two were telephonic.
b.
Recording. If a telephone hearing is appropriate, in most instances the AJ should
record the hearing using the phone’s Record-a-Call feature, which may eliminate the
need for a reporter. ShoreTel has two features that allow you to record calls,
1) ShoreTel SA100 Web Conference, which is the preferred method, and 2) ShoreTel
Communicator – Record. The first method allows for a recording as long as 8 hours
when used in a “Reservation-less” conference, while a “Scheduled” conference allows
you to set a specific date, time and duration for the conference. The Communicator
method is to be used to record only those conferences that will last less than
30 minutes, not hearings. Training and assistance in these methods is available
through IRM.
As noted in section 18.b of this chapter, when the hearing is recorded by telephone,
then transferred to a CD, to create an index, it will be necessary to keep track of the
amount of time elapsed between witnesses so that the index can indicate the
approximate point, by time since the start of the hearing, at which each witness’s
testimony begins. This task may be done by the AJ or by the support staff who
transfers the hearing to the CD and certifies the recording as audible and accurate.
Video conference hearings, too, are recorded on CD or other recording medium by a
court reporter, who should usually be present with the AJ. The AJ also may record
the hearing without the assistance of a court reporter when the hearing will be short
and the AJ will be able to concentrate on the proceedings even without a reporter.
The AJ must, however, be certain that any recording equipment is in good working
order and properly set up to assure good sound quality; thus, testing the equipment
a day in advance is recommended.
7. HEARING PARTICIPANTS.
a. A Witness as Representative. Parties should be discouraged from assigning a
prospective witness as their representative, although there is no specific prohibition
against this practice. The AJ should arrange for this witness to testify first and
explain that the witness generally will not be permitted to provide
rebuttal testimony.
b. Multiple Representatives. If a party appears with more than one representative, the
AJ must determine the precise role of each to ensure the orderly progress of the
hearing. For example, the AJ should require that only one representative speak for
the party for such time as a given witness is on the stand.
c. Technical Advisors. Occasionally, parties will have technical advisors. It is within the
AJ’s discretion to determine the permissible number of technical advisors. Technical
advisors are not representatives, and should not be allowed to speak for the parties.
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If a technical advisor begins to comment aloud, or question a witness, the AJ should
remind the advisor of his or her limited role at the hearing. If the technical advisor
persists in inappropriate behavior, the AJ may take appropriate action, including
ejecting the advisor.
d. Intervenors and Amicus Curiae. See 5 C.F.R. § 1201.34
.
(1) Intervenors. Intervenors are organizations or persons who want to participate in
a proceeding because they believe the proceeding, or its outcome, may affect
their rights or duties. Intervention, both as of right and permissive, is discussed
in greater detail in chapter 3, section 5, of this Handbook.
(2) Amicus Curiae. An amicus curiae is any person or organization who, in the
discretion of the AJ or the Board, may be granted leave to file briefs containing
advice or suggestions regarding an appeal.
8. SECURITY.
The Board has held that an AJ’s decision to have a security presence (e.g., two Federal
Protective Service Officers) at a hearing “is a procedural matter related to the [AJ’s] broad
discretion in conducting hearings and not a matter that must be argued, justified, and
explained.” Groshans v. Department of the Navy
, 67 M.S.P.R. 629, 641 (1995). The AJ
may request such a presence on the motion of a party or on the AJ’s own initiative, based
on the exercise of sound discretion. A party’s request to the AJ that security be present
is not a prohibited ex parte contact since it does not address the merits of the appeal. Id.
Moreover, the mere presence of security guards outside the hearing room would rarely
constitute intimidation, although a party may rightly complain about the manner in which a
security matter was carried out. Id. Regardless of whether the security presence is
requested by a party or the AJ, to maintain security and the appearance of fairness, all
parties, representatives, and witnesses should be subject to the same measures.
Along these lines, while there is no law on the matter, if a party, witness or observer wears
a gun and the AJ is not comfortable with the presence of the weapon, it would seem to be
within the AJ’s discretion to require the person to store it in a safe location outside the
hearing room, and if the individual does not comply, he may be ejected from the hearing.
9. ORDER OF BUSINESS.
See generally 5 C.F.R. § 1201.58.
a. Opening Statements. Given adequate prehearing processing, an AJ should generally
not permit oral opening statements at the hearing.
b. Case-in-Chief. The party having the burden of proof usually presents its case first.
The other party then presents its case, including any affirmative defenses. When the
agency has the burden of proof, the AJ may require it to address the appellant’s
affirmative defenses, if any, during the agency’s case-in-chief, with the possibility of
also making a rebuttal presentation, if appropriate. While in most cases this means
the agency presents its case first, in an IRA, VEOA, or USERRA appeal, it is the
appellant who has the burden of proof and presents his or her case first.
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If an intervenor is participating in the hearing, the intervenor’s presentation should
immediately follow the presentation of the party with whom the intervenor’s
interests are allied. If the intervenor is not allied with either party, the AJ must
determine if the intervenor should go first so that the parties will have the
opportunity to address the intervenor’s position in their presentations, or go last so
that the intervenor can consider the evidence presented by other parties.
c. Rebuttal and Surrebuttal. The AJ may permit the party with the burden of proof to
present rebuttal evidence at the conclusion of the opposing party’s case, followed by
the opposing party’s surrebuttal, if any.
d. Closing Statements. Because closing statements may provide a strong clue to the
parties’ most significant interests in the case, AJs have the discretion to allow oral or
written closing statements. See also section 15(a) of this chapter.
10. DISPOSITION OF MOTIONS AND OBJECTIONS.
Motions made during the course of a hearing may be oral or written. 5 C.F.R. § 1201.55
.
All other parties are given an opportunity to object to a motion on the record. The AJ must
promptly rule on the motion and may reverse a ruling, if appropriate, at a later time.
Motions and objections should generally not be taken under advisement. If a motion is
made, discussed, or ruled upon when the parties have gone off the record, the AJ must
assure that the tape or transcript properly documents any such off the record discussions or
rulings. See chapter 9, section 5, above.
11. SANCTIONS.
The AJ may impose sanctions upon the parties as necessary to serve the ends of justice.
This authority covers, but is not limited to, situations when a party fails to comply with a
Board order, fails to prosecute or defend an appeal, fails to make a timely filing, and/or
engages in contumacious conduct or conduct prejudicial to the administration of justice.
5 C.F.R. § 1201.43. An AJ may exclude a party, a representative, or other person from all
or any portion of a case proceeding for contumacious conduct or conduct prejudicial to the
administration of justice. 5 C.F.R. §§ 1201.31(d)
, 1201.41(b)(7), and 1201.43. When the
AJ excludes a party’s representative, the AJ will afford the party a reasonable time to obtain
another representative before proceeding with the case. 5 C.F.R. § 1201.43(d).
a. Disruption by the Appellant. If the behavior of an appellant or the appellant’s
representative impedes the progress of the hearing (e.g., repeated discourteous or
disrespectful conduct or continued failure to abide by the AJ’s rulings or directions),
the AJ may eject the offender, or suspend or terminate the hearing. If the AJ does
suspend a hearing, the parties must be notified when the hearing will be continued.
If the hearing is terminated, the AJ must set a reasonable time during which the
record will be kept open for written submissions. In only the most extreme cases of
bad faith may the AJ dismiss the appeal based on counsel’s actions. See
subsection (f) (below).
b. Disruption by Agency or Intervenor. If the agency representative or an intervenor is
ejected from the hearing, the AJ must continue with the hearing. The absence of the
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agency or intervenor must not be permitted to operate to the detriment of
the appellant.
c. Disruption by Other Participants. If another participant to the proceeding, such as a
witness, engages in disruptive conduct, the AJ may eject the offender or suspend the
hearing, but cannot use the participant’s conduct to deprive the appellant of his or
her right to a hearing.
d. Documentation. When an AJ excludes a person from participation in a proceeding,
the AJ shall document the reasons for the exclusion in the record. See 5 C.F.R.
§§ 1201.31 & 1201.43. Usually, the first time a participant disrupts the proceedings,
the AJ should explain the appropriate and expected behavior of hearing participants
and the AJ’s responsibility to maintain order. The participant must be warned not to
continue the misconduct and of the possible consequences if the misconduct is
continued. If the misbehavior or misconduct persists, the AJ should issue a second
warning similar in nature to the first, and add that a third instance of misbehavior
will result in an appropriate sanction, up to and including exclusion. Board decisions
addressing obstreperous conduct by hearing participants include the following:
Roberts v. Federal Aviation Administration,23 M.S.P.R. 112 (1984), aff’d, 795 F.2d
1014 (Fed. Cir. 1986) (Table); Allen v. Veterans Administration, 22 M.S.P.R. 204
(1984); Blanton v. Department of Transportation, 15 M.S.P.R. 605 (1983); and
Snowden v. Department of State, 12 M.S.P.R. 487 (1982).
e. Proceeding Not to Be Delayed. A proceeding will not be delayed because the AJ
excludes a person from the proceeding, except that when the AJ excludes a party’s
representative, the AJ will give the party a reasonable time to obtain another
representative. See
5 C.F.R. § 1201.43.
f. Cancellation, Suspension or Termination of Hearing. An AJ may cancel a scheduled
hearing, or suspend or terminate a hearing in progress, for contumacious conduct or
conduct prejudicial to the administration of justice on the part of the appellant or the
appellant’s representative. 5 C.F.R. § 1201.43(e). If the hearing is suspended, the
parties must be given notice as to when the hearing will resume. If the hearing is
cancelled or terminated, the AJ must set a reasonable time during which the record
will be kept open for receipt of written submissions. Id. But see, Davis v.
Department of Commerce, 120 M.S.P.R. 34, 40, ¶¶ 18-19 (2013) (holding that the
dismissal of the appeal with prejudice was an appropriate sanction when the
appellant through her representative showed bad faith in prosecuting the appeal by
repeatedly ignoring the AJ’s orders, pursuing long-denied motions on the morning of
the hearing and then withdrawing the hearing request at the hearing under the
threat of sanctions, when the request for a decision on the written record should
have been made long before the parties went to the expense of preparing for and
appearing at the hearing); see also Smets v. Department of the Navy, 117 M.S.P.R.
164 (2011) (approving AJ’s dismissal of the appellant’s disability discrimination
defense when her representative’s conduct was unprofessional and disrespectful).
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12. WITNESSES.
a. Witness Instruction. Witnesses should be instructed to spell their full names on the
record. The recording system and the need for oral, audible responses should also
be explained. The AJ may provide the witnesses with written instructions explaining
their role in the hearing. A sample of such written instructions is included at
Appendix B of this Handbook.
b. Administering the Oath. Each witness must be sworn in by the AJ or court reporter
but because certain individuals may object to taking an oath based on religious
grounds, before swearing in each witness the AJ should ask if he or she has an
objection to taking an oath. If not, then the oath or affirmation may be worded:
“Do you solemnly swear (or affirm) that the testimony you give in this proceeding
will be the truth, the whole truth, and nothing but the truth so help you God (or so
help you)?” If recalled, a witness need not be resworn, but should be reminded that
he or she is still under oath or affirmation. The oath for an interpreter may be
worded: “Do you solemnly swear (or affirm) that you will provide a true and
accurate translation of the testimony given by this (these) witness(es) so help you
God (or so help you)?” If the witness has objected to taking an oath, the AJ can
have the witness affirm. If the witness objects to affirming, the AJ could have the
witness state the following: “I understand that I must accurately state the facts. I
agree to testify under penalty of perjury. I understand that if I testify falsely, I may
be subject to criminal prosecution.”
c. Order of Witnesses. Generally, the parties determine the order in which witnesses
will be called. The AJ may require the parties to identify the order of witnesses. The
AJ may permit or direct a change in the order of presentation.
d. Cross-Examination. Each witness is subject to cross-examination.
e. Witnesses’ Representatives. A witness is entitled to have a representative while
testifying, but the representative of a nonparty witness has no right to examine the
witness at the hearing or otherwise participate in the development of testimony. See
5 C.F.R. § 1201.32.
f. Sequestration. It is good practice to routinely sequester witnesses and to caution
them not to discuss their testimony with other witnesses during the hearing. See
generally
5 C.F.R. § 1201.41(b)(6). Experience has shown that many witnesses
frequently ignore this instruction. Therefore, they should be reminded that failure to
heed this cautionary requirement could lead to sanctions against one or the other of
the parties, if that party has participated in the discussion, or that it could cause
prejudice to a party, especially when the witness discusses testimony with a person
who will later provide testimony in the same or a related proceeding.
g. Witness Fees. Although witness fees are considered nonrecoverable costs and
therefore are not reimbursable as a part of attorney fees, a non-Federal employee
witness has the right to “the same fee and mileage allowances which are paid
subpoenaed witnesses in the courts of the United States.” The party requesting the
witness’s appearance must pay the fee and allowances pursuant to 28 U.S.C.
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§ 1821(b). See In re Maisto, 28 M.S.P.R. 436, 439 (1985). The party must offer
payment at the time the subpoena is served, or if the witness appears voluntarily,
then at the time of the appearance. 5 C.F.R. § 1201.37(c). Absent such tender or
payment, the Board has denied enforcement of a subpoena. Alejandro v.
Department of Transportation, 13 M.S.P.R. 463, 464 (1982); cf. Swafford v.
Tennessee Valley Authority, 30 M.S.P.R. 130 (1986) (subpoena for a local deposition
was not defective when the appellant was ordered to appear and did not claim that
she did not appear because of the failure to proffer travel expenses). Federal
employees “will be in official duty status and will not receive witness fees.” 5 C.F.R.
§ 1201.37(a). This includes compensation for time spent traveling to and from
hearings, time spent waiting to testify, and for the travel expenses incurred;
compensation for time spent on a hearing could be ordered at an overtime rate if a
witness appeared at the hearing during nonduty hours. See In re Douglas,
32 M.S.P.R. 389, 391 (1987). The Board’s compliance and enforcement authority,
however, is limited to final decisions issued under its appellate jurisdiction, and a
nonparty seeking enforcement of a final Board order must file both a petition for
enforcement and a motion to intervene under 5 C.F.R. § 1201.34(c). See 5 C.F.R.
§ 1201.182(a), (c). While the Board “apparently” lacks authority to address witness
fees prior to a final decision, Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 197
(1997), it has waived its regulation and held that on remand, the AJ may consider
the witness’s claim that the agency denied him compensation for the time and
expenses incurred in his participation as a nonparty witness at the hearing. Id.
However, the Board has declined to interpret 5 U.S.C. § 7521 as requiring agencies
to allow appellants official time and resources to pursue their appeals in the absence
of any agency regulation specifically providing such a right. White v. Social Security
Administration, 76 M.S.P.R. 447, 466-67 (1997). While section 7521 relates to
appeals of ALJs, nothing in the statutes or regulations applicable to appellate
jurisdiction cases appears to change that result.
13. OFF-THE-RECORD DISCUSSIONS.
Substantive discussions off the record should be rare. Any disputes as to a procedure or
evidence should be preserved on the record in the event of review. The AJ must summarize
the discussion and ask the parties to confirm the accuracy of the summary. Related to this,
if a hearing is stopped for any reason, such as an equipment failure, the AJ should assure
that the court reporter does not continue to record the proceedings during that time unless
all parties can hear what is occurring and something of substance is being discussed.
14. PRESENTATION OF EVIDENCE.
a. Admissibility.
(1) Admission of Evidence. While it is desirable that no irrelevant testimony be
introduced in hearings, occasionally some testimony is sought that is of
questionable relevance. The AJ must exercise judgment in deciding whether to
admit the testimony.
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Since admitting the evidence puts the opposing party in the position of having to
defend against it, an AJ should make definite rulings on the admissibility of
evidence as often as possible to avoid overly prolonging hearings to receive
doubtfully relevant evidence. Do not routinely accept doubtfully relevant
evidence “for what it’s worth.”
(2) Affidavits and Depositions. Affidavits and depositions may be accepted into
evidence at a hearing, despite objections, upon a reasonable showing by the
offering party of the unavailability of the affiant to testify. There is generally no
need to play recorded or videotaped depositions at the hearing unless one of the
parties wishes the AJ to rule on an objection made at the deposition.
(3) Microfilm and Other Non-Original Records. Microfilm records or reproductions of
any memorandum, writing, entry or representation, or combination thereof, of
any act, transaction, occurrence, or event that have been kept or recorded in the
regular course of business are admissible into evidence if satisfactorily identified.
Such a reproduction is as admissible as the original itself, whether or not the
original is in existence.
a. Offers of Proof. When an objection to a question is sustained by the AJ and the
testimony of the witness is therefore not admitted, the party asking the question, at
the discretion of the AJ, may make an offer of proof on the question.
b. Production of Evidence by Order of the AJ. An AJ may order the parties to produce
evidence and witnesses whose testimony would be relevant, material, and
nonrepetitious. See
5 C.F.R. § 1201.41(b)(10).
c. Production of Statements. After an individual has given evidence in a proceeding,
any party may request a copy of any prior signed statement made by that individual
that is relevant to the evidence given. If the party refuses to furnish the statement,
the AJ may exclude the evidence given in the Board proceeding. See
5 C.F.R.
§ 1201.62.
d. Stipulations. The parties may stipulate to any matter of fact. The stipulation will
satisfy a party’s burden of proving the fact alleged. See 5 C.F.R. § 1201.63.
e. Official Notice. Official notice is the Board’s or AJ’s recognition of certain facts
without requiring evidence to be introduced establishing those facts. The AJ, on his
or her own motion or on the motion of a party, may take official notice of matters of
common knowledge or matters that can be verified. The parties may be given an
opportunity to object to the taking of official notice. The taking of official notice of
any fact satisfies a party’s burden of proving that fact. See
5 C.F.R. § 1201.64.
f. Exhibits.
(1) General. All documents offered for introduction into the record are first marked
for identification as an exhibit for the party (e.g., Appellant’s Exhibit A, Agency’s
Exhibit 1, etc.). This procedure applies whether or not the exhibit is received into
evidence. Generally, the parties should be required to mark and index their own
exhibits before the hearing. The AJ may choose another method of marking the
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exhibits if it is more efficient. The relevance and admissibility of the exhibits
should have already been determined during the prehearing conferences. Parties
must provide each other with copies of their exhibits. Evidence introduced solely
at the direction of the AJ must be identified and numbered as an exhibit of
the AJ.
(2) Ruling on Exhibits. The AJ must state on the record that the exhibit has been
marked as (insert identification of party’s) exhibit number or letter (insert
number or letter) and that it has been admitted into evidence.
(3) Rejected Exhibits. Except under extraordinary circumstances, physical objects
(tools, weapons, drugs, or other contraband, etc.) should not be received into
evidence. When physical objects are of such probative value as to be material or
relevant to a party’s burden of proof, the party seeking to admit the physical
object into evidence should use an alternative method (photographs, verbal
descriptions, stipulations, etc.). Particularly as the Board moves closer to
all-electronic records, what might otherwise be a physical exhibit must be
entered into the record in an electronic format, through description, testimony,
photograph, etc. If a physical object is proffered and rejected by the AJ on
evidential grounds other than its suitability for inclusion in the record, the AJ
should verbally describe the object on the record immediately following the
ruling on admissibility. All other rejected exhibits must be maintained in a
“Rejected Exhibit” section of the appeal file, properly tabbed and identified as
such. When a rejected exhibit is too voluminous or bulky or is otherwise
unsuitable for enclosure in a “Rejected Exhibit” section of the file, the AJ should
describe the rejected exhibit on the record, immediately following the ruling on
admissibility, and substitute a brief verbal description for inclusion in the
“Rejected Exhibit” section of the appeal file. Exhibits that are rejected as
duplicates of material already contained in the appeal file may simply be returned
to the proffering party and need not be included in the “Rejected Exhibit” section
of the appeal file.
(4) Withdrawn Exhibits. The AJ must state that the exhibit (identifying party and
number or letter) is withdrawn, and then return the withdrawn material to the
party who originally submitted it. The AJ may retain exhibits when controversy is
likely or removal from the record may cause confusion.
15. WRITTEN SUBMISSIONS IN ADDITION TO HEARING.
a. Briefs and Written Arguments. After the hearing ends, the AJ may order or permit
the parties to submit post-hearing briefs or written arguments. 5 C.F.R.
§§ 1201.41(b)(9) and .59(a). Parties sometimes ask to review the transcript or tape
of the hearing before submitting a brief or written argument. It is within the AJ’s
discretion to grant or deny such a request. If the parties are allowed to submit briefs
or written arguments, the date by which that material must be received must be
specified in the record. Responsive briefs should rarely be permitted since the
parties should already be aware of all factual and legal issues. The record is closed
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at the end of the hearing except for the submission of the requested
written material.
b. Exhibits. When an exhibit was going to be introduced into the record but is still
outstanding at the conclusion of the hearing, arrangements must be made for its
subsequent receipt. The document should be identified and assigned an exhibit
number or letter, and when it is submitted, provided to the other party for inspection
and written comment, if appropriate.
16. CLOSING THE RECORD.
a. Notification of Parties. The parties must be notified of the close of record date in all
cases. See 5 C.F.R. § 1201.59(a) and (b).
b. Reopening the Record. Once the record is closed, no additional evidence or
argument may be accepted into the record except upon a showing that new and
material evidence has become available that despite due diligence was not readily
available prior to the closing of the record. Of course, the AJ may reopen the record
on his or her own motion prior to issuing the initial decision. For example, when a
party has raised new issues or new evidence in a timely, but last-minute submission,
the AJ must reopen the record to afford the other party(ies) an opportunity to
respond. See Schucker v. Federal Deposit Insurance Corporation, supra, chapter 10,
section 1c(3); 5 C.F.R. § 1201.59(c). After the initial decision is issued, requests for
reopening may not be granted. The AJ retains only the very limited authorities set
forth in
5 C.F.R. § 1201.112(a).
17. BENCH DECISIONS.
At the close of the hearing, if the issues have been clearly delineated and addressed, and
the AJ is confident they can be decided without further review of the record, the AJ may
announce his or her findings and conclusions in a bench decision. For guidance and
procedures, see chapter 12, section 5.
18. VERBATIM RECORD OF THE HEARING.
A verbatim record made under the supervision of the AJ must be kept of every hearing and
will be the sole official record of the proceeding. 5 C.F.R. § 1201.53(a)
. The hearing tape,
CD, or other recording medium used by the court reporter or the AJ is the official verbatim
record and must be retained with the file notwithstanding receipt of a transcript. Upon
receipt of hearing tapes, the RO is responsible for ensuring that the recording prevention
tabs have been removed from the audio tape cassettes. If the Board has received an
electronic transcript either because it purchased one or because one of the parties did, the
transcript will become part of the electronic record/repository in all cases, regardless of
whether the parties are e-filers. Verbatim recordings when available electronically, are also
made part of the case record.
a. Requests for Copies of Audio Tapes, CDs, or other recording medium. This section
applies whether the recording was produced by a court reporter or the Board.
