Conducting a Hearing

  

The Administrative Judge

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When an employee appeals to MSPB, the hearing official appointed is typically an administrative judge (AJ), although an administrative law judge (ALJ) may also be assigned. ALJs are selected and removed following different rules to ensure their independence. Some cases are required by statute to use an ALJ, while in others, the use of an ALJ is determined by agency regulations. It's important to note that most adverse action cases are heard by an AJ. For the sake of discussion, we will refer to the hearing official as an AJ, even though in rare cases, it may be performed by an ALJ. The AJ is responsible for creating MSPB's official record, conducting the hearing, and issuing a decision.

 

Pre-Hearing Activities

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The appellant is not obligated to request a hearing if they believe that the written record contains all necessary information. In such cases, they can waive their right to a hearing and ask for a decision based on the written record. Prior to the hearing, or if a hearing is not held, before the decision is issued, the parties engage in discovery, and the AJ holds a conference with them. These activities follow MSPB regulations and are similar to general practices in civil litigation, although with some distinct differences.

 

During the pre-hearing conference, the AJ explains MSPB procedures, facilitates discovery, identifies and narrows down the issues, obtains stipulations, discusses the possibility of settlement, rules on witnesses, and rules on exhibits. The AJ has broad discretion to exclude witnesses if their testimony is deemed irrelevant, immaterial, or repetitious. Similarly, the AJ has the authority to rule on the admission of exhibits and other evidence. To challenge an initial decision on the basis of the AJ's abuse of discretion regarding witnesses or evidence admission, the petitioning party needs to demonstrate that relevant evidence, which could have influenced the outcome, was disallowed.

 

Assessing the Evidence

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Hearing officials have extensive discretion in managing the case, although this discretion is not unlimited. The actions of the AJ must be in accordance with the law and cannot be arbitrary or capricious. In assessing the evidence, the AJ must follow certain guidance. For instance, when evaluating witness credibility, the AJ must utilize the Hillen factors. These factors include the witness's opportunity and capacity to observe the event, their character, any prior inconsistent statements, their bias or lack thereof, contradictions or consistencies with other evidence, the inherent improbability of their version of events, and their demeanor.

 

Once the AJ applies the Hillen factors, significant deference is given to their conclusions regarding witness credibility, particularly when based on an assessment of demeanor. The Federal Circuit has emphasized the importance of fairness in upholding the AJ's credibility findings. However, the Board may correct the AJ's incomplete or inconsistent findings and is free to re-weigh the evidence and reach a different conclusion when the decision is based on facts rather than demeanor. This authority extends to all aspects of the case, including jurisdiction, charges, and penalties.

 

To enable review by the Board and its reviewing court, the AJ's decision must include findings of fact, conclusions, and the reasons behind them. This comprehensive document, known as the "initial decision," is subject to further review.

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1See 5 C.F.R. § 930.201-211 (explaining the ALJ employment rules).  In contrast, an AJ employed by MSPB is subject to the same regulations and statutes for selection and removal as other MSPB attorneys (such as those who represent MSPB before the courts and those who advise Board members on cases where the Board renders its own decision).  Unlike an ALJ, the term “administrative judge” is a job title describing duties, not a separate class of employee.

2 See, e.g., 5 U.S.C. § 1215(a)(2)(c) (statute granting the employee the right to appear before the Board or an ALJ in a disciplinary action brought by the Office of Special Counsel).

3 See, e.g., 5 C.F.R. § 1201.13 (MSPB regulation establishing that cases involving MSPB employees will be heard by an ALJ with limited Board review because of the Board’s commitment to reducing its influence in a case where it may inherently have a potential interest in the outcome).

4 5 C.F.R. § 1201.41.

5 Ahlberg v. Department of Health and Human Services, 804 F.2d 1238, 1243 (Fed. Cir. 1986).  An appellant may only waive his right to a hearing by clear, unequivocal, or decisive action.  Further, the waiver must be an informed one.  An appellant’s waiver of the right to a hearing is informed when he has been fully apprised of the relevant adjudicatory requirements and options in his case.  Campbell v. Department of Defense, 102 M.S.P.R. 178, ¶ 5 (2006).

6 Discovery is the process by which each party requests evidence from the opposing party.  If a party refuses to provide information requested in discovery, the other party may ask the AJ to compel the refuser to produce the information.  MSPB’s discovery rules and processes are located at 5 C.F.R. § 1201.71-.75.

