Out of thirteen attorney examiners (aka: MSPB administrative judges) headquartered in the Atlanta Regional Office, five (more than one third) never issued a single employment-related decision in favor of the employee.

Merit Systems Protection Board Statistics
by Administrative Judge Stationed in the Atlanta Regional Office
Fiscal Year 2008

Admin. Judge  Summary Detail             Total   Percent
Bartholomew, Lonny A.
              Dismissed With Prejudice         16   44.4%
              Dismissed Without Prejudice       5   13.9%
              For Agency                        6   16.7%
              For Employee Appellant            1    2.8%
              Settled                           8   22.2%
              TOTAL                            36
Clancy, Joseph E.
              Dismissed With Prejudice         41   43.2%
              Dismissed Without Prejudice       6    6.3%
              For Agency                       15   15.8%
              For Employee Appellant                 0.0%
              Settled                          33   34.7%
              TOTAL                            95
Cummings, Anthony W.
              Dismissed With Prejudice         46   55.4%
              Dismissed Without Prejudice       7    8.4%
              For Agency                        9   10.8%
              For Employee Appellant            3    3.6%
              Settled                          18   21.7%
              TOTAL                            83
Gomez, Ramon V.
              Dismissed With Prejudice         22   43.1%
              Dismissed Without Prejudice       2    3.9%
              For Agency                        8   15.7%
              For Employee Appellant            2    3.9%
              Settled                          17   33.3%
              TOTAL                            51
Jackson, Pamela B.
              Dismissed With Prejudice         34   46.6%
              Dismissed Without Prejudice       6    8.2%
              For Agency                        6    8.2%
              For Employee Appellant            1    1.4%
              Settled                          26   35.6%
              TOTAL                            73
Klein, Garry Wade
              Dismissed With Prejudice          8   72.7%
              Dismissed Without Prejudice       1    9.1%
              For Agency                             0.0%
              For Employee Appellant                 0.0%
              Settled                           2   18.2%
              TOTAL                            11
Klein, Richard P.
              Dismissed With Prejudice         35   56.5%
              Dismissed Without Prejudice       3    4.8%
              For Agency                        4    6.5%
              For Employee Appellant            9   14.5%
              Settled                          11   17.7%
              TOTAL                            62
Lanphear, Thomas J.
              Dismissed With Prejudice          4   26.7%
              Dismissed Without Prejudice            0.0%
              For Agency                        3   20.0%
              For Employee Appellant                 0.0%
              Settled                           8   53.3%
              TOTAL                            15
Miller, Stuart A.
              Dismissed With Prejudice         49   57.6%
              Dismissed Without Prejudice       9   10.6%
              For Agency                        9   10.6%
              For Employee Appellant                 0.0%
              Settled                          18   21.2%
              TOTAL                            85
Thompson, Alexander G.
              Dismissed With Prejudice         14   70.0%
              Dismissed Without Prejudice       1    5.0%
              For Agency                        1    5.0%
              For Employee Appellant                 0.0%
              Settled                           4   20.0%
              TOTAL                            20
Vitaris, Richard W.
              Dismissed With Prejudice         39   46.4%
              Dismissed Without Prejudice       6    7.1%
              For Agency                       19   22.6%
              For Employee Appellant            1    1.2%
              Settled                          19   22.6%
              TOTAL                            84
Weiss, Ronald J.
              Dismissed With Prejudice         32   44.4%
              Dismissed Without Prejudice       4    5.6%
              For Agency                        8   11.1%
              For Employee Appellant            2    2.8%
              Settled                          26   36.1%
              TOTAL                            72
Yovino, Lynn P.
              Dismissed With Prejudice         44   47.8%
              Dismissed Without Prejudice       8    8.7%
              For Agency                       11   12.0%
              For Employee Appellant            1    1.1%
              Settled                          28   30.4%
              TOTAL                            92

Grand Total of Dockets for MSPB attorney examiners stationed in Atlanta
                                              779

-----------------------------------------------

Atlanta Administrative Judges with no decisions for the employee appellant:
Joseph E. Clancy, Garry Wade Klein, Thomas J. Lanphear, Stuart A. Miller,
Alexander G. Thompson

KEY:
DISMISSED WITH PREJUDICE / declared outside of MSPB's decision-making role.
Categories include: Cancel or failure to prosecute, Jurisdiction or res judicata,
Timeliness, Withdrawn by Appellant, (Action) Terminated