Although the policy of making hearings in all formats part of the electronic record
cuts down on the need for additional procedures, upon request for copies of the
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recording, the regions have the options of (a) copying it in-house, (b) having the
court reporter copy it, or (c) sending it to OCB to be copied. Costs are determined
and charged following this guideline:
(1) From a Party. Pursuant to 5 C.F.R. § 1201.53(c)
, “[c]opies of recordings or
existing transcripts will be provided upon request to parties free of charge.” Such
requests must be filed with the AJ if the appeal is still pending in the office, or
with OCB if the ID has been issued.
(2) From Anyone, under FOIA. The Board can charge the individual making the
request for both search time and photocopying, as set forth in 5 C.F.R.
§ 1204.12(e).
(3) Lowest Cost to All. It is a good policy to provide copies at the lowest cost to the
requester, and to the RO, considering the availability of staff and adequacy of
equipment to do the copying task. The regulations regarding waiver and FOIA
rates, as applicable, must be followed. Although OCB will produce copies for all
ROs, local sources may save time and mailing costs. Moreover, directing anyone
who wishes to have a tape, CD, etc., other than an appellant for whom fees will
be waived, to the court reporter will save the resources of the office and of OCB
and will accord with the Court Reporting Services General Requirements
Agreement. See chapter 4, section 5b.
b. Hearings Recorded by Board Employees. The Board employee taping the hearing is
responsible for the preparation of a speaker tape index. This index shows the
approximate location of the witnesses’ testimony on the hearing tape or CD. At the
beginning of the hearing, the AJ must inform the parties of the procedure for
requesting a copy of the hearing tape(s) or CD(s) and the requirement that the
requesting party pay a fee for the reproduction. If the hearing is held by telephone
and recorded by the phone, then the recording is transferred to a CD, in order to
create an index, it will be necessary to keep track of the amount of time elapsed
between witnesses so that the index can indicate the approximate point, by time
since the start of the hearing, at which each witness’s testimony begins. This task
may be done by the AJ or by the support staff who transfers the hearing to the CD
and certifies the recording as audible and accurate.
c. Defective Tape Recordings or other Recording Media - Responsibility. The AJ is
responsible for checking the recordings to be sure they are audible and complete. If
a court reporter provides an AJ with inaudible, incomplete, or defective recordings,
the following procedure should be followed:
(1) The CAJ (or designee) must notify the reporter that the recordings are defective.
(2) The reporter is given 7 days to have the defective product enhanced or
corrected. If the replacements are acceptable, the reporter is notified by
telephone and the replacements are accepted into the record.
(3) If the replacements are unacceptable and the court reporter is unable to produce
an acceptable copy, the AJ must notify the parties that the recordings are
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defective. The AJ should ask the parties whether they would agree to either of
the following alternatives or if they can jointly and with the agreement of the AJ
arrive at a resolution of the matter: 1) Stipulating as to the content of the
affected testimony; or 2) retaking the testimony through alternative means
(affidavit, etc.). If the parties will not agree to either of these methods, the AJ
must arrange for a rehearing. The rehearing may be conducted by telephone
only if that would have been an appropriate method in the first instance.
Pursuant to the contract, the reporter, without additional charge to the Board,
will again record such part of the proceeding as is necessary to provide an
acceptable record.
If the reporter fails to record the rehearing, the RO will obtain services from a
substitute. The original reporter is liable for all loss, damage, and expense
occasioned by the reporter’s failure to perform, and the CAJ (or designee) must
make demand from the reporter for the amount necessary to reimburse the
Board. Should the Board be unable to determine the actual damages, the CAJ
(or designee) may elect to demand liquidated damages in the amount stated in
the Court Reporting Services General Requirements Agreement. Prior to taking
action for damages, the CAJ must notify ORO in writing of the reasons for
such action.
(a) Recording of Proceedings by Individuals. At the discretion of the AJ, if special
circumstances appear to warrant it, participants may be permitted to record the
hearing. However, they must be advised in writing or on the record at the
hearing that their recording is not an official record. In light of the Board’s
general policy that electronic devices are not to be operated during hearings,
such exceptions should be rare.
(b) Correction of Hearing Media. Although the court reporter or AJ’s recording is the
official verbatim record of the proceeding and its integrity must be protected at
all times, certain limited situations may arise when material may be erased from
the hearing tapes or other medium. For example, detailed settlement discussions
or material inadvertently recorded by the court reporter after the AJ indicated
that the hearing would go off the record may be erased from the hearing record.
Any time the AJ has anything erased, the AJ shall state on the record exactly
what is being deleted and why, and shall provide the parties an opportunity to
object to the erasure on the record.
(c) Hearing Record and AJ Decorum. As a general rule, the AJ should assume that
anything said in the hearing room is subject to recording and inclusion in the
verbatim record. Thus, even when the AJ believes that the proceeding is not on
the record or that the parties cannot hear the AJ, the AJ is expected to maintain
appropriate judicial conduct and impartiality.
19. TRANSCRIPTS.
The parties or the AJ, with the approval of the CAJ and ORO, may request an official
transcript of the hearing, along with a searchable electronic version on a CD, if available.
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The procedures for ordering a transcript and for waiver of costs are set forth in
subsection d, below.
a. Status of Transcripts. Even if the CAJ and ORO approved a request from the AJ to
have the tape(s) or CD of the hearing transcribed or the RO received a courtesy copy
of the official transcript from the court reporter, the official record of the hearing
remains the tape(s) or CD as recorded by the court reporter. In any conflict between
a hearing tape, the CD, and the hearing transcript, the tape or CD is authoritative.
b. Consideration of Partial Transcripts. Sometimes an AJ may find it necessary to have
a portion or all of the hearing transcribed. If the parties have not ordered transcripts
and the Board has not received a courtesy copy from the reporting service, the AJ
should first consider requesting a partial transcript with only the witnesses’
testimony that is likely to be cited in or necessary to the ID. As stated previously,
the AJ must obtain permission from the CAJ and from ORO before ordering a partial
or a complete transcript.
c. Transcript of a Hearing Recorded by a Board Employee. If either party wants an
official written transcript of a hearing recorded by a Board employee, the party must
contact the R.O.’s Supervisory Paralegal. The Supervisory Paralegal will arrange with
a contracted reporter for transcription of the tapes. Because the Board must
maintain control over the hearing tapes or CD, transcription will be done only by a
court reporter who is subject to the Court Reporting Services General Requirements
Agreement. Therefore, parties cannot use a court reporter of their choice, unless the
reporter of choice is also subject to the Agreement. The transcript will be paid for by
the requesting party. Before the tapes or CD are sent to the reporter for
transcription, the Board employee who recorded the hearing must certify them in the
following manner:
Authentication and Certification
“This is to certify that the proceedings before
[Administrative Judge], of the Merit Systems Protection Board
[name of] Region, in the matter of:
***** v. *****, MSPB Docket No. *****
were held on [date(s)], as herein recorded, and
that this is (these are) the original monitored recording(s)
of that hearing.”
Date_____________________
Name_____________________
(Recording Monitor)
d. Requests for Copies of Transcripts. Under the Court Reporting Services General
Requirements Agreement, the Board is to receive a courtesy copy of a transcript if a
party orders one, and in appropriate cases, the Board orders its own transcript.
Upon receiving a request for a copy of a transcript in a Board file, the regions may
either (a) copy the transcripts in-house; (b) have the court reporter create a
duplicate transcript; or (3) send them to an outside photocopier or OCB to be copied.
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Costs are determined and charged following the guideline below. Electronic
transcripts are placed into the repository in e-Appeal.
(1) From a Party. The Board can charge the party (a) what the court reporter
charges; (b) $0.20 per page using the amount cited in the Board’s FOIA/Privacy
Act regulations. Because the first 100 pages are free, and Board policy waives
the next $100.00 of costs, computation of costs would normally start at
page 601. See 5 C.F.R. § 1204.12(e)(4) for costs for other types of media. The
Board may also waive costs for good reason (the AJ or Supervisory Paralegal
usually decides). See 5 C.F.R. § 1204.12(f).
(2) From Anyone, under FOIA. MSPB can charge the party (a) what the court
reporter charges, or (b) $0.20 per page using the amount cited in the Board’s
FOIA/Privacy Act regulations, under which the first 100 pages are free. Costs are
computed starting at page 601, as set forth in subsection (d)(1),
immediately above.
e. As to either tapes or transcripts, any money collected must be deposited according
to the Board’s Office of Financial and Administrative Management guidelines. Finally,
as stated above in connection with tapes or other audio record, the Board’s FOIA
regulations must be followed, and it is generally a good policy to provide transcripts
at the lowest cost to the requester, keeping in mind, however, the burden to the
office and/or OCB, and the Court Reporting Services General Requirements
Agreement.
f. Correcting the Transcript. See 5 C.F.R. §§ 1201.53(d) and .112
.
(1) Authority of the Administrative Judge. The AJ retains jurisdiction over a case
following issuance of a decision to the extent necessary to correct the transcript.
5 C.F.R. § 1201.112.
(2) Errors of Substance. Corrections of the transcript will be permitted only when
substantive errors are involved. Generally, these are errors which, if corrected in
the manner proposed by the moving party, would give a different meaning to
testimony or statements in the transcript.
(3) Documenting the Record. If the AJ approves correction of the transcript, he or
she must issue an order explaining the reasons for the approval and listing the
corrections that have been made.
(4) Motions Filed after Case is Petitioned to the Board. If a motion for correction of
the transcript is filed with the AJ after the ID has been issued and a PFR has been
filed, the AJ must notify OCB of his or her receipt and disposition of the motion.
20. CERTIFICATION OF THE HEARING RECORD.
The Court Reporting Services General Requirements Agreement requires a signed
authentication and certification page for a “hard copy transcript, diskette or CD.” It includes
the language the reporters are to use. Upon receipt of the transcript, tape, or CD, each
office should check to assure that the court reporter signed the certification and that it is
accurate, to limit concerns about the authenticity and completeness of the product. If the
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CHAPTER 11 - SETTLEMENT
1. POLICY.
The Board favors settlements that are consistent with law, equity, and public policy. The
Board encourages creative use of alternative dispute resolution. The method used by the
AJ, however, must comport with the requirements of due process.
2. TIMING.
A case may be settled at any time before an ID becomes final under 5 C.F.R. § 1201.113
.
An AJ may vacate an ID to accept a settlement agreement into the record when the
settlement agreement is filed by the parties prior to the deadline for filing a PFR, even if it
is not received by the Board until after the date the ID becomes final. See
5 C.F.R.
§ 1201.112 (a)(4). The ID will not become the Board’s final decision if any party timely
files a PFR or requests that the ID be vacated to accept a fully executed settlement
agreement into the record. 5 C.F.R. § 1201.113(a).
3. DISMISSALS ON THE BASIS OF SETTLEMENT.
Before an appeal may be dismissed on the basis of a settlement agreement, the AJ must
find that (1) the parties reached a settlement, (2) they understood the terms of the
agreement, and (3) they agreed whether it is to be entered into the record for enforcement
purposes. See Mahoney v. U.S. Postal Service
, 37 M.S.P.R. 146 (1988).
4. ACCEPTANCE INTO THE RECORD.
The AJ must review a settlement agreement that is offered into the record to determine that
the agreement is lawful on its face and that it was freely entered into by the parties. Where
the settlement involves a “last chance agreement” in which the appellant waives the right to
bring a future appeal to the Board, the AJ must also review the agreement to determine
whether it was fair. See McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988);
O’Neal v. U.S. Postal Service
, 39 M.S.P.R. 645, aff’d, 887 F.2d 1095 (Fed. Cir. 1989)
(Table); Ferby v. U.S. Postal Service, 26 M.S.P.R. 451 (1985).
When an appellant raises a nonfrivolous factual issue regarding the agency’s compliance
with a last chance settlement agreement, that issue must be resolved before the scope and
applicability of the appeal rights waiver is addressed. See Stewart v. U.S. Postal Service,
926 F.2d 1146 (Fed. Cir. 1991).
While a substantive jurisdictional finding had, for many years, been necessary to the
Board’s exercise of both its power to enforce and its authority to award attorney fees,
Shaw
v. Department of the Navy, 39 M.S.P.R. 586 (1989), the requirement that the AJ find
jurisdiction before accepting a settlement into the record was overturned in Delorme v.
Department of the Interior, 124 M.S.P.R. 123 (2017). Thus, settlements of constructive
adverse actions, IRAs, probationary appeals, etc. may be accepted for enforcement without
the need for potentially lengthy proceedings to determine jurisdiction.
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5. AUTHORITY.
As just discussed, the Board may now accept into the record settlement agreements for
appeals over which no determination of jurisdiction has been made. Of course, if they
choose to do so, the parties may still settle the case and the appellant withdraw the appeal
without submitting the agreement to the Board. As to issues of timeliness, it has been held
that objections on the basis of the untimeliness of the appeal are considered waived when
the appeal is settled, so that an AJ may accept a settlement without ruling on the issue of
timeliness. See McNamee v. Veterans Administration, 39 M.S.P.R. 530 (1989). In any event,
it is not proper to dismiss an appeal as settled but not take it into the record for
enforcement when the agreement states that it will be enforced. As is true of any issue
during the crafting of a settlement, both parties must agree on whether the agreement is to
be made enforceable. If they do not, there is no agreement and the parties must either
renegotiate the enforcement term or continue litigating the appeal.
6. ENFORCEMENT.
If the settlement agreement is entered into the record, the Board retains jurisdiction to
enforce the agreement. If it is not entered into the record, the Board has no enforcement
authority and the parties must be so advised prior to the dismissal of the appeal.
7. ORAL AGREEMENTS.
An AJ must require that the terms of an oral settlement agreement be either tape recorded
or reduced to writing if they are to be enforceable. The AJ should question the parties
carefully to find out precisely what they intend whenever an oral agreement later is to be
reduced to writing. The key question is whether the parties merely intend the writing to
memorialize their agreement or whether they intend not to be bound until the agreement
has been reduced to writing and executed. See Mahboob v. Department of the Navy,
928 F.2d 1126 (Fed. Cir. 1991). If the agreement is recorded, the AJ should record the
agreement on tape or a CD, or if reached at hearing, the court reporter should assure it is
recorded. This will facilitate future review, if necessary. In lieu of signatures, the parties’
consent to be bound must be stated clearly. The parties must be made aware that, absent
an agreement to be bound only by a written agreement, the oral settlement is final and
binding on the terms agreed upon.
8. SUSPENDING CASES FOR THE MEDIATION APPEALS PROGRAM.
A case and all remaining deadlines must be suspended when an appeal is accepted into the
Board’s Mediation Appeals Program. 5 C.F.R. § 1201.28(d). See chapter 3, section 12
for details.
9. SETTLEMENT OPTIONS.
The Board offers the parties three avenues to discuss possible settlement of their cases.
a. First is discussion of settlement with the adjudicating AJ. AJs should seek to get a
waiver of ex parte communications from each party to assist in the process so that
they can talk individually to the parties about the merits of the case. Through his or
her review of the evidence filed by the parties, the AJ becomes thoroughly familiar
with the case and is in the best position to discuss its strengths and weaknesses, as
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well as to evaluate not just the likelihood of success but also the validity of
settlement offers made by the parties, and to suggest proposals for their
consideration. The AJ should assure the parties that any settlement discussions with
the AJ will have no effect on the ultimate outcome of the appeal if the case does not
settle. Although some parties may be hesitant to discuss the merits of the case with
the AJ, an AJ’s honest assessment of the strengths and weaknesses of a case is not
indicative of bias. See, e.g., Brown v. Department of the Interior, 86 M.S.P.R.
546 (2000).
b. Second is the option to obtain a Settlement Judge. Like an adjudicating AJ, the
Settlement Judge is an AJ and is fully capable of evaluating the parties’ evidence and
arguments. A Settlement Judge is generally from the same regional office as the
adjudicating AJ and offers one way to get an AJ’s trained view on the merits of the
case without revealing concerns about one’s position to the adjudicating AJ if the
case does not settle. A Settlement Judge will only be appointed if both parties
express a genuine interest in settlement, and because of the resources involved, the
CAJ or RD must approve before a Settlement Judge will be appointed.
c. Finally, there is an option for mediation, the Mediation Appeals Program (MAP). This
is a voluntary, confidential process in which the parties meet with a trained mediator
in a nonlitigious, nonadversarial setting. The mediator may be an AJ or another
MSPB employee familiar with Board law and regulations. Both parties must agree to
mediation, and the adjudicating AJ must concur that it could be beneficial, given the
circumstances of the case and of the parties. Mediations are generally held in person
at a location convenient to the parties, but in some situations may be accomplished
by video or telephone. MAP is a confidential process, and the parties are required to
sign an agreement pledging confidentiality and agreeing to certain other rules stated
therein. Only after the parties sign the agreement will a mediator be appointed. If
the case does not settle, the mediator will not discuss what occurred in MAP with the
adjudicating AJ. AJs who believe the parties might benefit from MAP should direct
them to the Board’s website, www.mspb.gov, Appeals tab, Mediation Appeals
Program subtab, for more information on mediation.
.
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CHAPTER 12 - INITIAL DECISIONS
1. GENERAL.
a. When a Decision Is Required. Once a case has been docketed as an appeal, it must
be closed by issuance of a decision. A rare exception to this rule is when the case
has been erroneously docketed and has been deleted from the CMS. Paralegals
should contact the Board’s Office of Information Resources Management if they
believe a case should be deleted.
b. Who May Issue. The ID is issued by the AJ assigned to that case. See 5 C.F.R.
§ 1201.111(a). On an exceptional basis, however, in the AJ’s absence, because the
authority to adjudicate appeals is delegated from the Board through the RD or CAJ to
the AJ, the RD or CAJ may sign the decision “for” the AJ (or the decision may be
signed with the name of the AJ “by” the RD or CAJ), even if the AJ has held a hearing
on appeal. The delegation of signature authority does not extend beyond this to, for
example, a fellow AJ or paralegal.
c. Time Frames. Ideally, an ID should be issued within 120 days of the receipt of the
appeal by the RO except for good cause shown. As noted previously, due process
and fairness are paramount in determining good cause. Caseloads and the
circumstances of the RO or AJ are also factors for consideration. In many instances,
such factors can be ameliorated by shifting cases among AJs or between ROs. Also,
as a result of the suspension provisions in the Board’s regulations, see
5 C.F.R.
§ 1201.28 and chapter 3, section 12 of this Handbook, the parties may seek
extended times for settlement and thereby move the case forward more quickly once
it is returned to adjudication or as settled.
d. Citation to Transcripts, Tapes, CDs, and/or the Record. The AJ must support his or
her findings and conclusions in the ID with appropriate citations to the hearing
tape(s)/CD(s). When an official transcript is available, the AJ may cite the transcript.
If materials in the record are relied upon, the ID must cite them by tab number and,
when the parties have complied with the direction in the acknowledgment order, by
page number as well.
2. ORGANIZATION OF THE DECISION.
The ID should usually be divided into the following sections, with a liberal use of headings
and subheadings to help the reader navigate the ID with ease. The following headings are
suggestions and are not mandatory in every ID.
a. Introduction. This section must identify the following: The filing date of the petition,
the agency (if not clear from the caption of the decision), the action appealed, the
effective date of the action (or an indication that the appeal was timely filed), and
the disposition of the appeal.
If the original appeal was rejected as defective, the original filing date will be in the
main text of the introduction. The refiling date can be referenced in the main text or
in a footnote.
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b. Jurisdiction and/or Timeliness.
(1) Jurisdiction. If the appeal is clearly within the Board’s jurisdiction, the ID must
contain a brief statement to that effect, citing to appropriate authority, but it
is not necessary to have a separate jurisdiction section of the ID.
The ID must contain a full jurisdictional analysis under the following
circumstances: (a) the appeal is not within the Board’s jurisdiction; (b) the
appeal is found to be within the Board’s jurisdiction but involves an issue of first
impression or one in which jurisdiction is unclear or contested; or (c) the appeal
involves a question of the voluntariness of a resignation, retirement, etc.
(2) Timeliness. Timeliness need not be addressed in detail unless the appeal
presents a significant question about its timeliness. When the AJ has informed
the parties of a question as to the timeliness of the appeal and sought their
response, the ID should resolve the matter, even if the responses clearly show
that the appeal was timely. If the record is sufficiently developed on the issue of
timeliness or other grounds to show that an appeal should be dismissed on other
than a jurisdictional basis, the AJ can properly determine, by assuming arguendo
that the appeal is within the Board’s jurisdiction, that dismissal of the appeal is
warranted. Of course, such determination would be without actually making fact
findings and conclusions of law on the jurisdictional issue. See
Popham v. U.S.
Postal Service, 50 M.S.P.R. 193 (1991). An appeal may not be dismissed as
untimely before a finding of jurisdiction is made in constructive action appeals.
In such cases, the agency is required to have notified the appellant of appeal
rights only if it knew or should have known the appellant considered the
apparently voluntary action to be involuntary. In such cases, the jurisdictional
and timeliness issues are “inextricably intertwined;“ that is, that resolution of the
timeliness issue depends on whether the appellant was subjected to an
appealable action. See Romine v. U.S. Postal Service, 64 M.S.P.R. 68, 72-73
(1994); Popham, supra, at 198 n.5.
c. Background. A background section is used to explain the background of the case,
unusual case processing, or prior appellate history. It should not analyze
contested facts.
d. Analysis and Findings. This section includes a description of the parties’ burdens of
proof and a definition of the relevant legal standards. It also contains findings of fact
and conclusions together with a thorough analysis explaining the reasons for these
findings and conclusions.
5 C.F.R. § 1201.111(b)(1) and (2); Spithaler v. Office of
Personnel Management, 1 M.S.P.R. 587 (1980). When an appeal presents material
credibility issues, the AJ must address them under the Board’s guidance in Hillen v.
Department of the Army, 35 M.S.P.R. 453 (1987). All material allegations raised by
the parties, even if they are not reviewable by the Board, must be mentioned in the
ID. The AJ must adjudicate all allegations of discrimination, as well as all other
prohibited personnel practices, within the Board’s jurisdiction (identified in
5 U.S.C.
§ 7702(a)(1)(B)) even if the case is to be reversed on other grounds. See Morey v.
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Department of the Navy, 38 M.S.P.R. 14 (1988); Marchese v. Department of the
Navy, 32 M.S.P.R. 461 (1987). As stated above, in chapter 9, section 6b, all
affirmative defenses that are raised must be addressed, whether on the merits or to
note that they were withdrawn and will not be addressed further, or to find that they
may not be addressed because the appeal is being dismissed.
