The Merit Systems Protection Board (MSPB) has never been known has an “employee friendly” adjudicative body, when judged by its rate of affirming agency actions – typically in the 70-75% range. But the Board’s recent report shows that winning an MSPB appeal is getting even harder. According to the MSPB’s latest Annual Report, 6,266 cases were appealed in FY 2004. Over half of all cases appealed to the Board were dismissed. The cases are usually dismissed because they are either untimely or not within the Board’s jurisdiction. Of the remaining cases, half of those were settled before a decision by the Board. That left only 1,411 cases actually decided by the Board on their “merits.” Of that number, 1,139 – more than 80% – were decided in favor of the agency. The Board mitigated (reduced) the penalty in a mere 31 cases, constituting only 2% of cases decided by the Board. The Board reversed agencies’ decisions outright in only 219 cases, or 15% of all of those decided by the Board.
Roughly the same time as the Board was announcing its case statistics for FY 2004, the Board issued a decision affecting employees’ rights to an “in person” hearing, and in so doing, overturned at least two prior Board cases going as far back as 1994. Since 1994, the Board has held that an employee is entitled to an “in person” hearing, and that administrative judges (AJs) could not require that the hearing be conducted by telephone or videoconference if the employee objected. That has just changed. In Koehler v. Dept. of the Air Force, MSPB Doc. No. DA-0752-03-0530-I-2, (June 28, 2005), the Board noted that it is “facing serious challenges to work harder and faster, and to decide cases more efficiently.” The Board stated that it “cannot ignore the existence of videoconference technology” if it is meet those challenges. In reviewing the statutory requirement to afford an employee a “hearing,” 5 USC § 7701(1)(1), the Board now reads “hearing” not to require that the hearing be “in person” before the administrative judge. An insistence on an in person hearing, says the Board, “not only infringes on judicial efficiency, economy and discretion, but unduly expands the statutory ‘right’ of appellants.” A videoconference hearing meets the statutory definition, according to the Board. “We therefore hold today that AJs may hold videoconference hearings in any case, regardless of whether the appellant objects.”
The Board concluded its new holding with the reminder that its AJs are bound to ensure a fair and just adjudication in every case. An employee who believes his/her rights have been prejudiced by a videoconference hearing may, after noting an objection first to the administrative judge before the hearing, file a petition for review with the Board, seeking a determination that the AJ abused his/her discretion in ordering a videoconference hearing. As a practical matter however, under its new ruling, the Board is unlikely to reverse such a ruling unless the case involved the need to make credibility determinations and there was some technical glitch in the video process which substantially prevented the AJ from observing the witnesses, thus interfering with the AJ’s ability to observe witness demeanor.
Because the issue before the Board was the requirement for videoconference hearings, the Board specifically stated that it need not, and does not, extend its new holding to the issue of telephonic hearings.
This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’
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