7 See Spezzaferro v. Federal Aviation Administration, 807 F.2d 169, 172, n.1 (Fed. Cir. 1986) (noting that “MSPB proceedings are not governed by the Federal Rules of Civil Procedure”); Tinsley v. Office of Personnel Management, 34 M.S.P.R. 70, 75 (1987) (explaining that the Board regards the Federal Rules of Civil Procedure as instructive, rather than controlling).

8 An exhibit is a document entered into the record as evidence.  Physical objects (such as a weapon or drugs) will typically not be admitted into the record, and instead a description stipulated by the parties will be used.  See U.S. Merit Systems Protection Board, Judge’s Handbook, Ch. 10 § 14(g), available at www.mspb.gov.

9 Bowen v. Department of the Navy, 112 M.S.P.R. 607, ¶ 17 (2009), aff’d, 402 F. App’x 521 (Fed. Cir. 2010).

10 See Wagner v. Environmental Protection Agency, 51 M.S.P.R. 337, 353 (1991) (explaining that even if the AJ erred in accepting the appellant’s exhibits, the agency has not shown how its substantive rights were prejudiced, and thus there was no need to resolve whether the AJ had, in fact, erred), aff’d, 972 F.2d 1355 (Fed. Cir. 1992).

11 Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013); Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005).  See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision).

12 Among other things, AJs have the discretion to:  grant additional time for discovery; grant a hearing request when the law does not automatically provide for one if the AJ deems it appropriate to resolve the case; determine the location for hearings; determine if the public should have access to the hearing; reject or grant motions to compel for discovery; determine the number of technical advisors that may participate; rule on the presence of any security officers in the hearing room; permit oral or written closing statements; retain withdrawn exhibits; decide if names in the public record should be sanitized to protect personal privacy; seal a file or portion thereof; and request interlocutory appeal decisions from the Board.  (When names are sanitized, it is often to protect innocent third parties.  For example, if an employee is fired for reasons related to an allegation of molesting a child who is a relative, then naming the offender in the case title has the side effect of also putting the victim’s identity in the public record.  Such cases will use the name “Doe” in lieu of the employee’s actual name.  The victim’s names in the initial decision may be replaced by initials or other letters or numbers that would protect the person from public identification.  Similarly, a portion of a file may be sealed to protect the confidentiality of certain documents.  An interlocutory appeal occurs when there is an issue of law (unrelated to the merits of the case) and confirming the AJ correctly interpreted the law will materially advance the further administration of the case.  The AJ has discretion to certify the question and situations warranting such certifications are rare.)  For more on how AJs perform their duties, see U.S. Merit Systems Protection Board, Judge’s Handbook, available at www.mspb.gov.

13 See, e.g., Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (holding “that it is an abuse of discretion to categorically exclude all witnesses offered to testify as to evidence” of a relevant issue); Chudson v. Environmental Protection Agency, 17 F.3d 380, 385 (Fed. Cir. 1994) (holding that the AJ abused her discretion by not permitting the appellant to elicit testimony from two individuals with personal knowledge relevant to the issue under appeal and a third witness who had expert testimony to offer).

14 Tiffany v. Department of the Navy, 795 F.2d 67, 70 (Fed. Cir. 1986) (citing 5 U.S.C. § 7703).

15 Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).

16 Haebe v. Department of Justice, 288 F.3d 1288, 1299 (Fed. Cir. 2002).  See, e.g., Leatherbury v. Department of the Army, 524 F.3d 1293, 1306 (Fed. Cir. 2008) (finding “that the Board failed to give the AJ the deference required by Haebe and impermissibly reversed the AJ’s credibility determination”).

17 Cf., International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (explaining that to be Constitutional, the exercise of jurisdiction over a party cannot “offend ‘traditional notions of fair play and substantial justice.’”)

18 Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).  But see 38 U.S.C. § 713 (removing from the Board the authority to review a decision reached by an AJ for a case involving an SES employee in the Department of Veterans Affairs when title 38 is used to take the action).

19 Long v. Social Security Administration, 635 F.3d 526, 530 (Fed. Cir. 2011) (citing Leatherbury v. Department of the Army, 524 F.3d 1293, 1304 (Fed. Cir. 2008)).

20 See Tierney v. Department of Justice, 717 F.3d 1374, 1378 (Fed. Cir. 2013) (explaining that, with the exception of credibility determinations, “[t]he Board is generally free to substitute its judgment for that of the AJ”).

21 5 C.F.R. § 1201.111(b)(1)-(2).