All elements of each party’s burden of proof must also be addressed. In an adverse
action case, for example, the AJ must make findings regarding whether the agency’s
penalty was reasonable and whether its action promoted the efficiency of the service.
e. Decision. This section sets forth the AJ’s order as to the final disposition of the case,
including appropriate relief. 5 C.F.R. § 1201.111(b)(3). Appendix B, Code Table 8a,
of the CMS Users Guide contains a complete list of decision closings for initial
decisions, addendum cases, stays, and protective orders.
f. Order. If appropriate, the AJ must specify the corrective action to be taken by the
agency and the timeframe within which it must be completed.
g. Finality Date. The AJ or the support person who closes out the case must include in
the ID the specific finality date. Although the notice of the parties’ rights informs
them of the 35-day deadline for filing a PFR, a specific date is less ambiguous, and
therefore less subject to misinterpretation, especially by a pro se appellant. See
5 C.F.R. § 1201.111(b)(5). Although the failure to include a finality date may in
certain circumstances be deemed to be harmless error, see Upshaw v. Department of
Defense, 56 M.S.P.R. 94, 97 (1992), aff’d, 5 F.3d 1502 (Fed. Cir. 1993) (Table), the
absence of a finality date, combined with other factors, may be good cause for
waiver of the PFR filing deadline. See
Hamner v. Department of Housing & Urban
Development, 93 M.S.P.R. 84, ¶¶ 8-9 (2002).
h. Interim Relief. If the appellant in an appeal governed by 5 U.S.C. § 7701 is the
prevailing party, the ID should provide interim relief, if appropriate, effective upon
the date of the ID and remaining in effect until the date of the final order of the
Board on any PFR. See
5 U.S.C. § 7701(b)(2); 5 C.F.R. § 1201.111(b)(4) and (c).
Interim relief rarely is granted in retirement cases. See Steele v. Office of Personnel
Management, 57 M.S.P.R. 458 (1993), aff’d, 50 F.3d 21 (Fed. Cir. 1995) (Table). If
the AJ has determined that interim relief should not be granted, the ID should
contain a concise statement of his or her reasoning.
i. Signature. Each ID must be signed by the AJ (or by the RD or CAJ for the AJ), as
discussed in section 1b, above. The signature must be preceded by the phrase, “For
the Board:” in either event.
In cases in which the parties are served electronically, the ID, as well as any Order,
Notice, or other document sent by the AJ should be “signed” /s/. For an actual
signature to be transmitted electronically, the signed document would have to be
scanned, making the electronic file larger and the document more difficult to deal
with. While it is anticipated that e-signatures will be used at some point, for now the
technology to make them a reality is lacking. Nonetheless, the copy of the
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document that goes into the paper record, if the official record is paper, should be
signed in the usual manner.
j. Review Rights. Each ID must contain the appropriate standardized closing
paragraphs. This includes notice of both the parties’ right to file a petition for review
with the Board and the appellant’s right to seek judicial review. While the standard
notice of judicial review rights used to inform the appellant of only mixed or non-
mixed appeal rights, and whistleblower or non-whistleblower rights, current practice
is to set out a summary of all available appeal rights, but not provide legal advice on
which option is most appropriate for any individual case or specify how courts will
rule regarding which cases fall within their jurisdiction. Thus, all decisions now
contain the same notice, regardless of the issues that were raised on appeal.
k. Referral to Special Counsel. In IRA appeals, the case must be referred to OSC if
whistleblower retaliation has been found. 5 U.S.C. § 1221(f)(3). However, the
referral will be done by OCB so that the ROs have no obligation to track the finality
of any such cases. See chapter 15, section 8 of this Handbook.
l. Sensitive Security Information (SSI). Decisions that may contain SSI may be issued
to the parties but must not be distributed beyond them until they have been cleared
by the Department of Homeland Security. Further, they may not be served by
e-Appeal. See chapter 17, sections 4-5. The AJ must follow the internal procedures
for SSI. Cases involving similar types of information that the agency may wish to
keep out of general circulation should be raised to OCB, and ORO simultaneously
should be informed, although secrecy cannot be guaranteed absent a legal
prohibition on dissemination.
3. QUALITY REVIEW OF DECISIONS.
a. Pre-Issuance Review. Each ID written by an AJ at the GS-14 grade level or below
must be reviewed prior to issuance by the CAJ (or designee). IDs written by GS-15
AJs in complex cases must be reviewed prior to issuance by the CAJ (or designee).
Other IDs written by GS-15 AJs must be reviewed post-issuance. In addition,
Insta-Cite of citations contained in the ID must be completed in accordance with the
policy of the RD.
b. Erratum Notices. After an ID is issued, an AJ’s authority to alter the decision is
severely circumscribed. The Board’s regulation at 5 C.F.R. § 1201.112 specifies that
an AJ retains jurisdiction only to (1) correct the transcript; (2) rule on a request by
the appellant for attorney fees, consequential damages, or compensatory damages;
(3) process a petition for enforcement; and (4) vacate an initial decision before it
becomes final in order to accept a settlement agreement into the record. However,
an AJ may correct a nonsubstantive mistake, one that is simply editorial in nature,
by issuance of an Erratum notice. A few examples of such mistakes include: a
misspelling of the appellant’s name or other mistake in the caption (e.g., a wrong
docket number); an incorrect case citation; the omission of a word; a mathematical
miscalculation; a misstatement of the nature of the action or of the penalty imposed;
a wrong or missing closing paragraph; or an incorrectly computed finality date.
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The regulation provides that the AJ’s authority to take the four specified actions
does not affect the finality of the ID or the PFR filing period. Nevertheless, if the AJ
believes that the correction might be cause for the appellant to file a PFR (e.g., a
$50,000.00 payment was corrected to read $50.00, or that the insertion of the word
“no” made a significant outcome difference, etc.), then it should be brought to the
appellant’s attention that the Erratum notice might be good cause for a late PFR
filing or amendment.
4. DISTRIBUTION OF DECISIONS. .
a. To Interested Parties. Copies of the decision must be mailed—or e-mailed to
e-filers—to the following:
(1) Appellant;
(2) Appellant’s Representative;
(3) Agency’s Representative;
(4) Intervenors; and
(5) OPM. Electronic copies of IDs will be made available to OPM on the Board’s
Extranet list serv.
b. To MSPB Headquarters. AJs must save the ID in the Document Management System
(DMS) so that it can be distributed electronically both within and outside of the Board
by OCB. AJs are responsible for proper distribution of the ID to the parties. OCB is
responsible for proper distribution of the ID to all other entities as required (e.g.,
OPM, OSC, etc.). An issuance date should not be filled in until the ID is, indeed,
ready for issuance, to avoid premature release of a document that may be changed
before issuance.
c. Certification of Service. Each ID must be accompanied by the appropriate
standardized certificate of service. The certificate will contain each party’s postal
mailing address but must indicate the method by which service was actually
accomplished, i.e., Regular Mail, Electronic Mail, etc.
d. Federal Circuit Notice. The Clerk of the U.S. Court of Appeals for the Federal Circuit
has prepared notices that must be served with every ID on appellants who appeared
pro se before the Board.
5. BENCH DECISIONS.
a. The AJ’s hearing order or other notice will have put the parties on notice that the AJ
may issue a bench decision at the conclusion of the hearing, and that either party
may request such a decision. In addition, the Board has held that when an appellant
moves for judgment at the close of the agency’s presentation of its case-in-chief, the
AJ must decide the motion on the basis of whether the action is supported by the
requisite degree of proof. In making this ruling, the AJ should carefully consider the
weight and credibility of the agency’s evidence and must consider whether the
agency has established an unimpeached prima facie case in its case-in-chief. If the
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AJ determines that the agency has made such a showing, the appellant’s motion
must be denied. See McKenzie v. Department of the Interior
, 16 M.S.P.R. 397,
vacated on other grounds, 18 M.S.P.R. 377, 380 (1983). If the AJ grants the
motion, the AJ is still required to announce his or her findings and conclusions,
sufficient to comply with the requirements of Spithaler, and the following
subparagraphs covering bench decisions. Further, because it is the appellant who
has the burden of proof on his or her affirmative defenses, in a case where such
defenses have been raised and not withdrawn, the case cannot end after the
agency’s presentation.
b. At the close of the hearing, if the issues have been clearly delineated and addressed,
and the AJ is confident he or she can decide them without further review of the
record, the AJ may announce his or her findings and conclusions in a bench decision.
(1) Guidance on Types of Cases Appropriate for Bench Decisions. The following are
general guidelines. The AJ has discretion to issue a bench decision outside of
these guidelines if other factors justify it.
(a) Types of cases or situations in which an AJ might consider issuing a
bench decision.
(i) When the parties have stipulated to the basic facts and/or charges;
(ii) When only penalty issues are involved;
(iii) Certain jurisdictional cases, such as last-chance agreement questions;
(iv) RIF cases where there is little factual dispute, such as a simple
competitive level disagreement; and
(v) Legal retirement issues (i.e., any retirement case except those involving
disability or overpayment).
(b) Cases generally not appropriate for bench decisions:
(i) IRA appeals and “otherwise appealable action” cases;
(ii) Cases with discrimination issues;
(iii) Complex adverse actions; and
(iv) Chapter 43 appeals (performance cases).
(2) Communication of and Issuance Date of the Bench Decision. The bench decision
will be communicated to the parties at the conclusion of the hearing and
transcribed by a court reporter. The official issuance of a written decision will
take place from 1 to 3 work days after the hearing, which is the approximate
time it will take to receive a partial transcript (see subparagraph (3)(c) below)
from the court reporter. The AJ may make editorial changes to the bench
decision before its issuance, and the revised transcript will then be part of the
official record. The official date of the bench decision will be the date placed on
the bench decision before it is mailed, generally the date on which it is served on
the parties by mail.
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(3) Format and Content of Bench Decisions. Bench decisions must comply with the
requirements of the Board’s ID regulation, 5 C.F.R. § 1201.111. To meet the
criteria for the perfection of the record, a written bench decision must include
the following:
(a) a clear statement that the AJ is issuing an ID and including: a summary of
issues; an explanation of reasons for the AJ’s findings and conclusions,
including interim relief, if applicable; and a statement of the finality date. The
document will include a caption and parties list, which are standard for
Board decisions.
(b) a complete statement of standard appeal rights;
(c) reference to an “attached” transcript of the decision. For documentation
purposes, the AJ need request only that part of the hearing transcript that
constitutes the decision. In the case of a telephonic hearing held without
benefit of a court reporter, the AJ can either transcribe the decision or send
the tape to a court reporter for transcription. When desirable (e.g., the
decision is very brief), the AJ may document the decision language directly in
the written document in lieu of attaching a partial transcript. Templates for
both types of decisions are available to all AJs.
(d) as with other types of decisions, copies of PFR guidance and pro se guidance
issued by the U.S. Court of Appeals for the Federal Circuit will be mailed with
the decision.
(4) Quality Review of Bench Decisions. Review criteria for bench decisions, both pre-
and post-issuance, are the same as for other types of decisions. The CAJs in
each RO/FO will establish local procedures that satisfy this requirement.
(5) Administrative Considerations.
(a) Case Tracking–Bench Decisions. During close-out of the bench decision, the
case tracker will be required to answer the following question: Is this a
Bench Decision? (Y or N). This will be sufficient for tracking these cases.
(b) DMS Decision Copy. Bench decisions will have some form of documentation
(see (3)(c) above) that transmits the decision and/or transcript. This
documentation must be placed in DMS with other decisions.
6. RULES OF CITATION.
An AJ generally must follow the “Blue Book” rules of citation, except when citing those
Board decisions that contain paragraph numbers by including those numbers rather than the
pages on which they appear. Board policy is that nonprecedential Final Orders and Remand
Orders, IDs, and unpublished court opinions are not precedential. The Federal Circuit’s
nonprecedential decisions may be cited for their persuasive authority. Brief orders that
summarily deny the petition but also summarily rule on timeliness questions or pending
motions also are not precedential. Accordingly, these decisions and opinions generally
should not be cited as authority in an ID. However, an AJ may cite to and follow a Board
nonprecedential decision, as the Board cites to the Federal Circuit’s nonprecedential
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decisions, if the AJ finds its analysis persuasive. An AJ may not cite as controlling cases
when a majority of the Board does not vote to adopt the analysis of an O&O.
7. STYLE.
The AJ must maintain a dignified, judicial tone in the decision and avoid ad hominem
attacks on any persons discussed in the ID.
8. SANITIZATION OF INITIAL DECISIONS.
a. Generally. Sanitization of IDs when public disclosure would endanger the privacy of
persons named in the decision may be done at the request of a party, at the request
of the persons named or their representatives, or at the discretion of the AJ.
FOIA authorizes an agency, “to the extent required to prevent a clearly unwarranted
invasion of personal privacy,” to delete or sanitize identifying details from agency
opinions made available to the public.
5 U.S.C. § 552(a)(2).
Generally, greater privacy interests are considered to attach to third parties named
in Board decisions than to appellants. This is because appellants waive some of their
interest in privacy by appealing to the Board. Appellants’ identities should also be
sanitized, however, in cases where disclosure of the appellant’s identity poses a
danger to the appellant, other persons, or governmental interests.
A “clearly unwarranted” invasion of the personal privacy of a third party would tend
to exist when the decision reveals intimate personal details concerning the private
life of the third party. Certain kinds of cases, particularly off-duty misconduct cases,
may require sanitization of third-party identifying information. The kinds of cases in
which AJs and CAJs should be especially alert to the possibility of sanitization include
those in which the underlying facts relate or refer to:
- Allegedly criminal behavior;
- Alcohol or drug abuse;
- Mental illness;
- Personal finances; or
- Sexual behavior
This does not mean that a case involving any of the above kinds of privacy-sensitive
facts automatically requires sanitization. Neither does it mean that the need for
sanitization could not arise in other types of privacy-sensitive cases. Rather, the
above list is intended to provide a sense of the kinds of intimate facts or details from
a person’s private life the revelation of which in a decision should trigger the
consideration of sanitization.
b. Method of Analysis. The decision whether to sanitize involves the two-step analysis
underlying the application of FOIA Exemption 6 (privacy). 5 U.S.C. § 552(b)(6). In
summary, this analysis requires: (1) determining there is a strong possibility that
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the use of the third party’s name would constitute an invasion of a protectable
privacy interest; and (2) balancing the individual privacy concerns and the public
interest in disclosure of the third party’s identity. This two-step analysis is similar to
the analysis used in ruling on motions by an appellant to proceed anonymously in his
or her appeal before the Board. See chapter 2, section 5, subparagraph c(3).
c. Alternatives to Sanitizing. The necessity for sanitizing the identity of a third party in
a decision is eliminated if the AJ, in drafting the decision, recognizes the sensitivity of
the material involved in the case and identifies the third party as “Mr. A.,” “Ms. A,”
“Witness A,” etc. It must remain clear to the parties and reviewers who is
represented by such designations. This is an effective and efficient approach and
should be used when appropriate. Often use of the person’s initials or job title is
appropriate when considering comparator evidence on penalty, or referring to a
witness or fellow-employee of the appellant.
9. CLOSING AND CODING CASES.
When cases are closed, it is important for the accuracy of Board records to assure that all
issues are properly accounted for and that their correct disposition is recorded. The CMS
Users Guide contains the definitive list of closing codes and actions. While paralegals do the
majority of the entries into DMS, it is the AJ who is mainly responsible for the accuracy of
the information that goes into CMS because the AJ is more familiar with the issues that
were raised, abandoned, and decided, and with the nature of the decision on all issues in
the case. Board records are largely the basis for its Annual Reports as well as its Annual
Performance Reports, and for the information Congress seeks, either when it drafts a
statute (such as the WPEA, which requires that certain statistical information be tracked) or
when it more informally makes information requests of the agency. Other agencies, such as
the Government Accountability Office, have often made requests for information that
require reliance on CMS as well. Therefore, AJs must invest the time and thought necessary
to allow for the correct tracking of the disposition of every case and each issue in it.
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CHAPTER 13 - ADDENDUM DECISIONS
1. GENERAL.
In general, the requirements of chapter 12 apply to addendum decisions. Special
requirements for addendum decisions are set forth in this chapter.
2. ATTORNEY FEES.
See 5 C.F.R. §§ 1201.201-.203; 1201.205
.
a. Who May File. While anyone may file a motion for attorney fees, an award may not
be granted to an agency. See Lewis v. Department of the Army, 31 M.S.P.R. 476
(1986). Under 5 U.S.C. § 7701, the appellant must be the prevailing party and must
have had an attorney-client relationship with his or her representative to receive an
award of attorney fees, but may recover attorney fees for consultation with an
attorney who was not eventually hired, even as to proceedings that preceded the
appeal to the Board. See
Mudrich v. Department of Agriculture, 92 M.S.P.R. 413
(2002) (“[t]he cardinal point in establishing an attorney-client relationship is in the
client’s belief that he is consulting a lawyer in that capacity and his manifested
intention to seek professional legal advice”). In all but WPA/WPEA appeals, the
payment itself must be made to the attorney, not the appellant.
Bonggat v.
Department of the Navy, 59 M.S.P.R. 175 (1993); it is the appellant who is entitled
to the fees in whistleblower appeals under 5 U.S.C. § 1221. Rumsey v. Department
of Justice, 123 M.S.P.R. 502, ¶¶ 7-8 (2016), rev’d on other grounds, Rumsey v.
Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017).
Representation by a non–lawyer does not meet the requirement of an attorney-client
relationship. However, expenses personally incurred by an appellant can be awarded
under
5 U.S.C. §§ 1221(g) and 7701(g)(2). See Bonggat, supra; Chin v.
Department of the Treasury, 55 M.S.P.R. 84 (1992).
b. Time and Place of Filing. A request for payment of attorney fees will be decided in
an addendum proceeding before an AJ after issuance of a final decision in the
proceeding on the merits, including a decision accepting the parties’ settlement of
the case. See
5 C.F.R. § 1201.203(b). The request must be filed as soon as
possible after a final decision of the Board but no later than 60 days after the date on
which a decision becomes final. See
5 C.F.R. § 1201.203(d). Usually, a request for
attorney fees must be filed with the same RO or FO that issued the decision on the
merits of the case. When the initial or only decision in the proceeding on the merits
was issued by the Board or an AJ at headquarters, the request must be filed with
OCB. See
5 C.F.R. § 1201.203(c).
c. Form and Content of Request. A request for payment of attorney fees must be made
by motion, must state why the appellant or respondent believes he or she is entitled
to an award under the applicable statutory standard, and must be supported by
evidence substantiating the amount of the request. See
5 C.F.R. § 1201.203(a).
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d. Applicable Law and Exceptions. The Board early on established the law with respect
to prevailing party, interest of justice, and reasonableness, and little of that has
changed concerning appeals under
section 7701, where attorney fees may be
awarded under subsection 7701(g)(1). However, several exceptions to the general
§ 7701 rules are detailed below.
USERRA: Regarding appeals brought under USERRA, see chapter 18 of this
Handbook, the Board and the court have held that it is not section 7701 that
provides the authority for an attorney fees award. Rather, it is USERRA itself, which
states at
38 U.S.C. § 4324(c)(4), “If the Board determines as a result of a hearing or
adjudication conducted pursuant to a complaint submitted by a person directly to the
Board … that such person is entitled to an order [to comply with the law and
compensate the employee for any loss of wages or benefits], the Board may, in its
discretion, award such person reasonable attorney fees, expert witness fees, and
other litigation expenses.” Thus, the rules concerning prevailing party and interest
of justice do not apply to USERRA attorney fee requests. See Jacobsen v.
Department of Justice, 500 F.3d 1376 (Fed. Cir. 2007), stating that “Congress left
the decision whether to award reasonable attorney fees, expert witness fees, and
other litigation expenses to the Board’s discretion.” Accordingly, the court affirmed
the Board’s reliance on the appellant’s limited degree of success to deny a fee award.
While Jacobsen and similar Board cases have all been based on Butterbaugh-type
appeals (involving improper charges for military leave), neither the Board nor the
Federal Circuit has indicated that the rule would differ under another provision of
USERRA or as to a different section 4311(a) appeal. Neither the Board nor the court
has issued any precedential attorney fees cases under other provisions of VEOA.
WPA/WPEA: As noted above, appeals finding whistleblower retaliation are also
subject to different rules, so that there is no interest of justice requirement to be
met in such cases, and the appellant is the one entitled to the award. See
Rumsey v. Department of Justice, 123 M.S.P.R. 502, ¶¶ 7-8 (2016), rev’d on other
grounds, Rumsey v. Department of Justice, 866 F.3d 1375 (Fed. Cir. 2017).
Discrimination: Under 5 U.S.C. § 7701(g)(2), “[i]f an employee or applicant for
employment is the prevailing party and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of ... title [V], the payment of
attorney fees shall be in accordance with the standards prescribed of section 706(k)
of the Civil Rights Act of 1964 (
42 U.S.C. 2000e-5(k)).” Therefore, in mixed cases,
when the appellant is the prevailing party by a finding of discrimination or reprisal in
violation of
5 U.S.C. 2302(b)(1), the entirety of the substantive law developed under
subsection (g)(1) also does not apply.
Rescission: One issue that often arises in connection with attorney fee requests is
the effect of the agency’s cancellation of the action prior to adjudication. When the
agency fully cancels and restores the appellant to the status quo ante, resulting in
the dismissal of the merits appeal as moot, the appellant may not be awarded
attorney fees. The “catalyst theory” that previously allowed for an award in such
circumstances is no longer valid. Buckhannon Board and Care Home, Inc. v.
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West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001);
Sacco v. Department of Justice
, 90 M.S.P.R. 225 (2001). Because the appellant
does not qualify as a prevailing party, attorney fees may not be granted. That is not
true, however, when the parties have settled the case. There, the appellant is a
“prevailing party” eligible for an award of attorney fees, where he obtained
enforceable relief through settlement agreement.
Griffith v. Department of
Agriculture, 96 M.S.P.R. 251 (2004). In most cases, however, the parties will also
settle the attorney fees question, and an agreement that specifies that additional
fees will not be paid controls.
Enforcement: Similarly, an appellant is the prevailing party on PFE even if the
agency eventually complies, based on “the Board’s oversight of the parties’
compliance efforts.” Mynard v. Office of Personnel Management, 108 M.S.P.R. 58
(2008). It reasoned that in a PFE AJs have the authority to oversee the parties’
efforts to secure compliance, and the Board has express authority to order corrective
action when a party has not complied, so that “the Board’s oversight of the parties’
compliance efforts provides the PFE process with sufficient Board imprimatur to allow
an appellant to qualify as a ‘prevailing party’ under 5 U.S.C. § 7701(g)(1) even in
the absence of a Board order finding the agency in noncompliance or an agreement
executed by the parties to settle compliance matters.” Id.
3. PROCESSING MOTIONS FOR ATTORNEY FEES.
a. Acknowledgment Order. The standard acknowledgment order (ACKFEE) must be
sent to the parties within 3 workdays of receipt of a motion for attorney fees. The
Order may have to be modified to cover any of the above-mentioned types of cases
if no separate order appears in HotDocs.
b. Discovery and Hearing. Generally discovery is not granted and a hearing is not held
on a motion for attorney fees. However, it is within the AJ’s discretion to allow both.
