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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *How a Hearing is Conducted*
        **The  Administrative Judge**When an employee files an appeal with MSPB, the  hearing official is usually an administrative judge (AJ), but can be an  administrative law judge (ALJ).  ALJs are  selected for – and removed from – their own positions under a different set of  rules than AJs in order to ensure that the ALJs can operate with a greater  level of independence.1  Some types of cases are required, by statute,  to use an ALJ.2  In other cases, a regulation establishes the  use of the ALJ because the agency issuing the regulation exercised the  discretion given to it by a statute to set forth the rule that an ALJ would be  used.3 Nearly all adverse action cases – whether  taken under chapter 43 or 75 of title 5 – are heard by an AJ not an ALJ.  For ease of discussion, we will refer to the  hearing official as an AJ, even though in some rare cases it may be an ALJ  performing the duties.  The AJ has the  responsibility to create MSPB’s official record of the case, conduct the  hearing, and issue a decision.4**Pre-Hearing  Activities**The appellant is not required to ask for a  hearing in order to have the appeal decided upon by the AJ.  When the appellant believes the written  record contains all the necessary information, the appellant can waive the right  to a hearing and ask for a decision based on that written record.5Prior to the hearing – or issuance of the  decision if a hearing is not held – the parties will engage in discovery and  the AJ will hold a conference with the parties.6  While these activities are performed in  accordance with MSPB regulations, they are consistent with the general  practices performed in civil litigation.   In other words, MSPB has tailored the process to its responsibilities  under chapter 77 of title 5 and the constitutional due process requirements for  the interests at stake.  MSPB’s process  bears a strong resemblance to the activities that take place under the Federal  Rules for Civil Procedure in a Federal district court, but does have distinct  differences.7During the pre-hearing conference, the AJ will,  among other things:  (1) explain  MSPB’s procedures to the parties; (2) facilitate discovery; (3) identify,  narrow, and define the issues; (4) obtain stipulations; (5) discuss  the possibility of settlement; (6) rule on witnesses; and (7) rule on  exhibits.8The AJ has wide discretion to exclude witnesses  if the AJ determines their testimony would be irrelevant, immaterial, or  repetitious.9  The AJ has similar authority to rule on the  admission of exhibits and other evidence.10  In order to obtain reversal of an initial  decision on the ground that the AJ abused his discretion regarding witnesses or  the admission of evidence, the petitioning party must show on review that  relevant evidence, which could have affected the outcome, was disallowed.11  For more on the process for reviewing initial  decisions, *see* *Implementing or Challenging Initial Decisions.***Assessing  the Evidence**Regulations and case law grant the hearing  official extensive discretion in managing the case.12  However, this discretion is not unlimited.13  The actions of the AJ cannot be “arbitrary,  capricious, not in accordance with the law or in contravention of procedures  required by law, rule or regulation.”14To ensure that the AJ’s decisions are not  arbitrary, the AJs must follow certain guidance in assessing the evidence.  For example, when assessing the credibility  of a witness, the AJ must use the *Hillen* factors, so named for the case in which the Board instructed:
          To resolve credibility issues, an  administrative judge must first identify the factual questions in dispute;  second, summarize all of the evidence on each disputed question of fact; third,  state which version he or she believes; and, fourth, explain in detail why the  chosen version was more credible than the other version or versions of the  event.  Numerous factors. . . must be  considered in making and explaining a credibility determination.  These include:  (1) the witness’s opportunity and capacity to  observe the event or act in question; (2) the witness’s character; (3) any prior  inconsistent statement by the witness; (4) a witness’s bias, or lack of bias;  (5) the contradiction of the witness’s version of events by other evidence or  its consistency with other evidence; (6) the inherent improbability of the  witness’s version of events; and (7) the witness’s demeanor.15Once the AJ has applied the *Hillen* factors, great deference is given  to the AJ’s conclusions about witness credibility when those conclusions are  based on an assessment of witnesses’ demeanor.   The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”)  has instructed that, once the Board chooses to use its regulations to delegate  the power to conduct the hearing to an AJ, “the MSPB is not free to overturn an  administrative judge’s demeanor-based credibility findings merely because it  disagrees with those findings.”16  The court held that this limitation on the  Board comes “from a fundamental notion of fairness[.]”17This does not prevent the Board from correcting  findings by the AJ that are incomplete, inconsistent with the weight of the  evidence, or do not reflect the record as a whole.18  Similarly, when a decision is based upon  facts and not the demeanor witnessed by the AJ, “the Board is free to re-weigh  the evidence and substitute its judgment for that of one of its administrative  judges.”19  This authority to re-weigh the evidence and  reach a different conclusion applies to all issues in the case, including  jurisdiction, charges, and penalties.20In order to enable the  Board and its reviewing court to review the decision reached by the AJ, the AJ’s  decision on the case is required to include, among other things:  (1) the AJ’s findings of fact and  conclusions; and (2) the reasons for those findings and conclusions.21  This document is known as the “initial decision”  because it is subject to further review.   To learn more about the process for reviewing the initial decision, *see Implementing or Challenging Initial  Decisions*.
1*See* 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).


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