The dreaded summary judgment proposal is back at the MSPB, this time in the form of a nuanced rulemaking proposal. Analysis to follow, but for now this fact sheet by the MSPB can tell you what’s at stake, specifically under the discussion for Option C.
As related in the Federal Circuit’s Crispin decision, Congress considered but ultimately declined to enact a statute that expressly gave the MSPB summary judgment authority. For the reasons set out in cases like Bommer and Jordan, however, that does not mean that appellants are entitled to a full evidentiary hearing, including the presentation of witness testimony and documentary evidence, in cases where there are no genuine issues of material fact. Such an entitlement would completely eviscerate the authority of MSPB judges to limit witness testimony and other evidence to that which is relevant, material, and non-repetitious. See 5 C.F.R. § 1201.41(b)(10). What the statutory right to a hearing does necessarily entail is that, for each appeal that is within the Board’s jurisdiction, the appellant will get his or her “day in court.” This would include the appellant’s right to tell his or her version of events, subject to the judge’s authority to limit testimony to that which is relevant, material, and non- repetitious, but would not extend to introducing the testimony of other witnesses and documentary evidence that has not been shown to be relevant, material, and non-repetitious.
In declining to give the MSPB formal summary judgment authority, Congress may well have been mindful that, in contrast to federal district court proceedings governed by Rule 56 of the Federal Rules of Civil Procedure, in which the vast majority of litigants are represented by attorneys, proceedings before the MSPB frequently involve individuals who are representing themselves, and who therefore could not be expected to be adept at the motion practice involved in summary judgment proceedings. In particular, the preparation of affidavits or declarations made under penalty of perjury, combined with the crafting of legal arguments that would show that genuine issues of material fact exist, might be too difficult for many pro se appellants to handle. In the merits hearing required by proposed section 1201.24(d), the Board’s administrative judges would be expected not only to determine whether the appellant has raised a genuine issue of material fact, but also to explore whether the appellant can articulate a genuine issue of material fact that might require an evidentiary hearing. In cases in which an appellant has not raised a genuine issue of fact as to a matter on which he or she bears the burden of proof, judges would explain the applicable substantive law, and why the facts as known appear to indicate that the appellant cannot prevail on the merits as a matter of law. In such a setting, pro se appellants would be in a position to articulate why they believe there is a genuine issue of material fact. If they can articulate such an issue, the judge would schedule an evidentiary hearing. If they are unable to articulate such an issue, the judge would issue an initial decision based on the existing record.