Because, as discussed in section d below, the Board does not reconsider the merits
of the underlying appeal during an attorney fees proceeding, any discovery or
hearing would, of necessity, be limited to addressing issues specific to the fee claim
and not to the merits, such as proof of counsel’s hourly rate, community rate, etc.
c. Settlement. The Board’s policy is to encourage the settlement of attorney
fees disputes.
d. Decision. The decision on a fee petition should be made by the AJ who wrote the
merits ID, even if the final decision of the Board reversed or modified the outcome
the AJ reached. In any event, though, the findings in the final decision must not be
revised or second-guessed when ruling on the fee petition. See, e.g.,
Gensburg v.
Department of Veterans Affairs, 80 M.S.P.R. 187 (1998); Capeless v. Department of
Veterans Affairs, 78 M.S.P.R. 619 (1998). Before disallowing fees or costs that
are not adequately explained, the AJ must notify the appellant of the AJ’s intention
to do so and provide a fair opportunity to address the deficiencies. Wilson v.
Department of Health & Human Services, 834 F.2d 1011 (Fed. Cir. 1987). Further,
while the Board may award fees for the proceedings before it, it lacks authority to
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award them for Federal Circuit or other judicial appeals. See Manley v. Department
of the Air Force, 78 M.S.P.R. 673 (1998). The Equal Access to Justice Act, 28 U.S.C.
§ 2412, is inapplicable to attorney fee proceedings before the Board.
4. COMPLIANCE.
See 5 C.F.R. §§ 1201.181-.183
.
a. Petition for Enforcement. Any party may petition the Board for enforcement of a
final decision or order issued under the Board’s appellate jurisdiction, or for
enforcement of a provision within a settlement agreement that was entered into the
record for enforcement purposes in an order or decision under the Board’s appellate
jurisdiction, by filing the petition with the RO or FO that issued the ID. See
5 C.F.R.
§ 1201.182(a). A party may also file a PFE seeking rescission of a settlement
agreement upon a finding of material breach. Any party seeking enforcement of a
final Board decision or order issued under the Board’s original jurisdiction, or for
enforcement of a provision within a settlement agreement that was entered into the
record for enforcement purposes in an order or decision under the Board’s original
jurisdiction, may file a petition with OCB. See
5 C.F.R. § 1201.182(b). In addition,
an employee who is not a party but is aggrieved by any other employee’s failure to
comply with a Board order may file a PFE if granted the status of a permissive
intervenor. See
5 C.F.R. § 1201.182(c).
PFEs of interim relief are not to be docketed as compliance cases; rather, they are to
be referred to OCB for treatment as part of the PFR process. See
Ginocchi v.
Department of the Treasury, 53 M.S.P.R. 62 (1992).
The PFE must specify reasons why the petitioning party believes there is
noncompliance and must include the date and results of any communications
between the parties regarding compliance. A copy of the PFE must be served on the
other party or that party’s representative. The agency does not have the burden of
showing compliance with a Board order until after a PFE has been filed.
b. Time Limits for Filing. The petition must be filed promptly with the RO or FO that
issued the ID, and if it is filed more than 30 days after the date of service of the
agency’s notice that it has complied, the PFE must contain a statement and evidence
showing good cause for the delay and a request for an extension of time for filing.
See
5 C.F.R. § 1201.182(a). Determining timeliness differs when the issue is
compliance with a settlement agreement, rather than with a Board-ordered
determination. Where there has been a settlement, because the Board does not
direct the parties to inform each other of the date on which they have complied, the
issue is whether the PFE was filed within a reasonable time of the alleged breach.
Chudson v. Environmental Protection Agency, 71 M.S.P.R. 115 (1996), aff’d,
132 F.3d 54 (Fed. Cir. 1997) (Table).
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5. PROCESSING PETITIONS FOR ENFORCEMENT.
a. Acknowledgment Order. The appropriate standard acknowledgment order
(ACKCOMA or ACKCOMB) must be sent to the parties within 3 workdays of receipt of
the PFE. If the agency is the alleged noncomplying party, it must submit the name,
title, grade, and address of the agency official charged with complying with the
Board’s order. 5 C.F.R. § 1201.183(a)(2). The agency must inform this official in
writing of the potential sanction for noncompliance as set forth in 5 U.S.C.
§ 1204(a)(2) and (e)(2)(A) even if the agency is asserting that it has fully complied.
Id. The agency must advise the Board of any change to the identity or location of
this official during the course of any compliance proceeding. Absent this information,
the Board will presume that the agency official responsible for compliance and all of
the consequences thereof is the highest ranking, appropriate agency official who
is not appointed by the President with the consent of the Senate. Id. Either the CAJ
or an AJ may adjudicate a PFE.
When an appellant files a PFE seeking compliance with a Board order, the agency
generally has the burden to prove its compliance with the Board’s order by a
preponderance of the evidence. 5 C.F.R. § 1201.183(d). Any party filing a PFE
seeking compliance with terms of a settlement agreement, or its rescission, has the
burden of proving the other party’s breach of the agreement by a preponderance of
the evidence. Id. The acknowledgment order clarifies that the parties have a right
to discovery on PFE, so AJs must provide time for discovery when requested and
must rule on any disputes that arise and cannot be resolved by the parties, as would
be true in a merits proceeding. Cases holding to the contrary have been overruled
by 5 C.F.R. § 1201.183(a)(9), which allows discovery but requires that it be initiated
within a shortened time compared to discovery in a merits appeal.
b. Hearing. Although a hearing is not required, it remains within the AJ’s discretion to
grant. A hearing is highly recommended in cases involving issues of credibility.
c. Settlement. The Board’s policy is to encourage the settlement of
compliance disputes.
d. Initial Decision Finding Compliance. When the AJ finds that the agency is in
compliance or is making a good faith effort to take all actions required to be in
compliance with the final decision, the AJ will issue an ID finding compliance or
essential compliance. This ID is treated like other IDs, and becomes final 35 days
after issuance unless a party files a PFR with the Board. As is true with attorney fee
petitions, the Board does not reconsider the merits of an appeal in a compliance
proceeding. See
Coffey v. U.S. Postal Service, 86 M.S.P.R. 632 (2000).
e. Initial Decision Finding Full or Partial Noncompliance. Unlike earlier versions of the
process for deciding compliance matters, the AJ will issue an ID whether the ultimate
finding is compliance or noncompliance. If the AJ finds that the agency has not
made a good faith effort to comply in whole or in part and is not in full compliance
with the final decision, the ID must resolve all issues raised in the PFE and identify
the specific actions the noncomplying party must take to be in compliance with the
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Board’s final decision. 5 C.F.R. § 1201.183(a)(5). In addition to the standard
service copies on the appropriate parties and/or their representatives, a copy of this
ID must be served on the agency official charged with complying with the Board’s
order under 5 C.F.R. § 1201.183(a)(5). The ID finding noncompliance must also
advise the parties that proof of compliance with the ID must be submitted to OCB
within the time limit for filing a PFR under 5 C.F.R. § 1201.114(e), to the extent the
party decides to take the actions required in the ID. 5 C.F.R. § 1201.183(a)(6)(i).
To the extent the party decides not to take all of the actions required by the ID, the
party must file a PFR pursuant to 5 C.F.R. §§ 1201.114-115. The complying party
may file evidence and argument in response to any submission described in 5 C.F.R.
§ 1201.183(a)(6) by filing opposing evidence and argument with OCB within 20 days
of the date such submission is filed. 5 C.F.R. § 1201.183(a)(8).
The file, along with all other files related to the appeal, must be forwarded to OGC
within 3 workdays of the date the ID is issued.
6. CONSEQUENTIAL, LIQUIDATED, AND COMPENSATORY DAMAGES.
See 5 C.F.R. §§ 1201.201-.202; 1201.204
-.205.
a. Time for Making Request. A request for damages should be made as early as
possible in the proceeding on the merits, no later than the conferences held to define
the issues in the case, subject to the AJ’s authority to waive untimeliness for good
cause shown. The Board may also waive the time limit for good cause shown when a
request is made for the first time on PFR of a merits decision. In such a case, or
where there has been no prior proceeding before an AJ, it may send the case to an
AJ for adjudication. See
5 C.F.R. § 1201.204(a), (h).
b. Merits Proceeding or Addendum Proceeding. Because AJs may waive the application
of any Board regulation not required by law, the AJ or the Board may consider and
rule on the request in the decision on the merits, if such action is in the interest of
the parties and will promote efficiency and economy in adjudication. Normally,
however, the AJ or the Board will defer a decision on the request for an addendum
proceeding. See
5 C.F.R. § 1201.204(d), (h)(1).
7. PROCESSING REQUESTS FOR DAMAGES.
a. Addendum Proceedings. If the AJ defers a decision on a request for consequential,
liquidated, or compensatory damages for an addendum proceeding as described
above in section 6b, the AJ will schedule the proceeding after issuance of an initial
decision that becomes final or a final Board decision. It is within the AJ’s discretion
to allow discovery during the processing of the damages proceeding (although, as
noted above, there is a right to appropriate discovery in a compliance proceeding).
b. Hearing. The AJ may hold a hearing on a request for consequential, liquidated, or
compensatory damages and may apply appropriate provisions of 5 C.F.R. subpart B
to the addendum proceeding. See
5 C.F.R. § 1201.204(f).
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c. Settlement. The Board’s policy is to encourage the settlement of disputes involving
legal damages.
d. Authority. The Board has addressed the limits of its authority regarding requests for
damages under certain circumstances. For compensatory damages, the Board’s
earliest and still lead decision is
Markiewicz-Sloan v. U.S. Postal Service, 77 M.S.P.R.
58 (1997), which sets the basic rules applicable to such appeals; Calhoon v.
Department of the Treasury, 90 M.S.P.R. 375 (2001) (compensatory damages
are not available for disparate impact discrimination); Simonton v. U.S. Postal
Service, 85 M.S.P.R. 189 (2000) (compensatory damages are not available for age
discrimination or EEO-based retaliation); Phillips v. Department of the Air Force,
84 M.S.P.R. 580 (1999) (compensatory damages are not available for a PFE of a
settlement agreement);
Spencer v. Department of the Navy, 82 M.S.P.R. 149 (1999)
(compensatory damages may not be awarded for disability discrimination based on
the failure to accommodate if the agency has made good faith efforts to
accommodate, but they are available for perceived discrimination because the
appellant needs no accommodation). See also Jones v. Department of the Army,
75 M.S.P.R. 115, 121-22 (1997)(neither compensatory damages nor back pay can
be awarded in cases in which a finding of mixed-motive discrimination has been
made and the agency has established that it would have taken the same action
absent the discriminatory motive); Garrison v. Department of the Navy, 88 M.S.P.R.
389, 392-93, ¶ 7 (2001) (in mixed-motive cases, if the agency proves that it would
have taken the same action in the absence of unlawful discrimination or reprisal, the
appellant is not entitled to reinstatement or back pay). The Board’s more recent
decision in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 48-51 (2015),
suggests the same result would obtain under the revised analysis of discrimination
claims it establishes.
An amount equal to back pay shall be awarded as liquidated damages under 5 U.S.C.
§ 3330c of VEOA when the Board or a court determines that an agency willfully
violated an appellant’s veterans’ preference rights. 5 C.F.R. §§ 1201.201(e) &
1201.202(d). A violation is “willful” if the agency either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by VEOA. Weed v.
Social Security Administration, 107 M.S.P.R. 142, ¶ 8 (2007). An award of liquidated
damages, therefore, may be made only if there is an entitlement to an award of back
pay, and “in calculating damages, the AJ “will make findings regarding several
outstanding issues, including when, if at all, the appellant would have been entitled
to grade, step and/or pay increases after the retroactive starting date. The [AJ] shall
also instruct the appellant to provide records of his income, if any, and his efforts to
obtain other employment during the relevant time period, as well as proof of any
relevant expenses that should be offset in an award of lost wages or benefits.”
Williams v. Department of the Air Force, 116 M.S.P.R. 245, ¶ 18 (2011). Note,
however, that “lost wages or benefits” has since been interpreted to mean lost
wages and benefits. See Weed v. Social Security Administration, 124 M.S.P.R. 171,
¶ 14 (2016).
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As for consequential damages, see, e.g., Bohac v. Department of Agriculture,
239 F.3d 1334 (Fed. Cir. 2001) (nonpecuniary damages, such as for pain and
suffering, may not be awarded under the WPA and instead are limited to
out-of-pocket costs); Reams v. Department of the Treasury
, 91 M.S.P.R. 447 (2002)
(consequential damages do not extend to reimbursing the appellant for annual leave
he or she used in prosecuting the appeal under the WPA);
Pastor v. Department of
Veterans Affairs, 87 M.S.P.R. 609 (2001) (consequential damages include not just
medical expenses that the appellant has already incurred, but also future medical
expenses that can be proven with reasonable certainty). For a review of several
types of losses that may or may not be awarded as consequential damages, see
King v. Department of the Air Force, 122 M.S.P.R. 531, ¶¶ 8-14 (2015).
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CHAPTER 14 - EX PARTE COMMUNICATIONS
1. GENERAL.
See 5 C.F.R. §§ 1201.101
-.103.
a. Definition of Ex Parte Communication. Ex parte communications are oral or written
communications between decision-making officials of the Board and an interested
party to a proceeding, made without providing the other parties a chance to
participate. Not all ex parte communications are prohibited, only those that involve
the merits of the case or those that violate other rulings requiring submissions to be
in writing.
Interested parties may make inquiries about such matters as the status of a case,
when it will be heard, and the method for transmitting evidence to the Board.
Inquiries about the availability of witnesses also are not prohibited. See
Stec v.
Office of Personnel Management, 22 M.S.P.R. 213 (1984). Parties may not inquire
about such matters as what defense they should use or whether their evidence is
adequate, and the parties may not make a submission orally that is required to be in
writing. Thus, if a party calls to ask for a postponement or continuance, the AJ
should not rule on the request or participate in a discussion beyond informing the
party that such a request should be in the form of a written motion. See
5 C.F.R.
§ 1201.55, requiring motions for postponements to be in writing and to be preceded
by contact with the other party to determine if there is an objection.
b. Interested Party. The term interested party includes the following:
(1) Any party or representative of a party involved in a proceeding before the
Board; or
(2) Any other person who might be affected by the outcome of a proceeding before
the Board.
Note: A Member of Congress or a Congressional staff person who attempts to
discuss at length the merits of a constituent’s appeal pending with the Board
and/or engages in intense advocacy on the constituent’s behalf may be
considered an interested party. The contact should then be treated as an
ex parte communication in accordance with section 3 of this chapter. The CAJ
may wish to contact the Congressional Member’s office to determine whether the
Member intends to act as a representative in the appeal.
c. Decision-making Official. Pursuant to 5 C.F.R. § 1201.101(b)(2)
, a “decision-making
official” is “any judge, officer, or other employee of the Board designated to hear and
decide cases except when such judge, officer, or other employee of the Board is
serving as a mediator or settlement judge who is not the adjudicating judge.”
2. SPECIFIC PROHIBITIONS/APPROVALS.
a. Time period. Ex parte communications concerning the merits of any matter before
the Board for adjudication or that otherwise violate rules requiring written
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submissions are prohibited from the time the persons involved have knowledge that
the matter may be considered by the Board until the Board has rendered a final
decision. See 5 C.F.R. § 1201.102
.
b. Examples. Certain communications with Board decision-making officials have been
ruled not to be prohibited ex parte communications. In this category are discussions
between two AJs hearing two separate appeals filed by the same appellant,
Edwards
v. Department of Justice, 87 M.S.P.R. 518 (2001); the reports of a psychologist and
psychiatrist to the AJ concerning the appellant’s mental condition during the course
of the appeal of a removal for medical disqualification, Wyse v. Department of
Transportation, 39 M.S.P.R. 85 (1988); contacts between the AJ and the appellant’s
Congressional representative that did not involve the merits and were not required to
be in writing,
Lynch v. Department of Justice, 32 M.S.P.R. 33 (1986); and legal
memoranda sent by the Board’s OGC to the AJ addressing the penalty in an adverse
action appeal,
Eng v. Department of Transportation, 18 M.S.P.R. 220 (1983). In
each of these decisions, the Board found no violation because the communication
with the AJ was not by an “interested party” in the appeal. The Board has also found
that while the parties’ waiver of the rule against prohibited ex parte communications
will allow settlement negotiations to occur outside the presence of all parties, absent
such a waiver, a settlement discussion with an appellant without the presence of his
own representative and that of the agency is prohibited.
Young v. Department of
Veterans Affairs, 83 M.S.P.R. 187 (1999).
c. Test. In each instance when a prohibited ex parte communication occurred, the
Board has, of course, required that the communication be made a matter of record in
accordance with its regulations, see below, but the ultimate test as to whether the
communication required any additional proceedings or corrective action has been to
determine whether the appellant’s substantive rights have been prejudiced. If they
were not, placement in the record constitutes the appropriate corrective action.
3. PLACEMENT IN THE RECORD/SANCTIONS.
a. Requirement of Placement in Record. Any communication made in violation of the
rule against prohibited ex parte communications must be made a part of the record
and an opportunity for rebuttal allowed. If the communication was oral, a
memorandum stating the substance of the discussion must be placed in the record.
b. Notice of Violation. The AJ or OCB, as appropriate, will give the parties written
notification that the regulation has been violated and 10 calendar days to file
a response.
c. Sanctions. The following sanctions are available:
(1) Parties. The offending party may be required to show cause why, in the interest
of justice, his/her claim, interest or motion should not be dismissed, denied, or
otherwise adversely affected.
(2) Board Personnel. Offending Board personnel will be treated in accordance with
the Board’s standards of conduct.
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(3) Other Persons. The Board may invoke such sanctions against offending parties,
if warranted. .
4. AVOIDANCE OF PROHIBITED EX PARTE COMMUNICATIONS.
a. AJ’s Responsibility. When contacted by an interested party, an AJ cannot anticipate
what questions may be asked or what information may be presented during the
conversation. This does not, however, alter the nature of the ex parte contact once
prohibited information has been communicated, nor does it relieve the AJ of the
responsibility of controlling the conversation and ensuring compliance with the
Board’s regulations.
b. Waiver of the Rule against Prohibited Ex Parte Communications. The parties may
agree to waive the rule against prohibited ex parte communications in order to
obtain the AJ’s active involvement in the settlement process. This is permissible. Of
course, such an agreement should be documented. A party may also waive the
prohibition by not taking part in a scheduled teleconference as provided, for
example, in the HotDocs document HEAROPM.
5. DUE PROCESS GUARANTEE AT THE AGENCY LEVEL.
A body of case law exists that addresses ex parte communications at the agency level prior
to the decision on a personnel action. See, e.g., Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368 (Fed. Cir. 1999); Sullivan v. Department of the Navy, 720 F.2d
1266 (Fed. Cir. 1983); Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011);
Lopes v. Department of the Navy, 116 M.S.P.R. 470 (2011). Consistent with these
decisions, sometimes the Board or the court may find that a due process denial resulted
from an ex parte communication on the merits that was not reflected in the charges. Such
case law, however, is not directly applicable to an ex parte communication with a Board
official during the appeal stage, which is the subject of this chapter. Board case law on
ex parte communications with its officials has not addressed the extent to which the court’s
decisions may be applicable by analogy.
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CHAPTER 15 - WHISTLEBLOWER APPEALS
1. GENERAL.
A whistleblower appeal involves claim(s) under 5 U.S.C. § 2302
(b)(8) that a personnel
action was threatened, proposed, taken, or not taken as a result of any disclosure of
information that is reasonably believed to evidence a violation of law, rule, or regulation or
to evidence gross mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety. See relevant statutory and
regulatory provisions at 5 U.S.C.A. §§ 1201 note; 1211-1219; 1221-1222; 2302 (West
Supp. 1992);
5 C.F.R. part 1209. As discussed more specifically below, under the WPEA
certain activities, not just disclosures, are also protected.
The procedures for processing whistleblower appeals are those set forth in 5 C.F.R.
part 1201, subparts A, B, C, E, F, and G and part 1209. Subpart H of part 1201 applies to
requests for attorney fees and consequential and compensatory damages arising from these
appeals. See
5 C.F.R. § 1209.3.
2. OTHERWISE APPEALABLE ACTION APPEALS.
See 5 C.F.R. § 1209.2
(b)(2). “Otherwise appealable action” appeals are those within the
Board’s regular appellate jurisdiction, as described in 5 C.F.R. § 1201.3, in which the
appellant raises an affirmative defense of retaliation for whistleblowing under 5 U.S.C.
§ 2302(b)(8) and now most of (b)(9) as well. No whistleblower or other affirmative
defense, however, may be raised in an appeal under VEOA or USERRA. It is not necessary
for an appellant in an OAA to first request corrective action from OSC. However, when an
appellant does first raise an OAA to the OSC before appealing to the Board, the Board will
find that if the choice was knowingly made, the appellant has elected his remedy. See
Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013). This constitutes a
statutorily-required change from prior law,
Massimino v. Department of Veterans Affairs,
58 M.S.P.R. 318 (1993), under which the Board treated the appeal as an OAA for purposes
of determining its scope of review. Massimino is no longer good law.
3. INDIVIDUAL RIGHT OF ACTION (IRA) APPEALS.
See 5 C.F.R. § 1209.2(b)(1)
. IRA appeals are an extension of the Board’s jurisdiction
pursuant to 5 U.S.C. § 1221(a). If the personnel action in question is not within the Board’s
regular appellate jurisdiction, the appellant must first seek corrective action from OSC
before appealing to the Board.
5 U.S.C. § 1214(a)(3); Knollenberg v. Merit Systems
Protection Board, 953 F.2d 623 (Fed. Cir. 1992). An appellant may not bring a different
allegation of whistleblowing before the Board than he or she brought before OSC. See
Ward v. Merit Systems Protection Board, 981 F.2d 521 (Fed. Cir. 1992).
4. ELECTION OF REMEDIES.
Under 5 U.S.C. § 7121
(g)(2), a person covered by a collective bargaining agreement who
claims to have been the victim of reprisal for whistleblowing may elect only one of three
remedies--a Board appeal of an OAA, a grievance, or a complaint to OSC. See
Thurman v.
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Department of Defense, 77 M.S.P.R. 598 (1998). If the action is not otherwise directly
appealable to the Board, the appellant must seek corrective action from OSC before
appealing to the Board. 5 C.F.R. § 1209.2(b)(1). Filing a complaint with OSC first will allow
the appellant to later file an IRA appeal with the Board under the time limits set forth below.
Filing a grievance or appeal first will foreclose any other avenue. See, e.g.,
Sabersky v.
