Trial By Written Brief Can Prolong The Agony

By on March 17, 2005 in Current Events with 0 Comments

Most people would argue that it is better to resolve disputes as quickly as possible. The more important the stakes in the dispute, the better for everyone to know the outcome as soon as possible and to move on.

Despite this ideal, it is not unusual for administrative appeals from federal employees to take years to resolve. Part of the problem is the multiple appeal routes available for one issue. But another reason a case can take years is attempts by the third parties to ensure all parties get a fair hearing including introducing all relevant evidence through documents and witnesses.

Sometimes it is faster to resolve a case by avoiding a hearing. In theory, each party submits its position and the hearing officer or judge or board makes a decision in a relatively speedy fashion.

But it doesn’t always work that way.

Here’s an example. In this case, an employee of the Federal Deposit Insurance Corporation (FDIC) waived her right to a hearing before the Merit Systems Protection Board (MSPB) and, instead, opted to have the case resolved by written submissions.

The initial appeal was filed in June 2002. As of March 2005, the case is still going strong having gone from the MSPB Judge, then to the MSPB, meandered its way to the Court of Appeals for the Federal Circuit and, having stopped there, is now headed back to the MSPB again for another decision. Of course, it is possible the next MSPB decision will then be appealed back to the court.

This case involved a reduction-in-force (RIF) in the agency. The employee, Nancy J. Schucker, was removed from her position. She argued she had the right to another job in the agency because it was essentially identical to the one she was losing in the RIF.

As part of the process, Schucker waived her right to a hearing and the agency and the Schucker submitted their positions in written briefs.

The Administrative Judge explained the process this way:

“On October 28, 2002, the appellant withdrew her request for a hearing. Based on the withdrawal, the hearing has been canceled. The record will remain open for receipt of evidence and argument from both parties until November 13, 2002. After that date, the record will be held open until November 20, 2002, for receipt of final argument from both parties. After November 20, 2002, the record will be closed and no further submissions accepted.”

As it turned out, a hearing may have been faster and more efficient after all.

Each side submitted its positions prior to the deadline.

The agency then submitted its final argument along with new declarations from new witnesses rebutting some of the arguments just sent in by Schucker. Schucker then sent in her final argument along with new information responding to the agencies “final argument.”

The agency objected to the latest submission from Schucker noting that it was received after the deadline established by the Administrative Judge. Each party then sent in additional information in support of their arguments, including one last submission from the agency which was unaware the judge had already issued an initial decision in the case at the time it submitted the final document.

The initial decision did not consider any evidence submitted after the November 13 deadline and upheld the agency’s action in removing Schucker in the RIF. The MSPB upheld the decision of the Judge and Schucker filed an appeal with the Federal Circuit Court of Appeals.

In court, Schucker had better luck. It found that not considering all the evidence in the case was a change in policy from prior decisions of the MSPB. It concluded that “fairness in adjudicating employee’s rights is a cornerstone of proceedings before the Board. Even if the petitioner can be faulted for less than efficient presentation of evidence, that does not permit the Board, without explanation, to act in an inconsistent way.”

This change in policy was arbitrary, according to the Federal Circuit, and it remanded the case back to the Board for further consideration and another decision. Nancy J. Schucker v. FDIC, Case No. 04-3227 (March 16, 2005)

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters onĀ federal human resources.