Department of Justice, 91 M.S.P.R. 210, 213, ¶ 8 (2002) (an appellant who previously
appealed a removal action to the Board without raising an affirmative defense of
whistleblower retaliation and received a valid final judgment on the merits may not later file
an IRA appeal claiming that the removal was the result of such retaliation). In an IRA
appeal, the only merits issues before the Board are those listed in 5 U.S.C. § 1221(e), i.e.,
whether the appellant has demonstrated that one or more whistleblowing disclosures was a
contributing factor in one or more covered personnel actions and, if so, whether the agency
has demonstrated by clear and convincing evidence that it would have taken the same
personnel action(s) in the absence of the protected disclosures. 5 C.F.R. § 1209.2(c). In
an IRA appeal, the appellant is precluded from raising any other affirmative defenses, such
as claims of discrimination or harmful procedural error. Id. When taking an OAA, the
agency is required to advise employees of their options under 5 U.S.C. § 7121(g) and the
consequences of their election, including the fact that seeking corrective action from OSC
before filing with the Board will result in forgoing important rights to raise other affirmative
defenses. 5 C.F.R. § 1201.21.
The Board has held that the employee’s election of remedies must be “knowing and
informed.” Agoranos v. Department of Justice, 119 M.S.P.R. 498, 505-06 (2013) (finding
that elections under section 7121(d), (e) & (g) must be knowing and informed and
overruling Feiertag v. Department of the Army, 80 M.S.P.R. 264 (1998) “to the extent it
applied a different rule to all elections under § 7121(g)”). An employee’s decision based on
misinformation provided by the agency, whether intentionally, unintentionally, negligently,
inadvertently, or even innocently, is not binding on the employee as a matter of
fundamental fairness and due process. Covington v. Department of Health & Human
Services, 750 F.2d 937, 942 (Fed. Cir. 1984); Salazar v. Department of the Army,
115 M.S.P.R. 296, 301-02 (2010).
5. TIME LIMITS FOR APPEALING TO THE BOARD.
See 5 U.S.C. § 1214(
a)(3). The time limits for filing an OAA appeal with the Board are set
forth at 5 C.F.R. § 1201.22(b). However, if the appellant chooses to first seek corrective
action from OSC, the time limits are those set forth at 5 C.F.R. § 1209.5. The time limits
for filing an IRA appeal depend on the action taken by OSC. See 5 C.F.R. § 1209.5(a),
discussed below. The right to file an IRA appeal is not conditioned on an appellant’s
exhaustion of his or her EEO administrative remedies after filing a formal EEO complaint on
the underlying personnel action. See
Horton v. Department of the Navy, 47 M.S.P.R. 475
(1991). Thus, filing an IRA appeal before receiving a final agency decision on an EEO
complaint does not render the IRA appeal premature. The EEO issue may not be heard in
the IRA appeal.
a. Termination of OSC Investigation. The IRA appeal must be filed no later than
65 days after the date of issuance of the written notification by OSC to the appellant
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that its investigation has been terminated. 5 C.F.R. § 1209.5(a)(1). If the appellant
shows the OSC letter terminating its investigation into the allegations was received
by the appellant more than 5 days after the date of issuance, the appeal must be
filed within 60 days after the date the appellant received the OSC letter. In addition,
the filing deadline for IRA appeals is extended to the following business day for
deadlines that fall on the weekend or Federal holidays. See
Pry v. Department of the
Navy, 59 M.S.P.R. 440 (1993).
b. Equitable tolling. The Board cannot waive the statutory time limit for filing an IRA
appeal. See Wood v. Department of the Air Force, 54 M.S.P.R. 587 (1992).
However, the deadline for filing an IRA appeal with the Board may be subject to the
doctrine of equitable tolling, depending on the circumstances. 5 C.F.R. § 1209.5(b).
See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, (1990) (Federal courts
have typically extended equitable relief sparingly, including those situations where
the claimant has actively pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been induced or tricked by
his adversary’s misconduct into allowing the filing deadline to pass; it does not
extend to a claim of excusable neglect). Thus far, at least, the Board has cited only
the Irwin factors as possible bases for equitable tolling. See also Pacilli v.
Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 11 (2010). Equitable tolling
generally will not apply where there is a failure to exercise due diligence to preserve
one’s legal rights. Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶ 10 (2009).
c. Expiration of 120 Days. If the appellant has not received notification from OSC of
the termination of the investigation and 120 days have elapsed since he or she
sought corrective action from OSC, the appellant may file an appeal with the Board.
5 U.S.C. § 1214(a)(3)(B); 5 C.F.R. § 1209.5(a)(2). After the 120-day period has
expired, there is no limit to the time within which an appellant must file with the
Board while the investigation is pending with OSC. When the OSC investigation
concludes, the time limits in section 5(a) of this chapter apply.
See also chapter 16 concerning the time limits when a stay is requested.
6. ESTABLISHING JURISDICTION AND BURDENS AT HEARING.
An employee must occupy a covered position in a covered agency to bring a claim under the
WPA, as amended. For example, the U.S. Postal Service is not a covered agency. See
Booker v. Merit Systems Protection Board, 982 F.2d 517 (Fed. Cir. 1992), cert. denied,
510 U.S. 862 (1993); Mack v. U.S. Postal Service
, 48 M.S.P.R. 617 (1991). FBI Employees
cannot file an IRA appeal because their agency has specific procedures established for the
internal adjudication of whistleblower retaliation claims. Van Lancker v. Department of
Justice, 119 M.S.P.R. 514, ¶ 9 (2013). In that decision, the Board also held that an FBI
employee also may not raise an affirmative defense of whistleblower retaliation. Although
the Federal Circuit originally ruled, to the contrary, that FBI employees may raise an
affirmative defense of reprisal for whistleblowing on appeal of an OAA, Parkinson v.
Department of Justice, 815 F.3d 757 (Fed. Cir. 2016), the court’s later en banc decision
fully affirmed the Board’s rulings. Parkinson v. Department of Justice, 874 F.3d 710 (Fed.
Cir. 2017). There the court held that the Board may not hear a whistleblower reprisal claim
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filed by an FBI preference eligible because the FBI was specifically exempt from protections
set forth in the prohibited personnel practices statute and there is a separate review process
for claims of whistleblower reprisal for both preference-eligible and non-preference-eligible
FBI employees.
7. ANALYSIS.
The Board follows the Federal Circuit’s analysis for establishing Board jurisdiction over an
IRA appeal to establish the right to a requested hearing on a whistleblower claim. See
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 4 (2013). The Board has jurisdiction
over an IRA appeal if the appellant has exhausted the administrative remedies before OSC
and makes nonfrivolous allegations of facts that, if proven, could show that: (1) the
appellant engaged in whistleblowing activity by making a protected disclosure; and (2) the
disclosure was a contributing factor in the agency’s decision to take or fail to take, or
threaten to take or fail to take, a personnel action. Yunus, 242 F.3d at 1371; Mudd,
120 M.S.P.R. at 368, ¶ 4. See also 5 C.F.R. § 1201.57.
a. Exhaustion. Under 5 U.S.C. § 1214(a)(3)
, an employee is required to seek
corrective action from the OSC before seeking corrective action from the Board
where the personnel action at issue is not directly appealable to the Board.
Briley v.
National Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001);
Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). The Board may only
consider charges of whistleblowing that the appellant raised before OSC. Ellison v.
Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993); Coufal, 98
M.S.P.R. 31, ¶¶ 14, 18. To satisfy the exhaustion requirement, the appellant must
have informed OSC of the precise ground of each charge of whistleblowing, giving
OSC a sufficient basis to pursue an investigation that might lead to corrective action.
The appellant’s complaint to OSC must raise “with reasonable clarity and precision
the basis for his request for corrective action.” Ellison, 7 F.3d at 1036; Coufal, 98
M.S.P.R. 31, ¶ 14. He need not, however, correctly label the category of wrongdoing
he believes he has disclosed because OSC would be expected to properly categorize
the matter. Moreover, as whistleblower protections have been increased by
Congress, it appears that courts have also taken a more expansive view of whether a
matter has been exhausted, so that the degree of specificity required before OSC
may have been lessened if the record could be deemed to support the appellant’s
claim that he had, in fact, raised an issue. An appellant may demonstrate exhaustion
of the OSC remedies through the initial OSC complaint, and evidence of amending or
supplementing the initial OSC complaint, including but not limited to OSC’s
determination letter and other letters from OSC referencing the appellant’s amended
allegations, and the appellant’s written responses to OSC referencing OSC’s
discussion of the amended allegations. Mudd, 120 M.S.P.R. at 371, ¶ 12; Kuyoki v.
Department of Veterans Affairs, 111 M.S.P.R. 404, ¶ 13 (2009).
b. Protected Disclosure. Protected whistleblowing occurs when an appellant makes a
disclosure that she reasonably believes evidences a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or
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a substantial and specific danger to public health and safety. Mudd, 120 M.S.P.R.
at 369, ¶ 5;
Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17
(2011); see 5 U.S.C. § 2302(b)(8). The proper test for determining whether an
employee had a reasonable belief that her disclosures were protected is whether a
disinterested observer with knowledge of the essential facts known to, and readily
ascertainable by, the employee could reasonably conclude that the actions evidenced
a violation of a law, rule, or regulation, or one of the other conditions set forth in
5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. at 369, ¶ 5.
Alleged disclosures contained in a grievance pursuant to a negotiated grievance
procedure under a collective bargaining agreement are not protected under
section
2302(b)(8). Reprisal for exercising a grievance right is a prohibited personnel
practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). See, e.g., Serrao
v. Merit Systems Protection Board, 95 F.3d 1569, 1576 (Fed. Cir. 1996); Mudd,
120 M.S.P.R. at 369, ¶ 6; Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 11
n.2 (2006); Fisher v. Department of Defense, 47 M.S.P.R. 585, 587–88 (1991)
(section 2302(b)(8) does not extend to reprisal for filing grievances, which is
protected by section 2302(b)(9)). However, as discussed below, in section 11 of this
chapter, the WPEA expanded the scope of whistleblower appeals to include most
claims under
5 U.S.C. § 2302(b)(9).
Under the WPA, as amended, the appellant is not required to identify the particular
statutory or regulatory provision that the agency allegedly violated. The question is
whether a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the employee could reasonably conclude that the actions
evidenced a violation of a law, rule, or regulation, or one of the other conditions set
out in
5 U.S.C. § 2302(b)(8). Groseclose, 111 M.S.P.R. 194, ¶ 22 (citing Lachance
v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)).
Alleged protected disclosures of an abuse of authority or gross mismanagement
should follow the guidance outlined in Board precedent. See, e.g.,
Wheeler v.
Department of Veterans Affairs, 88 M.S.P.R. 236, ¶ 13 (2001)
(an abuse of authority
occurs when there is an arbitrary or capricious exercise of power by a Federal official
or employee that adversely affects the rights of any person or that results in
personal gain or advantage to himself or to preferred other persons);
White v.
Department of the Air Force, 63 M.S.P.R. 90, 95 (1994)
(gross mismanagement
means a management action or inaction which creates a substantial risk of
significant adverse impact upon the agency’s ability to accomplish its mission). As to
the disclosure of a substantial and specific danger to public health or safety, see
Chambers v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008):
A variety of factors guide the application of the statutory language, helping
determine when a disclosed danger is sufficiently substantial and specific to
warrant protection under the WPA. One such factor is the likelihood of harm
resulting from the danger. If the disclosed danger could only result in harm
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under speculative or improbable conditions, the disclosure should not enjoy
protection. Another important factor is when the alleged harm may occur. A
harm likely to occur in the immediate or near future should identify a protected
disclosure much more than a harm likely to manifest only in the distant future.
Both of these factors affect the specificity of the alleged danger, while the nature
of the harm—the potential consequences—affects the substantiality of
the danger.
c. Contributing Factor. To satisfy the contributing factor criterion, an appellant must
raise nonfrivolous allegations that the fact of, or content of, the protected disclosure
was one factor that tended to affect the personnel action in any way.
Atkinson v.
Department of State, 107 M.S.P.R. 136, ¶ 15 (2007) (citing Santos v. Department of
Energy, 102 M.S.P.R. 370, ¶ 10 (2006)). One way to establish the contributing
factor element is through the knowledge/timing test of 5 U.S.C. § 1221(e)(1)
, where
the disclosure is shown to have been a contributing factor through circumstantial
evidence such as evidence that the official taking the personnel action knew of the
disclosure, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in the
personnel action.
Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 11
(2003); see Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12,
aff’d, 353 F. App’x 435 (Fed. Cir. 2009). While the knowledge/timing test is not the
only way for an appellant to satisfy the contributing factor standard, it is “one of the
many possible ways” to satisfy the standard. Carey, 93 M.S.P.R. 676, ¶ 11. When
the appellant has not specifically alleged that an official knew of the disclosure at
issue, the appellant may make nonfrivolous allegations under a “cat’s paw” theory
that the protected disclosure was a contributing factor by alleging that the official
was influenced by an individual with actual knowledge of the disclosure. See
Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108 (1994)
.
d. Personnel action. An IRA appeal must be based on one of the 12 “personnel
actions,” as that term is detailed in 5 U.S.C. § 2302(a)(2)(A). A voluntary action
is not a personnel action and cannot form the basis for an IRA appeal. Thus, an
employee’s claim that he or she resigned or retired involuntarily can form the basis
for an IRA appeal only if the employee proves that his or her facially voluntary action
was actually coerced by the agency or otherwise rendered involuntary under the
standards applied in chapter 75 appeals of such actions. See Koury v. Department
of Defense, 84 M.S.P.R. 219, ¶ 10 (1999). Further, if the agency actions that form
the basis for the involuntariness claim suffice to constitute a hostile environment, the
creation of such an environment is a personnel action. Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 (2014). Conversely, a termination during
probation is a personnel action, but not generally considered an appealable matter.
Thus, if an appellant first files an OAA (315H) appeal based on a termination during
probation that is ultimately found not to be within the Board’s jurisdiction, the
appellant can then file an IRA appeal without being held to his initial election of a
direct appeal, since he had no right to make such an election. Shannon v.
Department of Homeland Security, 100 M.S.P.R. 629, ¶ 17 (2005).
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e. Threats. To establish Board jurisdiction, the appellant must make nonfrivolous
allegations that a person with authority took, failed to take, or threatened to take or
fail to take, a personnel action. What constitutes a “threat” is often not clear, but a
simple belief that the appellant will face discipline does not constitute a threat. See
Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661,
¶¶ 10-12 (2015). The term “threaten” should be interpreted broadly and, thus, a
counseling memorandum warning of possible future discipline, Campo v. Department
of the Army, 93 M.S.P.R. 1, ¶¶ 7–8 (2002), and a supervisor stating that an
employee should not expect the same performance rating he had received the year
before, Special Counsel v. Hathaway, 49 M.S.P.R. 595 (1991), were deemed
threatened personnel actions. In Rebstock the Board stated that “[a]bstract
concerns about possible disciplinary action, without any evidence that the agency
actually has threatened or suggested it would take such action, do not constitute
nonfrivolous allegations that the agency threatened to take a personnel action.”
Rather, “the agency must take some action signifying its intent to take a
personnel action.”
f. Burdens at Hearing. Federal agencies are prohibited from taking, failing to take, or
threatening to take, a personnel action against an employee in a covered position
because of the disclosure of information that the employee reasonably believes to be
evidence of a violation of law, rule, or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to public
health and safety.
5 U.S.C. § 2302(a)(2), (b)(8); see Jenkins v. Environmental
Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012). To establish a prima facie case
of whistleblower reprisal in an IRA appeal, the appellant must prove by preponderant
evidence that he or she made a protected disclosure and that the disclosure was a
contributing factor in a personnel action. 5 U.S.C. § 1221(e)(1); Jenkins, 118
M.S.P.R. 161, ¶ 16. If the appellant makes out a prima facie claim of whistleblower
reprisal, the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure. 5 U.S.C. § 1221(e)(2); Jenkins, 118 M.S.P.R. 161, ¶ 16. In
determining whether an agency has shown by clear and convincing evidence that it
would have taken the same personnel action in the absence of whistleblowing, the
Board will consider the following factors: (1) the strength of the agency’s evidence
in support of its action; (2) the existence and strength of any motive to retaliate on
the part of agency officials who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who are not whistleblowers
but who are otherwise similarly situated. Carr v. Social Security Administration, 185
F.3d 1318, 1323 (Fed. Cir. 1999); Mattil v. Department of State, 118 M.S.P.R. 662,
669-70, ¶¶ 11-12 (2012); Jenkins, 118 M.S.P.R. 161, ¶ 16.
Generally, an AJ should not bifurcate the hearing on the merits of an IRA appeal,
that is, first take evidence on whether the agency met its clear and convincing
evidence burden because the AJ must give full and fair consideration to the
appellant’s claim through adjudication of both the merits of the prima facie case of
whistleblower retaliation as well as the agency’s affirmative defense. Mattil,
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118 M.S.P.R. 662, 668-69, ¶¶ 11-12 (holding that the decision to bifurcate the
hearing was unwarranted under the particular circumstances of the appeal when the
substance of one of the disclosures at issue was intertwined with the appellant’s
claim that the immediate supervisor was concerned with the effect of that disclosure
on his own career). In light of the Federal Circuit’s decision in Whitmore v.
Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering all
the pertinent evidence in the record, and despite the evidence that fairly detracts
from that conclusion; a complete evaluation of the facts is necessary in every case),
it seems likely that bifurcation usually should not be done.
Because the appellant has the burden of proof in an IRA appeal, it is the appellant
who presents his or her case first, even when the underlying matter is an appealable
action that the appellant chose to bring to OSC. In an OAA, of course, that
would not be true.
In addition, one who is perceived as a whistleblower is entitled to the protections of the
WPA, even if she has not made protected disclosures. Jensen v. Department of Agriculture,
104 M.S.P.R. 379, ¶ 11 n.3 (2007); Juffer v. United States Information Agency, 80 M.S.P.R.
81, ¶ 12 (1998); Special Counsel v. Department of the Navy, 46 M.S.P.R. 274, 278-80
(1990). To make such a claim, the appellant must show: (1) that she exhausted her
remedies with OSC on the issue of whether the agency perceived her as a whistleblower;
and (2) that the agency's perception of her as a whistleblower was a contributing factor in
its decision to take or not take the personnel action at issue, which she may do through the
knowledge/timing test. If the appellant meets these burdens, the agency may still prevail if
it can show by clear and convincing evidence that it would have taken the personnel action
at issue absent its perception of the appellant as a whistleblower. King v. Department of the
Army, 116 M.S.P.R. 689 (2011). The Board later extended the “perceived-as” rule under
the WPEA to each of the activities it covers. Corthell v. Department of Homeland Security,
123 M.S.P.R. 417 (2016).
8. REFERRAL TO THE OFFICE OF SPECIAL COUNSEL (OSC).
Pursuant to 5 U.S.C. § 1221(f)(3)
, when “under this section”, the Board “determines that
there is reason to believe that a current employee may have committed a prohibited
personnel practice, the Board shall refer the matter to the Special Counsel to investigate
and take appropriate action under section 1215.” The responsibility to provide such
notification now rests with OCB, both if the ID becomes final in the absence of a PFR and if
the Board on PFR agrees with the decision. A Law Manager report lists all cases making
such a finding and their finality dates. OCB will consult that list to keep track of finality
dates and send the notice, so that the regions are relieved of the obligation. Thus, there is
no need for the RO or FO to notify OCB when a decision is issued that might call for the
issuance of such a referral.
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9. ATTORNEY FEES.
The prevailing party test enunciated in Cuthbertson v. Merit Systems Protection Board,
784 F.2d 370 (Fed. Cir. 1986), for attorney fees claims under the Civil Service Retirement
Act also applies to attorney fees claims under the WPA. Hamel v. President’s Commission
on Executive Exchange, 987 F.2d 1561 (Fed. Cir.), cert. denied, 510 U.S. 931 (1993). An
appellant who prevails on a WPA claim is entitled to an award of costs he incurred directly,
in addition to reimbursement for attorney fees. Bonggat v. Department of the Navy
,
59 M.S.P.R. 175 (1993) (reversing Wiatr v. Department of the Air Force, 50 M.S.P.R. 441
(1991)). See also chapter 13, section 2 of this Handbook, noting that there is no interest of
justice requirement to be met in appeals finding whistleblower retaliation, and that it is the
appellant, not the attorney, who is entitled to the award. See Rumsey v. Department of
Justice, 123 M.S.P.R. 502, ¶¶ 7-8 (2016), rev’d on other grounds, Rumsey v. Department of
Justice, 866 F.3d 1375 (Fed. Cir. 2017).
10. CONSEQUENTIAL AND COMPENSATORY DAMAGES.
The Board may order payment of consequential damages, including medical costs incurred,
travel expenses, and any other reasonable and foreseeable consequential damages as
authorized by 5 U.S.C. § 1221(g)(1)(A)(ii)
, when the Board orders corrective action in a
whistleblower appeal to which 5 U.S.C. § 1221 applies. 5 C.F.R. § 1201.202(b). The Board
may not award nonpecuniary damages for mental distress under the consequential damages
provision, however.
Kinney v. Department of Agriculture, 82 M.S.P.R. 338, ¶ 10 (1999). It
may, though, award compensation for future medical expenses which are the result of the
retaliation and can be proven with reasonable certainty, under its authority to reimburse for
“medical costs incurred.”
See Pastor v. Department of Veterans Affairs, 87 M.S.P.R. 609
(2001). See also chapter 13, sections 6 and 7 of this Handbook. Under the WPEA,
compensatory damages may also be awarded. While there is little law on such damages in
the context of whistleblower retaliation, see King v. Department of the Air Force,
119 M.S.P.R. 663 (2013) (the compensatory damages provision does not apply
retroactively), there is a good bit of precedent on such damages in the context of EEO
reprisal, much of which is likely to be appropriate in this context as well. Unlike EEO
reprisal, however, note that the $300,000.00 limitation is missing from the WPEA.
Consequential damages represent an award that the appellant might be entitled to, if he
meets the requirements of the statute. For this reason, the cancellation of the appealed
action does not moot an IRA appeal or the appeal of an OAA that includes a whistleblower
claim, if the appellant has requested consequential damages or has not yet been informed
of his right to do so. After providing sufficient notice, the AJ must afford an appellant a
specific opportunity to raise a claim for consequential damages before deciding if it is
appropriate to dismiss the appeal as moot. Vick v. Department of Transportation,
118 M.S.P.R. 68, 69-70, ¶ 5 (2012);
Gilbert v. Department of the Interior, 101 M.S.P.R.
238, ¶ 6 (2006). Thus, in situations where the agency may have rescinded the personnel
action(s) at issue, the appellant’s outstanding claim for consequential damages will preclude
dismissal of the whistleblower claim as moot. Vick, 118 M.S.P.R. 70, ¶ 5.
Because consequential damages constitute an award beyond status quo ante relief, the
appellant would not be eligible for such damages in a case that does not include a WPA
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claim. See Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248 (2007) (noting that
“[t]he WPA affords to a person who prevails on an allegation of reprisal for whistleblowing
relief that exceeds status quo ante relief, including medical costs incurred, travel expenses,
and other reasonably foreseeable consequential damages.”). The appellant therefore
will not have received all the relief to which he may be entitled in the WPA appeal even if he
receives all the relief to which he is entitled in the OAA case that does not have a
whistleblower affirmative defense claim under the WPA.
The Board has applied a similar rule to an arbitrator’s decision in a situation where the
appellant filed a grievance of his removal under chapter 75, but an appeal of the agency’s
action in removing him, on the same date, under chapter 43.
Dey v. Nuclear Regulatory
Commission, 106 M.S.P.R. 167 (2007). Because the appellant had raised a claim of
whistleblower retaliation in his chapter 43 appeal, and requested consequential damages if
he prevailed on that claim, the AJ could not properly dismiss the appeal without prejudice to
await the result of the arbitration of the chapter 75 action. Id. Even if the appellant loses
the arbitration, and therefore remains separated from the agency and so ineligible for back
pay as a result of the chapter 43 appeal, the appeal is not moot because of the
consequential damages claim, inasmuch as he is not eligible for such damages in his
arbitration, which did not raise such a claim.
11. WHISTLEBLOWER PROTECTION ENHANCEMENT ACT (WPEA).
As a result of the WPEA, 5 U.S.C. § 2302(b)(9)
protects not just disclosures, but also
certain actions:
(A) the exercise of any appeal, complaint, or grievance right granted by any law,
rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8).
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector General of an agency,
or to the Special Counsel, in accordance with applicable provisions of law, or
(D) for refusing to obey an order that would require the individual to violate a law,
rule or regulation. [Note that “rule or regulation” was added by the Follow the
Rules Act, not the WPEA.]
While (b)(9) pre-existed the WPEA, it did not then distinguish between (A)(i) and (ii) or
provide for the filing of an IRA appeal based on the activities protected by the section.
What the WPEA did was to extend the Board’s IRA appeal jurisdiction to claims arising under
all of (b)(9) except for (b)(9)(A)(ii). WPEA § 101(b)(1)(A). Thus, to the extent the
appellant alleges that the agency took, failed to take or threatened to take a personnel
action in reprisal for exercising a grievance, complaint, or appeal right, the AJ will need to
determine if the Board has jurisdiction to consider such allegations in the context of the IRA
appeal by determining whether that grievance, complaint, or appeal was filed to remedy a
(b)(8) violation. If it was, then an IRA appeal is viable. Clay v. Department of the Army,
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123 M.S.P.R. 245 (2016) (the appellant’s claim of retaliation for his earlier Board appeal
that included a whistleblower issue comes within (b)(9)(A)(i) and is to be analyzed under
5 U.S.C. § 1221(e)).
Although (b)(9)(A) protects against reprisal only for those appeals, complaints, and
grievances filed by the appellant that were aimed at remedying a (b)(8) violation, as
(b)(9)(B) suggests, an IRA appeal may now be filed by any employee who assisted another
individual with that person’s appeal, complaint, or grievance regardless of whether it
involved a (b)(8) claim. See Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446
(2014). Union stewards and others who file such actions on behalf of other employees are,
of course, covered, as are individuals who were witnesses or were otherwise of assistance to
a complainant, appellant, or grievant. The same burden-shifting analysis applicable to
(b)(8) claims is also applicable to (b)(9), meaning that in a chapter 75 case where
jurisdiction is established, the appellant must prove by preponderant evidence that he or
she engaged in the protected disclosure and that it was a contributing factor to the
personnel action at issue. The burden then shifts to the agency to prove by clear and
convincing evidence that it would have taken the same action absent that protected activity.
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-14 (2015). In IRA appeals
based on (b)(9), the appellant must prove he exhausted as to the specific protected action
at issue.
The WPEA also expanded the scope of protected disclosures to comport with what Congress
stated it had intended all along. Thus, under 5 U.S.C. § 2302(f)(1), a disclosure is not
excluded because it was made to the wrongdoer or his supervisor; it revealed information
that had previously been disclosed; it was not made in writing; or it was made while off
duty. The motive for making the disclosure and the amount of time that has passed since
the occurrence of the events described in the disclosure also provide no basis for exclusion.
Pursuant to 5 U.S.C. § 2302(f)(2), “if a disclosure is made during the normal course of
duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any
employee who has authority to take, direct others to take, recommend or approve any
personnel action with respect to the employee making the disclosure, took, failed to take, or
threatened to take or fail to take a personnel action with respect to that employee in
reprisal for the disclosure.” The Board has not yet fully analyzed the provision but in
Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014), stated that “[i]n
explaining this new provision in the Act, the Senate Report stated that disclosures made in
the course of one’s duties are protected only if the employee also proves that the agency
took the personnel action with an improper retaliatory motive. S.Rep. No. 112-155, 5-6,
reprinted in 2012 U.S.C.C.A.N. 589, 593-94. Accordingly, when an appellant has made a
protected disclosure in the normal course of her duties, the statute now requires her to
prove that the personnel action taken was in retaliation for the disclosure.”
Despite the Board’s expanded jurisdiction under the WPEA, vague, nonspecific allegations of
wrongdoing and simple policy disagreements remain unprotected. See Salerno v.
Department of the Interior, 123 M.S.P.R. 230 (2016).
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As a result of the WPEA and the All-Circuit Review Act, all IRAs and OAAs that involve (b)(8)
and (b)(9) (except (b)(9)(a)(ii)) issues may be appealed to the US Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The Board has not yet
addressed how it will deal with any split between the circuits that may arise.
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CHAPTER 16 - STAY REQUESTS
1. GENERAL.
Stay requests may be granted only when raised in connection with a whistleblower appeal,
defined broadly to include those activities protected by 5 U.S.C. § 2302(b)(8) and (b)(9),
except (b)(9)(A)(ii), either an IRA appeal or an OAA. See 5 U.S.C. § 1221(a)-(c);
5 C.F.R.
§§ 1209.8-.11 5 U.S.C. §§ 1221(c)(1), 1221(i). All stay requests must be entered in the
CMS as separate cases even if the stay request is not within the Board’s jurisdiction. The
appellant may request a stay of a personnel action that has already been effected.
Visconti v. Environmental Protection Agency, 78 M.S.P.R. 17, 22 (1998).
2. TIME OF FILING.
An appellant may request a stay at any time after becoming eligible to file an appeal with
the Board but no later than the time limit set for the close of discovery in the appeal.
Within those constraints, a stay request may be filed prior to, simultaneous with, or after
the filing of an appeal. See 5 C.F.R. § 1209.8(a).
Board regulations provide no limitation
on the number of times an appellant may file a stay request within these time frames.
3. PROCEDURES FOR RULING ON STAY REQUESTS.
a. General. Within 10 days of receipt of a stay request, an AJ must issue an Order
ruling on the request, and set forth the factual and legal bases for the ruling. See
5 C.F.R. § 1209.10(b). While the statute, 5 U.S.C. § 1221(c)(2), requires only that a
stay that is granted be completed within 10 days, by its regulation the Board has
extended the 10-day requirement to denied stays as well. If a sufficient analysis
cannot be completed within 10 days it may be appropriate for the AJ to issue a
decision in the manner of a bench ruling, followed by an Opinion containing the
reasons for the ruling as soon as possible, certainly within 10 additional days. The
Board’s original interim part 1209 regulations specified that such a procedure was
acceptable. That statement was later deleted as unnecessary, however. No Board
decisions have commented on use of the procedure, so it is not entirely clear what
the Board’s current view of it is. Given Spithaler and similar decisions, it may be
preferable to bifurcate the ruling process than to issue an Opinion that does not meet
the Board’s quality standards.
b. Service of the Stay Request. Upon receipt of the stay request, the AJ should ensure
that the appellant has served it on the agency as the regulations require. See
5 C.F.R. § 1209.8(c). Depending on the circumstances, the AJ may wish to consider
issuing an acknowledgment order reminding the agency of the short time
requirements for response as well as the required content of the response. See
5 C.F.R. § 1209.9(c).
c. Unperfected Stay Requests. The AJ must determine whether the appellant has made
the requisite jurisdictional allegations for a whistleblower action before ruling on any
stay request. If the appellant has not made nonfrivolous allegations on all elements
of a whistleblower claim, the AJ should issue a show cause order on the jurisdictional
issues. Where the appellant has failed to establish the Board’s jurisdiction over the
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initial stay request, the time limit for adjudicating the stay request begins on the
date the record closes on the jurisdictional issue.
4. MERITS ISSUES CONCERNING STAYS.
Proof requirements. To establish entitlement to a stay under the WPA, an appellant must
produce, inter alia, evidence or argument showing that there is a substantial likelihood of
prevailing on the merits of the claim that reprisal for a disclosure under
5 U.S.C.
§ 2302(b)(8) or activity under (b)(9) was a contributing factor in the proposed, threatened,
or taken personnel action. See Eilinsfeld v. Department of the Navy, 79 M.S.P.R. 537, 542
(1998); 5 C.F.R. §§ 1209.9(a)(6)(ii), 1209.4(c). The agency must submit evidence or
argument on the same issue, as well as on whether a stay would result in extreme hardship.
Visconti, 78 M.S.P.R. at 2. Although the appellant has the burden of proof, the burden of
going forward with the evidence shifts to the agency if the appellant shows a substantial
likelihood that the disclosures are a contributing factor in the personnel actions at issue. Id.
at 23. As is true of proof of the affirmative defense in general, the appellant may meet that
burden by either direct or circumstantial evidence.
5. APPEAL RIGHTS FROM A RULING ON A STAY REQUEST.
An order granting or denying a stay request is not a final order and therefore cannot be the
subject of a PFR. See Weber v. Department of the Army
, 47 M.S.P.R. 130, 132-33 (1991).
Therefore, no review rights notice should be included. An interlocutory appeal, 5 C.F.R.
§§ 1201.91-.93, is the only means for securing immediate review of an order regarding a
stay request. The AJ has discretion to certify an interlocutory appeal of an order regarding
a stay request in accordance with
5 C.F.R. § 1201.92. However, once the AJ denies a
request for certification of an interlocutory appeal, the party that sought certification may
raise the matter at issue in a PFR filed after the ID is issued.
5 C.F.R. § 1201.93(b).
McCarthy v. International Boundary and Water Commission: U.S. & Mexico, 116 M.S.P.R.
594, 604 (2011).
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CHAPTER 17 - SPECIAL RECORDS PROCEDURES
1. SEALED CASES.
a. Purpose. To protect the confidentiality of certain documents, an AJ may be
requested to seal an appeal file or a portion thereof. See generally Social Security
Administration v. Doyle, 45 M.S.P.R. 258 (1990) (factors considered in ruling on
motion to seal record). The decision to seal an appeal file, in whole or in part, is
within the discretion of the AJ. The law favors public access to governmental records
unless access is specifically restricted. See the Freedom of Information Act (FOIA),
5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. National security information
is handled as described in section 2 below.
b. Form of Request. The request that a file, or a portion of the file, be sealed must
come in the form of a motion. The motion must clearly identify the portions of the
record sought to be sealed and show good cause for sealing.
c. Significance of Sealing. Unlike judicial practice, sealing by the Board is not
necessarily a permanent action. Under the FOIA, all documents filed in Board
proceedings are records available to the public if they cannot be withheld under any
of the nine exemptions of FOIA. A subsequent FOIA request for sealed material
requires that the material be reviewed anew and that a determination be made as to
any FOIA exemptions that apply. AJs should inform the party requesting sealing that
even though the Board may grant the request to seal the file or portions of the file, it
may be subject to release if a FOIA request is made. Likewise, the parties should
also be made aware that because of the privacy protections available under Board
regulations, e.g., a closed hearing, the use of incomplete or fictitious names in the
ID, and the sealing of records, where a witness is not called due to privacy concerns,
the existing protections mean he is “available” to testify at the hearing, so that the
Board will assign his hearsay statement little probative value.
Wallace v.
Department of Health & Human Services, 89 M.S.P.R. 178, ¶ 6 (2001).
d. Alternatives to Sealing. The AJ may suggest alternatives to the submission of
documents requested for sealing, such as the filing of summaries of the documents
containing the confidential information or the submission of affidavits and
stipulations as to their contents.
e. Standard for Sealing. The reasons advanced by courts for sealing judicial records
are generally consistent with the nine categories of information exempt from
disclosure under FOIA. If a document may be withheld under FOIA, it may be
appropriate to seal the document. On the other hand, mere applicability of one of
these exemptions should not constrain an AJ to seal. Because sealing interferes with
normal case-handling procedures, sealing should be used sparingly.
Any Board decision concerning public access to Board records must comport with the
substantive requirements of FOIA. The exemptions from disclosure under FOIA are
briefly summarized as follows:
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(1) Exemption 1 - matters authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or foreign policy that
are properly classified under the applicable Order (See section 2, National
Security (Classified) Information, later in this chapter);
(2) Exemption 2 - matters related solely to the internal personnel rules and practices
of an agency;
(3) Exemption 3 - matters specifically exempted from disclosure by a statute that
allows no discretion or sets specific withholding criteria;
(4) Exemption 4 - trade secrets and commercial or financial information;
(5) Exemption 5 - inter-agency or intra-agency memoranda or letters which
would not be available by law to a party other than an agency in litigation with
the agency;
(6) Exemption 6 - personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy;
(7) Exemption 7 - records or information compiled for law enforcement purposes that
meet certain specified criteria;
(8) Exemption 8 - matters contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions; and
(9) Exemption 9 - geological and geophysical information and data, including maps,
concerning wells.
The statute provides, however, that where an exemption applies, “any reasonably
segregable portion of the record” must nonetheless be provided after deletion of
the exempt portion.
The AJ also may decide to seal all or part of a file for good cause other than the
FOIA exemptions. In addition, the Privacy Act restricts an agency from disclosing
a Privacy Act record to any person other than the subject of the record without
the written consent of the subject, except in narrow, specific circumstances as
recognized by the Privacy Act. See 5 U.S.C. § 552a
(b). Among the exceptions
are FOIA disclosures.
f. Procedures for Sealing Files.
(1) Documents that are the subject of a sealing request should be identified and
designated as such at the time of filing or submission. All parties to the appeal
should be permitted to object to a motion to seal the record in whole or in part.
As noted, however, sealing is not favored, so any reasonable actions that may
alleviate the need for it should be taken in advance of developing the record and
issuing the ID.
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(2) If the AJ determines that an appeal file should not be sealed, the AJ must issue
an order (in writing or on the record during the hearing or a recorded prehearing
conference) that denies the motion to seal and includes specific reasons for the
denial. The party requesting that material be sealed must be permitted to file
objections to the denial of the motion, and any objections must be made a part of
the record.
(3) If the AJ determines that an appeal file should be sealed, the AJ must issue an
order (in writing or on the record as discussed above) that grants the motion to
seal. The order must contain sufficient analysis to support its granting of the
motion to seal.
As previously discussed, the AJ’s order should also advise the moving party of the
potential risk of disclosure under a FOIA request. The AJ may advise the moving
party that, to protect the material, the moving party may attach a statement to
the motion for sealing that sets forth the FOIA exemptions he or she believes
may apply.
For paper records, the document(s) must be placed in a marked envelope bearing
the notation “SEALED BY ORDER OF THE MERIT SYSTEMS PROTECTION BOARD,
(date).” The envelope must be labeled with the appeal caption, appeal file tab
number, and a brief description of the document. The sealed envelope must be
placed in the appeal file. The cover of the appeal file volume and the index must
be marked to signal that the file contains sealed material.
The volume of the appeal file containing the sealed material must be placed in a
red-striped jacket, MSPB Form 13. The label required above is to be placed over
the “Immediate Attention” label on the jacket. If the appeal file contains more
than one volume, the first volume of the file is also to be placed in a labeled,
red-striped jacket.
If an appeal file containing sealed material is requested by another office of the
Board, the requesting office must be notified by electronic mail that the file
contains such material. The RO must request the name of the person to whom
the file should be mailed, and the file should be directed to that individual’s
attention. The sealed material should be wrapped, taped securely, and clearly
marked “TO BE OPENED BY ADDRESSEE ONLY.”
If an AJ grants a motion to seal in a case where the official record is electronic, in
the absence of a finalized Records Manual, the AJ should check with OCB’s
records expert to determine the appropriate approach to take. Password
protection is an obvious step. This applies to the electronic DMS record of a case
where the official record is paper, as well.
Regardless of actions taken concerning the documents in the file, a serious
question exists as to whether a final decision may be sealed. Promises that the
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decision will be sealed should be avoided and every effort should be made to
write the decision in such a way as to avoid including sensitive information in the
document. If there is no apparent way to satisfy the parties’ genuine need for
sealing, the AJ must check with ORO and ORO will raise the matter with OGC.
2. NATIONAL SECURITY (CLASSIFIED) INFORMATION.
a. Definition. Classified information is information that needs protection, in the interest
of national security, from unauthorized disclosure. Executive Order 12356 and
Information Security Oversight Office (ISOO) Directive No. 1 govern classification.
The protection of classified information is the responsibility of each individual who
possesses or has knowledge of such information, regardless of how it is obtained.
There is no current Board order or directive that sets forth policy and procedures for
handling classified information.
b. The AJ’s Responsibility When a Party to an Appeal Attempts to Introduce Classified
Information into the Record. When a party attempts to introduce classified
information into the record, the AJ must immediately make a ruling on its
admissibility. If one or both parties agree that classified information will be
necessary for the proper adjudication of an appeal, or if the AJ cannot determine its
relevance without having knowledge of the classified material, the AJ must
immediately notify ORO, which will locate an employee with the appropriate level of
security clearance and provide for the adjudication of the appeal if it appears that
classified information will be introduced or examined in camera. Given the
government-wide trend of limiting the number of security clearances, an AJ with the
requisite level of clearance may not be available. Further, the Board lacks the
facilities necessary to handle classified information, such as secured phone lines,
locked storage areas, etc. All support staff who assist a properly cleared AJ must
also have the necessary level of clearance. Therefore, it is important for the AJ to
determine if the appeal may proceed without the introduction of classified
information, both documentary and testimonial. If it cannot, ORO will attempt to
assign the case to an AJ but if no one is available, the appeal may be assigned to a
properly cleared ALJ from outside the MSPB. Thus, it is important to determine as
early in the proceedings as possible whether there is a likelihood that classified
information will have to be introduced.
3. SANITIZATION OF INITIAL DECISIONS.
a. Generally. Sanitization of IDs where public disclosure would endanger the personal
privacy of persons named in the decision may be done at the request of a party, at
the request of the persons named or their representatives, or at the discretion of
the AJ.
FOIA authorizes an agency, “to the extent required to prevent a clearly unwarranted
invasion of personal privacy,” to delete or sanitize identifying details from agency
opinions made available to the public.
5 U.S.C. § 552(a)(2).
Generally, greater privacy interests are considered to attach to third parties named
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in Board decisions than to appellants. This is because appellants waive some of their
interest in privacy by appealing to the Board. Appellants’ identities should also be
sanitized, however, when disclosing the appellant’s identity poses danger to the
appellant, other persons, or governmental interests.
A “clearly unwarranted” invasion of the personal privacy of a third party would tend
to exist when the decision reveals intimate personal details concerning the private
life of the third party. Certain kinds of cases, particularly off-duty misconduct cases,
may require sanitization of third-party identifying information. The kinds of cases in
which AJs and CAJs should be especially alert to the possibility of sanitization include
those in which underlying facts relate or refer to:
- Allegedly criminal behavior;
- Alcohol or drug abuse;
- Mental illness;
- Personal finances; or
- Sexual behavior
This does not mean that a case involving any of the above kinds of privacy-sensitive
facts automatically requires sanitization. Neither does it mean that the need for
sanitization could not arise in other types of privacy-sensitive cases. Rather, the
above list is intended to provide a sense of the kinds of intimate facts or details from
a person’s private life where revelation in a decision should trigger the consideration
of sanitization.
b. Method of Analysis. The decision whether to sanitize involves the two-step analysis
underlying the application of FOIA Exemption 6 (privacy). 5 U.S.C. § 552(b)(6). In
summary, this analysis requires: (1) determining there is a strong possibility that
the use of the third party’s name would constitute an invasion of a protectable
privacy interest; and (2) balancing the individual privacy concerns and the public
interest in disclosure of the third party’s identity. This two-step analysis is also the
analysis used in ruling on motions by an appellant to proceed anonymously in his or
her appeal before the Board. See chapter 2, section 5, subparagraph c(3).
c. Alternatives to Sanitizing. The necessity for sanitizing the identity of a third party in
a decision is eliminated if the AJ, in drafting the decision, recognizes the sensitivity of
the material involved in the case and identifies the third party as “Mr. A.” “Ms. A,”
“Witness A,” etc. It must remain clear to the parties and reviewers who is
represented by such designations. Appellants themselves may be referred to as
John Doe (regardless of gender) in appropriate cases. This is an effective and
efficient approach and should be used when appropriate.
4. THIRD-PARTY REQUESTS UNDER FOIA; APPELLANT REQUESTS; PRIVACY ACT.
The Board’s procedures for handling FOIA requests, the nature of the information that can
be released, and fee assessments are found in 5 C.F.R. part 1204
, Availability of Official
Information. Beginning December 2016, responsibility for FOIA responses was centralized
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in OCB, although the regions retain responsibility for providing documents requested by
OCB that will allow it to respond. As to FOIA requests from appellants, see
Redschlag v.
Department of the Army, 89 M.S.P.R. 589, 596 n.1 (2001). There, the appellant requested
that the Board issue its Opinion and Order as an unpublished decision, withhold it from
electronic dissemination, restrict access to all appeal-related documents in its control, and
restrict from distribution and publication all such documents in the control of both the
agency and the RO or FO. The Board found that the FOIA circumscribes its consideration of
the appellant’s requests, that she failed to show that those records are exempt from
mandatory disclosure under the law, and that the law also requires that the Board make its
final decisions available to the public and that it do so electronically. It noted, though, that
if a third party requested access to any of the records of the appellant’s appeal, that request
would be addressed in accordance with the Board’s regulations at
5 C.F.R. part 1204.
The Board does not have jurisdiction to adjudicate Privacy Act claims. Calhoon v.
Department of the Treasury, 90 M.S.P.R. 375, ¶ 15 (2001) (the federal district courts, not
the Board, are the appropriate forum for adjudication of a Privacy Act matter); 5 U.S.C.
§ 552a(g)(1) (an individual may bring a civil action in the district courts of the United States
against an agency for a violation of the Privacy Act). The Board has, however, considered
issues involving the Privacy Act where the Act is implicated in matters over which the Board
has jurisdiction. See, e.g., Gill v. Department of Defense, 92 M.S.P.R. 23, ¶¶ 21-24 (2002).
5. SENSITIVE SECURITY INFORMATION.
SSI is a category of sensitive but unclassified information. It is governed by 49 C.F.R.
parts 15 and 1520. As defined at 49 C.F.R. § 1520.5, SSI is information obtained or
developed in the conduct of security activities, including research and development, the
disclosure of which would be detrimental to the security of transportation. The “MSPB SSI
Directive” (2011) sets out the steps the Board must take to safeguard such information and
names OCB as the Board’s authority concerning SSI issues as well as the source of SSI
answers when questions arise. AJs must comply with the requirements of the Directive
whenever they have a case that either they or one of the parties believes may contain SSI.
Among those requirements, hearings, or portions thereof, in which SSI may be disclosed,
must be closed to the public, and at hearings held by telephone or video, the AJ must
require each participant to certify that he or she is in a location providing privacy; the entire
record may be sealed (and must be sealed in the case of a Transportation Security Officer
IRA appeal), but in any event, an SSI document cover sheet must be placed on top of any
document that contains SSI; an SSI caption sheet should be used to identify boxed files
containing SSI; a standard distribution limitation statement shall be applied to all
documents that contain SSI by use of a macro button labeled “SSI” that is on the “Legal”
toolbar in Microsoft Word; and the files should be placed in a yellow expandable folder. All
electronic documents containing SSI must be password protected.
The Board’s e-Appeal Online filing system may not be used to file any document that
contains SSI. Nor may the e-Appeal Online automated distribution system for e-filers be
used for Board documents that contain SSI, and additional rules apply regarding how SSI
documents may be transmitted. Cases that would otherwise be all electronic files can no
longer be electronic until such time as OCB develops a procedure that will allow for that.
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Decisions and orders containing SSI may not initially be released beyond the parties. OCB
is responsible for transmitting the decision to the Transportation Security Administration’s
SSI office, where any necessary redactions will be accomplished. After that process has
been completed, full distribution of the document may be accomplished. Special Rules also
apply to FOIA requests, media inquiries, and Congressional requests involving SSI. AJs and
paralegals must check the Directive any time they work on a case that may contain SSI.
6. OTHER UNCLASSIFIED BUT SENSITIVE INFORMATION.
Although it is rare, the Board has received appeals involving other types of material that
are not classified but are considered sensitive, specifically Unclassified Controlled Nuclear
Information (UCNI) and Unclassified Naval Nuclear Propulsion Information (UNNPI). Both
have required the development of procedures to accommodate the processing of the
appeals involving these issues. If another appeal arises involving these types of issues, the
AJ should contact ORO because the same or a similar process may work in the case under
review. ORO will work with the AJ and OGC if other processes are needed or if additional
types of unclassified but sensitive information are involved in an appeal.
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CHAPTER 18 - USERRA AND VEOA APPEALS
1. THE STATUTES.
a. USERRA. The most commonly brought claim under USERRA is that a person was
denied a “benefit of employment by an employer on the basis of ... membership,
application for membership, performance of service, application for service, or
obligation” with respect to a uniformed service.
38 U.S.C. § 4311(a). As explained
below, however, two other provisions of the law can also form the basis for a
USERRA appeal. The Board has jurisdiction over appeals from any action taken by a
Federal employer contrary to the requirements of the law.
38 U.S.C. § 4324.
b. VEOA. Pursuant to 5 U.S.C. § 3330a, the Board’s jurisdiction under VEOA extends to
the appeal of a preference eligible who alleges that, on or after October 31, 1998,
there was a violation of any statute or regulation relating to veterans’ preference
with respect to Federal employment. See
5 U.S.C. § 3330a(d)(1). The law also
provides jurisdiction as to certain claims of denial of the opportunity to compete for
positions, as more fully discussed below.
The procedures applicable to cases brought under these laws are set out at
5 C.F.R.
part 1208. In addition, except as expressly provided in that part, the Board will
apply subparts A, B, C, and F of part 1201. According to 5 C.F.R. § 1208.3, it will
also apply the provisions of subpart H of part 1201 regarding attorney fee awards.
However, subsequent case law suggests that, at least for the most part, this
statement has been rendered incorrect. See chapter 13, section 2.d of this
Handbook, discussing Jacobsen v. Department of Justice, 500 F.3d 1376 (Fed. Cir.
2007), which states that “Congress left the decision whether to award reasonable
attorney fees, expert witness fees, and other litigation expenses to the Board’s
discretion,” so that the rules developed under § 7701 may not fully apply.
2. JURISDICTION.
a. USERRA. Three separate claims may be brought under USERRA.
(1) 38 U.S.C. § 4311(a) provides that “[a] person who is a member of, applies to be
a member of, performs, has performed, applies to perform, or has an obligation
to perform service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of
employment by an employer on the basis of that membership, application for
membership, performance of service, application for service, or obligation.” To
establish Board jurisdiction over an appeal alleging a violation of
38 U.S.C.
§ 4311(a), the appellant must show that he performed, applied to perform, or
was obligated to perform duty in a uniformed service of the United States; and
make nonfrivolous allegations that: (1) he was not separated from uniformed
service with a dishonorable or bad conduct discharge or under other than
honorable conditions, and was not dismissed under
10 U.S.C. § 1061(a) or
dropped from the rolls pursuant to 10 U.S.C. § 1161(b); (2) he lost a benefit of
employment or any of the rights protected by USERRA; and (3) the performance,
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application to perform, or obligation to perform duty in the uniformed service was
a substantial or motivating factor in the loss of the right or benefit. Nonetheless,
an appellant need not explicitly invoke USERRA to raise a valid claim under the
law. McAfee v. Social Security Administration,
88 M.S.P.R. 4 (2001). A claim
should be “broadly and liberally” construed in determining whether it is
nonfrivolous.
Perkins v. U.S. Postal Service, 85 M.S.P.R. 545 (2000). Although
the appellant has the burden of proof, once he has presented a prima facie case,
the agency may then attempt to avoid relief by showing that it would have taken
the same action despite the appellant’s military service. A claim may not be
raised relating to benefits under the Thrift Savings
Plan. 38 U.S.C. § 4322(f).
(2) 38 U.S.C. § 4311(b) provides for redress as to a claim of discrimination or
retaliation because a person “(1) has taken an action to enforce a protection
afforded any person under [38 U.S.C. chapter 43], (2) has testified or otherwise
made a statement in or in connection with any proceeding under [that] chapter,
(3) has assisted or otherwise participated in an investigation under [that]
chapter, or (4) has exercised a right provided for in [that] chapter.” In a
USERRA discrimination or retaliation appeal, the agency’s intent must be proven.
Unlike section 4311(a), this prohibition against retaliation applies regardless of
whether the person has performed service in the uniformed services.
38 U.S.C.
§ 4311(b). To establish Board jurisdiction over an appeal alleging a violation of
this provision of USERRA, the appellant must make nonfrivolous allegations that:
(1) he took action to enforce a protection afforded any person under chapter 43
of title 38 of the U.S. Code, gave testimony or made a statement in or in
connection with any proceeding under that chapter, rendered assistance or
otherwise participated in an investigation under that chapter, or exercised a right
provided for in that chapter; and (2) his action was a substantial or motivating
factor in the agency action that he claims is discrimination or retaliation. The
agency may then attempt to show that it would have taken the same action
absent the appellant’s protected action.
An appellant claiming that he was
discriminated against based on a disability arising from his military service
will not establish Board jurisdiction over a USERRA appeal. Mims v. Social
Security Administration, 120 M.S.P.R. 213, 225 (2013);
McBride v. U.S. Postal
Service, 78 M.S.P.R. 411, 415 (1998)
.
(3) 38 U.S.C. §§ 4312-4318 grant certain reemployment rights after uniformed
service. A person who claims that the agency failed to meet its reemployment
obligations must not have been separated from uniformed service with a
dishonorable or bad conduct discharge or under other than honorable conditions,
dismissed under
10 U.S.C. § 1061(a), or dropped from the rolls pursuant to
10 U.S.C. § 1161(b); further, in most instances, “the person [must have] given
advance written or verbal notice of such service to such person’s employer.”
38 U.S.C. § 4312(a)(1). A person claiming a right to reemployment under
38 U.S.C. §§ 4312-4318 also must show that he was not absent in excess of five
years after the December 12, 1994 effective date of 38 U.S.C. § 4312(a)(2) and
did not abandon his civilian employment in favor of a military career. The 5-year
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period, however, may be extended for the several reasons set out in 38 U.S.C.
§ 4312(c). Unlike USERRA discrimination cases, it is the agency that bears the
burden of proof in reemployment cases.
As to all USERRA appeals, the claim should be broadly and liberally construed in
determining whether it is nonfrivolous. Tindall v. Department of the Army,
84 M.S.P.R. 230, ¶ 6 (1999). The weakness of the assertions in support of the
claim is not a basis to dismiss the USERRA appeal for lack of jurisdiction. Id.
“Rather, if the appellant fails to develop his contentions, his USERRA claim should
be denied on its merits.” Id.
Butterbaugh appeals - a subset of section 4311
(a) appeals involves claims based
on improperly charged military leave. Prior to the 2000 amendment to 5 U.S.C.
§ 6323, the government’s standard practice was to charge guard and reserve
members military leave for every day they were away on guard or military
training duty, even if they were not scheduled to work some of those days.
However, in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir.
2003), the court held that this practice was contrary to section 6323 and
constituted the denial of a benefit of employment in violation of USERRA. In
Garcia v. Department of State, 101 M.S.P.R. 172 (2006), the Board held that it
has jurisdiction under USERRA, as amended by the Veterans Programs
Enhancement Act of 1998, to adjudicate allegations of improper military leave
charges by employing agencies, even if they concern military leave denials
predating the enactment of USERRA. It limited relief, though, to reimbursement
for any civilian leave that the appellant was required to use as a result of an
improper charge of military leave. However, because military leave afforded by
5 U.S.C. § 6323(a) is a benefit of employment, the court in Pucilowski v.
Department of Justice, 498 F.3d 1341 (Fed. Cir. 2007), reversed the Board’s
holding that it lacked the authority to order the correction of records to reflect a
proper accounting of the appellant’s military leave. Nonetheless, the Board still
imposes strict proof requirements on the appellant in these cases, which the
court has upheld. In doing so, though, the court has stated that “while not
legally obligated to do so, agencies may resolve claims for improper military
leave charges by providing more compensation than an individual has been able
to prove.” Pucilowski, 498 F.3d at 1345. Because agencies are now aware of the
legal requirements concerning their charging of leave, few Butterbaugh cases are
filed, and those that are may be subject to settlement in light of the
requirements of that decision.
b. VEOA. Two separate claims may be brought under VEOA.
(1) 5 U.S.C. § 3330a(a)(1)(A) provides that a jurisdictional claim under the VEOA is
one that a Federal agency violated a preference eligible’s rights under any statute
or regulation relating to veterans’ preference. To establish VEOA jurisdiction over
an appeal concerning a complaint filed under
5 U.S.C. § 3330a(a)(1)(A), the
appellant must establish that he exhausted his Department of Labor remedy and
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make nonfrivolous allegations that (i) he is a preference eligible within the
meaning of the VEOA, (ii) the actions at issue occurred on or after the
October 30, 1998 enactment date of the VEOA, and (iii) the agency violated his
rights under a statute or regulation related to veterans’ preference. “Preference
eligible” is defined at 5 U.S.C. § 2108(3). Although 5 C.F.R. § 1208.23(a)(3)
states that the appellant must also identify the statute or regulation that
allegedly was violated, explain how it was violated, and state the date of the
violation, the Board has stated that an appeal should not be dismissed for the
sole reason that the appellant fails to identify a specific law or regulation relating
to veterans’ preference that he or she believes was violated. See
Young v.
Federal Mediation and Conciliation Service, 93 M.S.P.R. 99 (2002).
(2) 5 U.S.C. § 3304(f)(1) states that preference eligibles and, contrary to the general
VEOA rule, veterans, see 5 U.S.C. § 2108(1), who have been separated from the
armed forces under honorable conditions after 3 years or more of active service
may not be denied the opportunity to compete for vacant positions for which the
agency making the announcement will accept applications from individuals
outside its own workforce under merit promotion procedures. That the agency
did not, in fact, consider any external candidates does not defeat the claim to
consideration. Boctor v. U.S. Postal Service, 110 M.S.P.R. 580 (2009). Such
persons have the right to file a complaint with the Secretary of Labor under
5 U.S.C. § 3330a(a)(1)(B) and subsequently file an appeal with the Board. To
establish the Board’s VEOA jurisdiction over an appeal concerning a complaint
filed under
5 U.S.C. § 3330a(a)(1)(B), the appellant must establish that he
exhausted his Department of Labor remedy and make nonfrivolous allegations
that (i) he is a veteran described in
5 U.S.C. § 3304(f)(1) or a preference eligible,
(ii) the agency denied him the opportunity to compete under merit promotion
procedures for a vacant position for which the agency accepted applications from
individuals outside its own workforce, and (iii) the denial occurred on or after the
December 10, 2004 enactment date of the law that provides this right. See
Styslinger v. Department of the Army, 105 M.S.P.R. 223 (2007); Jolley v.
Department of Homeland Security, 105 M.S.P.R. 104 (2007).
Subsection 4, below, addresses the exhaustion and timeliness requirements that
are also prerequisites to VEOA appeals. See
Sherwood v. Department of
Veterans Affairs, 88 M.S.P.R. 208 (2001); Smyth v. U.S. Postal Service,
89 M.S.P.R. 219 (2001), aff’d, 41 F. App’x 475 (Fed. Cir. 2002).
3. AFFIRMATIVE DEFENSES.
The Board has held that it lacks authority, under both USERRA and VEOA, to hear any
affirmative defense where the jurisdictional basis for the appeal is USERRA or VEOA itself.
See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285 (2001) (USERRA);
Ruffin v.
Department of the Treasury, 89 M.S.P.R. 396 (2001) (VEOA). Although the Federal Circuit’s
decision in Kirkendall v. Department of the Army 479 F.3d 830 (Fed. Cir. 2007), discusses
the applicability of 5 U.S.C. § 7701 to USERRA and VEOA appeals, in Davis v. Department of
Defense, 105 M.S.P.R. 604 (2007), the Board reaffirmed the conclusions in Metzenbaum
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and Ruffin and held that it continues to lack jurisdiction to consider claims of prohibited
personnel practices in cases brought under both statutes.
4. TIME LIMITATIONS, TIMELINESS, AND EXHAUSTION.
a. USERRA. The law applies to any appeal filed on or after October 14, 1994, without
regard to whether the alleged violation occurred before, on, or after that date.
However, the substantive provisions of USERRA are not retroactive beyond
October 14, 1994, i.e., they do not make illegal any act or conduct that was not
prohibited prior to that date, but when an agency’s action violated a substantive
provision that was in effect prior to that date, the claim is cognizable under USERRA.
Williams v. Department of the Army, 83 M.S.P.R. 109 (1999). Under the law, the
appellant may file an appeal directly with the Board or may first seek relief from the
Secretary of Labor. If the appellant chooses the latter course, that remedy must be
exhausted by awaiting notification from the Secretary that the complaint has not
been resolved. Whether the appellant files directly with the Board or goes first to
the Secretary of Labor, there is no time limit for filing a Board appeal.
5 U.S.C.
§ 4324(b); 5 C.F.R. § 1208.12. The Board has also held that if the appeal raising
the USERRA issue concerns an “otherwise appealable matter” but it is untimely under
5
U.S.C. § 7701, it should be treated strictly as a USERRA appeal to avoid the time
limit. Holmes v. Department of Justice, 92 M.S.P.R. 377 (2002).
b. VEOA. The law applies only to violations of veterans’ preference rights that
happened on or after October 31, 1998. Unlike USERRA, VEOA contains specific
exhaustion and timely filing requirements. The exhaustion provisions of VEOA
require the appellant first to seek a remedy from the Secretary of Labor, within
60 days of the date of the alleged violation, and to allow the Secretary at least
60 days to resolve the complaint. 5 U.S.C. § 3330a(a); 5 C.F.R. § 1208.21. Then
the Secretary of Labor must have sent the appellant written notification that efforts
to resolve the complaint were unsuccessful or at least 60 days must have elapsed
from the date the complaint was filed if no written notification had yet been issued.
In the latter situation, the appellant must have provided written notification to the
Secretary of Labor of the intent to file an appeal with the Board to have exhausted
the administrative remedies with DOL. If the appellant has received notice from the
Secretary, the appeal must be filed within 15 days from receipt. 5 U.S.C.
§ 330a(d)(1)(B).
The Board had previously held that the time limit for filing an appeal under VEOA
may not be waived for good cause shown; that the Board cannot consider a VEOA
appeal when it is undisputed that the appellant submitted his complaint to the
Department of Labor beyond the 60-day statutory deadline and Labor rejected the
complaint as untimely without considering its substance; and that it lacks the
authority to determine whether the Secretary of Labor should have waived the
deadline. However, in Kirkendall, the court held that the time limits under VEOA,
both to file with the Secretary of Labor and to file an appeal with the Board from the
decision of the Secretary, are subject to equitable tolling. Thus, the Board’s
regulations now provide that in extraordinary circumstances, both the appellant’s
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60-day deadline for filing with the Secretary of Labor and the 15-day deadline for
filing an appeal with the Board are subject to the doctrine of equitable tolling when,
despite having diligently pursued his or her appeal rights, the appellant was unable
to make a timely filing with the Board due to deception by the opposing party or
where the appellant filed a defective pleading during the statutory period. 5 C.F.R.
§§ 1208.21(b), 1208.22(c).
c. For both USERRA and VEOA appeals that are dismissed without prejudice, case law
mandates that refiling be done automatically by the RO or FO rather than burden the
appellant with the timeliness concern. See Milner v. Department of Justice,
87 M.S.P.R. 660, ¶ 13 (2001) (USERRA); Gingery v. Department of the Treasury,
111 M.S.P.R. 134, ¶ 13 (2009) (VEOA).
5. REPRESENTATION.
Under USERRA, the Special Counsel may represent the appellant. The appellant must first
have requested that the Secretary of Labor refer the complaint to OSC. Any written
statement that the Secretary did so, and that the Special Counsel agreed to be the
representative, will be accepted as the written designation of representative required by
5 C.F.R. § 1201.31(a). See 5 C.F.R. § 1208.14
.
6. HEARING.
a. USERRA: Here, too, Kirkendall
has changed the law. While the Board had previously
stated that the AJ may grant a hearing request once jurisdiction over the appeal is
established, the court held that a USERRA appellant has the right to a hearing, so
that “any veteran who requests a hearing shall receive one.” Thus, the Board lacks
authority to deny a hearing request on a complaint filed under USERRA once the
appellant has established Board jurisdiction over the appeal. Indeed, the AJ may
grant a hearing to resolve disputed jurisdictional issues. See
5 C.F.R. § 1208.13(b).
b. VEOA: The rule that a hearing is required does not apply to VEOA. Here, the court
did not discuss the Board’s regulation specifying that if the appellant requests a
hearing, the AJ may grant the request once jurisdiction over the appeal is
established.
5 C.F.R. § 1208.23(b). The Board then held in Davis v. Department of
Defense, 105 M.S.P.R. 604 (2007), that it retains the authority to grant or deny a
hearing in a VEOA appeal even after the court’s decision “once the Board’s
jurisdiction over the appeal is established and it has been determined that the appeal
is timely.” 5 C.F.R. § 1208.23(b). Although the regulation does not set out
requirements for the hearing, the Board has held that if the appellant establishes a
genuine dispute of material fact, he is entitled to a hearing under VEOA. Therefore,
if the appellant requests a hearing, when there are significant factual issues that
must be resolved, when it appears that the resolution of those issues can best be
accomplished through the testimony of witnesses who will be subject to examination
and cross-examination, and when there are likely to be issues of credibility to resolve
in deciding the merits issues, the AJ should likely grant a hearing. The Board has
stated that if the written submissions show that there is “a factual dispute material
to the appellant’s VEOA claims,” a hearing should be granted, but that a hearing
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is not appropriate when the only VEOA issues to be resolved are legal matters. See
Sherwood
v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001). If there
is no hearing in an appeal when any of those factors may apply, the AJ should
document the record explaining why the hearing is not necessary, so that the Board
will know the bases for the AJ’s exercise of discretion if a party files a PFR.
7. BURDENS OF PROOF.
a. USERRA. If the claim at issue is under section 4311(a), the appellant must show by
preponderant evidence that his uniformed service was a substantial or motivating
factor in the agency’s decision to take the action in question. The exception to this
rule is that if it is undisputed that the agency took the challenged action only
because of the appellant’s military service, for example, by denying leave for a
military obligation, he must show instead that he was denied a benefit of
employment under
38 U.S.C. § 4311(a).
For claims under section 4311(b), the appellant must show that his protected activity
under 38 U.S.C. chapter 43 was a substantial or motivating factor in the alleged
discrimination or retaliation. Then, the agency must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status. Thus,
the burden of proof is not that of title VII of the Civil Rights Act, but that set forth in
National Labor Relations Board v. Transportation Management Corporation, 462 U.S.
393, 401 (1983). See Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir.
2001);
Fox v. U.S. Postal Service, 88 M.S.P.R. 381 (2001).
In contrast, a USERRA reemployment claim under
38 U.S.C. §§ 4312-4318 does not
depend on the agency’s motivation, and it is the agency that bears the burden of
proving by a preponderance of the evidence that it met its statutory obligations.
b. VEOA. See section 2b of this chapter, above. In the context of a VEOA appeal when
the appellant claimed that the agency violated 5 U.S.C. § 2302(b)(11), which
proscribes certain acts if they would violate a veterans’ preference requirement, that
to establish that the agency committed a prohibited personnel practice in violation of
5 U.S.C. § 2302(b)(11), the appellant would have to show that an agency employee
knowingly took, recommended, or approved, or knowingly failed to take,
recommend, or approve, a personnel action that violated a veterans’ preference
requirement.
Villamarzo v. Environmental Protection Agency, 92 M.S.P.R. 159
(2002). Section 2302(e)(1) lists several statutes that constitute a “veterans’
preference requirement” for purposes of
5 U.S.C. § 2302(b)(11), which makes it a
prohibited personnel practice to take, fail to take, or recommend certain actions in
violation of a “veterans’ preference requirement.”
8. ELECTIONS TO TERMINATE.
Under VEOA, an appellant may, at any time beginning on the 121st day after filing a Board
appeal, and in the absence of a judicially reviewable Board decision, elect to terminate the
Board proceeding. In lieu of the Board appeal, the appellant may file a civil action in an
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appropriate U.S. District Court. The termination, which is effective immediately on receipt,
must be filed with the AJ and served on the other parties. 5 C.F.R. § 1208.24(a)
.
Despite its automatic effective date, a termination order must be issued to document the
termination, and to specify its effective date. Because the Board does not consider it to be
either an initial or final Board decision, it is subject to neither a PFR nor a PFE, and is also
not appropriate for judicial review by the Federal Circuit. 5 C.F.R. § 1208.24(b)
. Thus, the
normal review rights that accompany IDs should not be provided.
No similar provision for short-cutting the appellate process is available under USERRA.
9. ADDITIONAL APPEALS.
a. USERRA. Nothing in the statute prevents the filing of a claimed violation of USERRA
in an appeal under any other law, rule, or regulation. Rather than being the cause of
action, though, the Board will treat the claim as an affirmative defense that the
agency’s action was not in accordance with the law. See
Morgan v. U.S. Postal
Service, 82 M.S.P.R. 1 (1999). Although this decision was overruled in part by Fox,
supra, as to the burden of proof issue, its rulings concerning the manner in which
USERRA as an affirmative defense will be treated remain valid.
Looked at differently, in
Russell v. Equal Employment Opportunity Commission,
104 M.S.P.R. 14 (2006), the Board noted that while 5 U.S.C. § 7121(g) generally
requires an employee to elect between filing a grievance under a CBA, filing a Board
appeal, or seeking corrective action from the Special Counsel under
5 U.S.C. § 1221,
38 U.S.C. § 4302(b) prohibits “any contract, agreement … or other matter” limiting
an appellant’s right to bring a USERRA claim before the Board. The Board concluded
that the exclusivity provision of section 7121(g) must fall in the face of the USERRA
requirement as, essentially, an “other matter.” USERRA supersedes the CBA and
permits the appellant to bring an appeal of a matter that is not otherwise appealable
outside of USERRA, i.e., one concerning the location at which she was reemployed
after her military service ended. However, in Pittman v. Department of Justice,
486 F.3d 1276 (Fed. Cir. 2007), the Federal Circuit addressed a question the Board
specifically left open, and held that where the appellant filed a grievance of his
removal, which was an otherwise appealable matter under 5 U.S.C. chapter 75, he
was barred by
5 U.S.C. § 7121(e) from bringing the same claim to the Board under
USERRA. The court concluded that the appellant’s USERRA claims as to his removal
under
38 U.S.C. §§ 4311(a) and 4316(c) are “similar matters which arise under
other personnel systems” that he had previously elected to raise under the
negotiated grievance procedure.
5 U.S.C. § 7121(e). In its nonprecedential decision
in Russell, Russell v. Merit Systems Protection Board, 324 F. App’x 872, 875 (Fed.
Cir. 2008), the court discussed both of those decisions and found that while Pittman
involved a case where the appellant could elect to file a grievance, Russell was bound
by the CBA to file a grievance but that the “CBA grievance procedure mechanisms
clearly fall within the meaning of a ‘contract, agreement … or other matter’ that
cannot ‘reduce, limit, or eliminate’ a petitioner’s right to bring a USERRA
reemployment claim at the Board. Thus, as required by the plain language of
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section 4302(b), Russell’s statutory right to appeal the reemployment matter to the
Board is not affected by the CBA’s requirement that she file a grievance because the
CBA cannot impose a requirement that the employee grieve a USERRA matter.
USERRA’s legislative history also confirms this result. See H.R. Rep No. 103-65,
at 20 (1993), as reprinted in 1994 U.S.C.C.A.N. 2449, 2453.’ ”
b. VEOA. The statute specifies that, as an alternative to filing an appeal under VEOA,
an appellant may pursue redress in a direct appeal to the Board from any action that
is appealable under any other law, rule, or regulation. The appellant may not,
however, pursue both an appeal under such other law, rule, or regulation and one
under VEOA at the same time.
5 U.S.C. §§ 3330a(e)(1), (2). In Sears v.
Department of the Navy, 88 M.S.P.R. 31, 34, ¶¶ 5, 6 (2001), the Board explained
that this provision means that a preference eligible who is separated by RIF may
pursue a claimed violation of his or her preference rights through the
5 U.S.C.
§ 3330a process, but cannot also pursue the claimed violation through a RIF appeal
to the Board. On the contrary, however, in the same case, the Board found
preclusion was inapplicable when the appellant was pursuing both a VEOA appeal
claiming that his veterans’ preference rights were violated when the agency
separated him to hire a nonveteran, and a USERRA appeal, in which he claimed that
he had been separated because of his veteran status. Only the former alleged a
violation of a veterans’ preference statute, so both appeals could progress
simultaneously. Nonetheless, the Board recognized that the outcome of one appeal
could affect the other, and it joined the appeals before remanding them
for adjudication.
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APPENDIX A - MODEL INSTRUCTIONS FOR BROADCAST COVERAGE
Information for Reporters
While the U.S. Merit Systems Protection Board has several statutory functions dealing with
the protection of the Federal personnel service, or merit systems, the Board’s role as
adjudicator of Federal employee appeals relating to job actions taken against those
employees is its main responsibility. In fact, this is by far the largest part of the Board’s
work in terms of workload and resources applied. The Board is a quasi-judicial agency.
Appeals from the Board’s decisions in non-mixed appeals go to the U.S. Court of Appeals for
the Federal Circuit, except that appeals involving whistleblowing currently may be appealed
to any U.S. court of appeals. Non-mixed appeals are those that do not include an allegation
of discrimination prohibited by section 717 of the Civil Rights Act of 1964, section 6(d) of
the Fair Labor Standards Act of 1938, section 501 of the Rehabilitation Act of 1973, or
sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (i.e., race, color,
religion, sex, national origin, age, or disability). Appeals from mixed cases, those which do
include such a claim, go to a U.S. district court for a trial de novo.
Coverage of a Board hearing by the electronic media and still photography are subject at all
times to the authority of the administrative judge (AJ) to control the conduct of the
proceedings, to ensure decorum and prevent distractions, and to ensure the fair
administration of justice. The media must act at all times as if they were in a court room
and must show the AJ and the parties the respect appropriate to that setting. The following
guidelines set forth conditions and limitations that must as a general rule be observed by
the media if coverage is to be permitted. AJs may modify or allow exceptions to these
requirements, but must make sure that the media coverage will be unobtrusive, will not
distract participants, and will not otherwise interfere with the administration of the hearing.
Questions to the AJ concerning the case are inappropriate. The Board will try to make
someone else who is knowledgeable available to you to answer general questions and to
provide appropriate background material for you. However, it would still be inappropriate to
ask that person, or anyone at the Board, questions that might require judgments on issues
involved in the hearing.
Sometimes a hearing may need to be closed, although the vast majority of Board hearings
are open to the public and press. Circumstances in which we would close a hearing include
the following noncomprehensive list:
a. When either party presents convincing arguments for closing a hearing with which
the AJ agrees;
b. When issues of national security are involved;
c. When minor children are involved.
Specific Instructions for Hearing Coverage.
1. Conferences of Counsel. There must be no audio recordings or broadcast of
conferences between counsel, between counsel and the parties, and between counsel
and the AJ held at the bench.
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2. Impermissible Use. Generally, none of the film, video tape, still photographs, or
audio reproductions developed during or by coverage of a Board proceeding shall be
admissible as evidence in that or any subsequent Board proceeding. Moreover, no
coverage of the testimony taken at the hearing may be made available to the parties
or the public before the hearing is closed, to avoid influencing witnesses who
have not yet testified.
3. Equipment and Personnel. The AJ will not permit more than one portable television
camera or video tape electronic camera and its operator and one still photographer
in the hearing at one time. Audio pickup must be accomplished from existing audio
systems present in the hearing room. If no suitable audio system exists,
microphones and wiring essential for media purposes must be unobtrusive and
located in places designated or approved by the AJ. Pooling arrangements are the
sole responsibility of the media. The AJ generally will not resolve any disputes and
will exclude all contesting media personnel from the hearing.
4. Sound and Light. Only television photographic and audio equipment and still camera
equipment which do not produce distracting sound or light may be used. No artificial
lighting is allowed. Media personnel must demonstrate to the AJ that their
equipment meets these sound and light criteria.
5. Location and Movement. The AJ designates the position for television equipment and
still camera photographers. The designated area will provide reasonable access to
coverage. Photographic or audio equipment may only be placed in the hearing room,
or removed from it, when the hearing is not in session. While the hearing is in
session, broadcast media representatives are not permitted to move about and must
not change film, video tape, or lenses. Still camera photographers may move about
to obtain photographs only if specifically authorized by the AJ.
6. Review of an Order Excluding Coverage. Review of an AJ’s order excluding the
electronic media from access to a hearing or excluding coverage of a particular
participant may be requested from the Regional Director of the office processing
the case.
7. Further Information. Our Regional Director is __________________________.
Should you have any problems or questions concerning this hearing that have not
been answered, please contact him or her. If you have any question about the
Board’s Washington headquarters operations or other Board matters, please
contact
the Office of the Clerk of the Board at (202) 653-7200 or mspb@mspb.gov
. Additional
information may also be obtained at the Board’s website, www.mspb.gov. Any
request for documents from the case file must be made in writing and meet the
requirements of the Freedom of Information Act (FOIA). FOIA requests may be
submitted electronically via
https://www.mspb.gov/foia/request.htm, or sent to the
attention of the FOIA Officer, Office of the Clerk, 1615 M Street, N.W.,
Washington, D.C. 20419.
Admission of the press is at the discretion of the AJ adjudicating the case. The Board’s
general policy is that all cell phones, text devices, and all other two-way communications
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devices shall be powered off in the hearing room, and that no cameras, recording devices,
and/or transmitting devices may be operated, operational, and/or powered on in the
hearing room. Thus, your presence at the hearing represents a departure from the usual
process in return for which your complete cooperation is required.
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Appendix B
125
APPENDIX B - MODEL INSTRUCTIONS FOR WITNESSES
Information for Witnesses
You have been requested to testify in an appeal hearing before Administrative Judge
________________________ of the Merit Systems Protection Board.
As a prospective witness, you must remain outside the hearing room until you are called to
testify. When you are called, go to the witness chair and remain standing until you are
sworn in by the Administrative Judge or court reporter. If you have religious convictions
against giving testimony under oath, you will be permitted to affirm to the truthfulness of
your testimony.
You will be asked questions first by the representative of the party who requested your
appearance and then by the other representative. The Administrative Judge may have
questions for you as well. Please answer the questions fully but do not volunteer
information not asked for. If you do not understand a question, you may ask for
clarification. If an objection is raised to a question, wait to answer until after the
Administrative Judge has ruled on the objection. Please answer the questions verbally and
do not respond by gestures, such as nodding. Speak up so that the other people present
can hear your answers because the microphone is for recording your testimony, not
for amplification.
Following your testimony, you will be excused unless one of the parties requests that you
remain as a potential rebuttal witness. In that case, you will be advised to return to the
witness waiting area. Whether or not you are designated a potential rebuttal witness, you
must not discuss your testimony with the other witnesses in this appeal until after the
hearing has concluded entirely.
Unless otherwise announced, the hearing is open to the public. If you are not requested to
remain available as a rebuttal witness or are not obligated to return to your regular work,
you may quietly observe the remainder of the hearing as a member of the public.
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126
APPENDIX C - ALPHABETICAL INDEX TO AJ HANDBOOK
Chapter/Section Titles
Chapter
Section
Acknowledgement Orders
3
8
Addendum Decisions - Attorney Fees
13
2,3
Addendum Decisions - Attorney Fees - WPA
15
8
Addendum Decisions – Compensatory Damages
13
6,7
Addendum Decisions – Compliance/Enforcement
13
4,5
Addendum Decisions – Consequential Damages
13
6,7
15
9
Addendum Decisions – General
13
1
Affidavits – Hearing
10
14
Affirmative Defenses – Prehearing/Status Conference
9
6
Affirmative Defenses – USERRA/VEOA
18
2
Agency Name in Case Caption
2
5
AJ – Assignment
3
1
AJ – Avoiding Prohibited Ex Parte Communications
14
4
AJ – Classified Information Responsibility
17
2
AJ – Discovery Authority
8
9
AJ – Disqualification
3
2
AJ – Hearing, Role and Conduct during
10
1
10
18
AJ – Voluntary Discovery, Responsibility
8
4
AJ Handbook – Abbreviations, Acronyms, Definitions
1
3
Amicus Curiae
3
5
Amicus Curiae – Hearing
10
7
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Analysis and Findings – In the Initial Decision
12
2
Analysis – Whistleblower Appeals
15
7
Appeal – Public Interest
3
7
Appeal – Class Actions
3
4
Appeal – Interlocutory
6
1-4
Appeal - Incomplete
2
2
Appeal – Organization of the Appeal File
3
11
Appeal – Philippine Retirement
3
9
Appeal – Pseudonymous (appellant seeks anonymity)
2
5
Appeal – Receipt
2
1
Appeal – Rejection
2
2
2
3
Appeal – Review
2
2
Appeal – Sensitive
3
6
Appeal – USERRA/VEOA
18
1-9
Appeal – WPA
15
1-9
Appeal File – Organization of
3
11
Appellants – Incompetence
2
8
Attorney Fees
13
2
Attorney Fees - Mixed Cases
13
2
Attorney Fees - Moot Appeal
13
2
Attorney Fees – USERRA/VEOA
13
18
2
1
Attorney Fees – Whistleblower Appeals
15
9
Attorney Fees - see Witness Fees
10
12
Bench Decisions
10
7
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12
5
Briefs – or Written Arguments at Hearing
10
5
Broadcast Coverage – Hearing
Appendix
A
10
4
Case Caption
2
5
Case-in-Chief – Hearing
10
8
Certificate of Service – Initial Decision
12
4
Citation – Rules of
12
6
Class Actions
3
4
Classified (National Security) Information
17
2
Close-out of Cases
12
9
Closing the Record – Hearing
10
16
Closing Statements – Hearing
10
9
Closing and Coding Decisions
12
9
Compensatory Damages
13
6,7
Compliance
13
4,5
Conferences – Purposes, Prehearing/Status
9
1
Congressional Inquiries and Referrals
2
9
Consequential Damages
13
6,7
15
10
Consolidation and Joinder
3
3
Content – Appeal, Review of
2
2
Correction of Hearing Tapes
10
18
Court Reporter Contracts
4
5
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Depositions – Discovery
8
3
Depositions – Hearing
10
14
Discovery – AJ Authority
8
9
Discovery – Federal Rules of Civil Procedure
8
2
Discovery – Forms of
8
3
Discovery – General
8
1
Discovery – Motions to Compel
8
8
Discovery – Premature Filings
8
6
Discovery – Requests
8
5
Discovery – Time Limits for
8
7
Discovery – Voluntary
8
4
Electronic Signature
12
2
Enforcement – Settlement
11
6
Enforcement – Petitions for
13
5
Erratum Notices
12
3
Evidence – Presentation of, Admission, Hearing
10
14
Ex Parte Communications – Decision-Making Personnel
14
1
Ex Parte Communications – General
14
1
Ex Parte Communications – Interested Party
14
1
Ex Parte Communications – Placement in Record
14
3
Ex Parte Communications – Prohibited, Avoiding
14
4
Ex Parte Communications – Prohibitions
14
2
Ex Parte Communications – Sanctions
14
3
Exhibits – Hearing
10
14,15
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Fax Submissions
3
12
Federal Circuit Notice – Initial Decision
12
4
Federal Circuit Notice – VEOA Termination
18
8
FOIA – Third-Party Requests Under
17
4
Hearing – AJ Role and Conduct
10
1
Hearing – Bench Decisions
10
17
Hearing – Broadcast Coverage Instructions
Appendix
A
Hearing – Broadcast of
10
4
Hearing - Certification by Court Reporter
10
20
Hearing – Closing the Record
10
16
Hearing – Conditional or Ambiguous Requests
4
2
Hearing – Conduct of Parties
4
11
Hearing – Exhibits
10
14,15
Hearing – Failure to Appear
4
12
Hearing – Location
4
6
Hearing – Notice Use
4
3
Hearing – Notice of/Notice to Court Reporter
4
5
Hearing – Notice, Advance
4
4
Hearing – Obstreperous Conduct
10
11
Hearing – Off the Record Discussions
10
13
Hearing – Order of Business
10
9
Hearing – Participants
10
7
Hearing – Postponement, Motions for
4
9
Hearing – Preliminary Conference
10
2
Hearing – Presentation of Evidence
10
14
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Hearing – Public
4
10
10
3
Hearing – Requests
4
1,2
Hearing – Size of and Access to Hearing Room
10
5
Hearing – Taped Record of
10
18
Hearing - Taped Record of, Correction
10
18
Hearing - Taped Record of, Reporter Contracts
4
5
Hearing – Technical Advisors
10
7
Hearing – Telephonic Hearings
4
7
10
6
Hearing – Transcripts
10
19
Hearing – Use of Hearing Notice
4
3
Hearing – USERRA/VEOA
18
5
Hearing – Video Hearings
4
8
10
6
Hearing – Witnesses
10
12
Hearing – Written Submissions in Addition to
10
15
Incompetence – Appellants
2
8
Initial Decision – Bench Decisions
10
16
12
5
Initial Decision – Distribution of
12
4
Initial Decision – General
12
1
Initial Decision – Organization of
12
2
Initial Decision – Quality Review of
12
3
Initial Decision – Rules of Citation
12
6
Initial Decision – Style
12
7
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Interim Relief – In Initial Decision
12
2
Interlocutory Appeals – Criteria for Certifying
6
2
Interlocutory Appeals – General
6
1
Interlocutory Appeals – Procedures
6
3
Interlocutory Appeals – Stays Pending
6
4
Interrogatories – Discovery
8
3
Intervenors – Hearing
10
7
Intervention – General
3
5
Joinder and Consolidation
3
3
Judges’ Handbook – Purpose
1
1
Jurisdiction – Appeal Review
2
2
Jurisdiction – In Initial Decision
12
2
Jurisdiction – USERRA/VEOA
18
2
Jurisdiction vs. Merits – Whistleblower Appeals
15
6
Mootness - Rescission of Appealed Action
2
2
Motion – Attorney Fees
13
2,3
Motion – Attorney Fees/Compensatory Damages,
Petition for Enforcement at Prehearing
9
8
Motion – Compensatory/Consequential Damages
13
6,7
15
9
Motion – Discovery, to Compel
8
8
Motion – Disposition of at Hearing, Objections
10
10
Motion – Hearing Postponement
4
9
Motion – Subpoena Enforcement
7
6
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Motion – To Quash or Limit Subpoena
7
5
Motions – Form of
5
1
Motions – Memorialization of Rulings
5
3
Motions – Ruling on
5
2
National Security (Classified) Information
17
2
Objections – Disposition at Hearing, Motions
10
10
Obstreperous Conduct – At Hearing
10
1
Off-the-Record Discussions – Hearing
10
13
Official Notice – Hearing Evidence
10
14
Opening Statements – Hearing
10
9
OPM – Obligation to Furnish with Information
3
10
Oral Arguments – Settlement
11
7
Order – of Initial Decision
12
2
Parties – Substitution of
2
4
Petitions for Enforcement
13
5
Prehearing/Status Conference – Affirmative Defenses
9
6
Prehearing/Status Conference – Method of
9
4
Prehearing/Status Conference – Motion for Attorney Fees,
Compensatory Damages/Petitions for Enforcement
9
8
Prehearing/Status Conference – Number Required
9
3
Prehearing/Status Conference – Purposes
9
1
Prehearing/Status Conference – Record of
9
5
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Prehearing/Status Conference – Retirement Cases
9
7
Prehearing/Status Conference – Standard Orders
9
2
Premature – Appeal
2
2
Premature – Discovery Filings
8
6
Pro Se Appellants
2
7
Protective Orders
7
7
Pseudonymous Appeals (Appellant Seeks Anonymity)
2
5
Public Hearings
10
3
Public Interest Appeal
3
7
Quality Review – Initial Decision
12
3
Rebuttal and Surrebuttal – Hearing
10
9
Referral to Special Counsel
12
2
15
8
Reporters, Hearing - Contracts
4
5
Representation – General
2
6
Representation – USERRA
18
4
Representative – Multiple
10
7
Representative – Witness as
10
7
Rescission of Appealed Action - Mootness
2
2
Retirement – Appeal from Philippines
3
9
Retirement Cases – Prehearing/Status Conference
9
7
Review Rights – in Initial Decision
12
2
Rules of Citation
12
6
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Sanitization of Decisions
17
3
Sealed Cases
17
1
Sensitive Appeals
3
6
Sensitive Security Information (SSI)
12
2
17
5
Settlement – Acceptance into the Record
11
4
Settlement – Authority
11
5
Settlement – Dismissals on the Basis of
11
3
Settlement – Enforcement
11
6
Settlement – Options
11
9
Settlement – Oral Agreements
11
7
Settlement – Policy
11
1
Settlement – Timing
11
2
Signature - Hand Signed and Electronic
12
2
Statements – Production of at Hearing
10
14
Status Conferences
9
1-8
Stay Requests – Appeal Rights from an Order
16
4
Stay Requests – General
16
1
Stay Requests – Procedures for Ruling on
16
3
Stay Requests – Time of Filing
16
2
Stipulations – Hearing
10
14
Subpoena – Motions for Enforcement
7
6
Subpoena – Motions to Quash or Limit
7
5
Subpoena – Regulatory Citation
7
3
Subpoena – Timely Objections to
7
4
Substitution of Parties
2
4
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Sworn Statements
7
8
Taped Record – Hearing
10
18
Taped Record - Hearing, Correction of, Deletions to
10
18
Telephonic Hearings
10
6
Third-party Information – Sanitization of
17
3
Third-party Requests Under FOIA
17
4
Time Standard, Case Processing – 120-Day
1
2
Timeliness – Appeal Review
2
2
Timeliness – In Initial Decision
12
2
Timeliness – USERRA/VEOA
18
3
Transcripts – Hearing
10
19, 20
Unclassified but Sensitive Cases
17
6
Unperfected Stay Requests
16
3
USERRA – Additional Appeals
18
9
USERRA – Affirmative Defenses
18
3
USERRA – Attorney Fees/Expenses
13
18
2
1
USERRA - Burden of Proof
18
7
USERRA – Butterbaugh Appeals
18
2
USERRA – Exhaustion
18
4
USERRA – General
18
1
USERRA – Hearing
18
6
USERRA – Jurisdiction
18
2
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USERRA – Representation
18
5
USERRA – Timeliness
18
4
VEOA – Additional Appeals
18
9
VEOA – Affirmative Defenses
18
3
VEOA – Attorney Fees/Expenses
13
18
2
1
VEOA – Burden of Proof
18
7
VEOA – Exhaustion
18
4
VEOA – General
18
1
VEOA – Hearing
18
6
VEOA – Jurisdiction
18
2
VEOA – Termination of Appeal
12
1
18
8
VEOA – Timeliness
18
4
Voluntary Discovery
8
4
Vexatious Pleadings
2
10
Waiver – Prohibited Ex Parte Communications
14
4
Whistleblower Appeals – Analysis
15
7
Whistleblower Appeals – Attorney Fees
15
9
Whistleblower Appeals – Consequential Damages
13
6,7
15
10
Whistleblower Appeals – Elections
15
4
Whistleblower Appeals – General
15
1
Whistleblower Appeals – IRA Appeals
15
3
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Whistleblower Appeals – Jurisdiction vs. Merits
15
6
Whistleblower Appeals - OAA
15
2
Whistleblower Appeals – Referral to OSC
12
2
15
8
Whistleblower Appeals – Time Limits, Appealing to Board
15
5
Witness Fees
10
12
Witnesses – As Representative
10
7
Witnesses – Hearing
10
12
Witnesses – Model Instructions for
Appendix
B
Witnesses – Obtaining (Hearings/Depositions)
7
2
Witnesses – Protective Orders
7
7
Witnesses – Requests for
7
1
Written Arguments – Or Briefs at Hearing
10
15
Written Submissions – In Addition to Hearing
10
15