DISMISSED WITHOUT PREJUDICE / request for postponement by appellant.
subject to being revisited

FOR AGENCY / decision in favor of agency. Categories include:
Affirmed, Corrective action not ordered

FOR EMPLOYEE APPELLANT / decision in favor of employee. Categories include:
Mitigate agency action, remanded to agency, reversed

SETTLED / settled

Data are from MSPB's FOIA grant CB10-80.  Statistics exclude fields
where appeal type specifies CSRA, FERS or FERCCA benefit claims

Unbelievable. The Department of Justice just filed a motion with the court asking for an extension of deadline AFTER the deadline passed. It also thought I might want to sign a stipulation agreeing to this extension that it has already taken. Thankfully though, DOJ did tell the court that it wasn’t me that missed the deadline, and that I was the one who actually wanted to comply.

To top it off, I have four days to reply to this motion, which pertains to a deadline already in arrears.

I’ve done a quick crunch of the numbers provided by the Merit Systems Protection Board (MSPB) in its FOIA grant. There’s nowhere but up for this court, and Ms. Grundmann was smart to have released earlier statistics so that we can all observe as MSPB works to shed its reputation as one of the most arbitrary administrative courts in America.

The following is a rundown by regional office for the period from October 2007 through September 2008. New York, with a 0.6% rate of success for employee appellants, wins the “tell me again, why do you exist?” award while Dallas and San Francisco win the award for “most hostile,” turning in affirmations in favor of the agency at a rate of 16.7% and 15.6% respectively.  The bottom line is this: In FY 2008, non-benefit* MSPB initial dockets had a rate of 1.7% success in favor of the appellant.

FISCAL YEAR STATISTICS FOR 2008
ALL NON-BENEFIT MSPB INITIAL DOCKETS
BY REGIONAL OFFICE AND DISPOSITION*

TOTAL CASELOAD = 4698

ALL REGIONAL OFFICES                    4698  100.0%
   FOR AGENCY                            570   12.1%
   DISMISSED WITH PREJUDICE             2208   47.0%
   DISMISSED WITHOUT PREJUDICE           545   11.6%
   FOR EMPLOYEE APPELLANT                 79    1.7%
   SETTLED                              1296   27.6%

ATLANTA                                  779  100.0%
   FOR AGENCY                            101   13.0%
   DISMISSED WITH PREJUDICE              382   49.0%
   DISMISSED WITHOUT PREJUDICE            58    7.4%
   FOR EMPLOYEE APPELLANT                 20    2.6%
   SETTLED                               218   28.0%

CHICAGO                                  635  100.0%
   FOR AGENCY                             72   11.3%
   DISMISSED WITH PREJUDICE              276   43.5%
   DISMISSED WITHOUT PREJUDICE            82   12.9%
   FOR EMPLOYEE APPELLANT                  7    1.1%
   SETTLED                               198   31.2%

DALLAS                                   557  100.0%
   FOR AGENCY                             93   16.7%
   DISMISSED WITH PREJUDICE              247   44.3%
   DISMISSED WITHOUT PREJUDICE            74   13.3%
   FOR EMPLOYEE APPELLANT                  8    1.4%
   SETTLED                               135   24.2%

DISTRICT OF COLUMBIA                     760  100.0%
   FOR AGENCY                             93   12.2%
   DISMISSED WITH PREJUDICE              387   50.9%
   DISMISSED WITHOUT PREJUDICE            76   10.0%
   FOR EMPLOYEE APPELLANT                  9    1.2%
   SETTLED                               195   25.7%

DENVER                                   453  100.0%
   FOR AGENCY                             46   10.2%
   DISMISSED WITH PREJUDICE              165   36.4%
   DISMISSED WITHOUT PREJUDICE            66   14.6%
   FOR EMPLOYEE APPELLANT                 15    3.3%
   SETTLED                               161   35.5%

NEW YORK                                 315  100.0%
   FOR AGENCY                             13    4.1%
   DISMISSED WITH PREJUDICE              175   55.6%
   DISMISSED WITHOUT PREJUDICE            39   12.4%
   FOR EMPLOYEE APPELLANT                  2    0.6%
   SETTLED                                86   27.3%

PHILADELPHIA                             539  100.0%
   FOR AGENCY                             49    9.1%
   DISMISSED WITH PREJUDICE              273   50.6%
   DISMISSED WITHOUT PREJUDICE            65   12.1%
   FOR EMPLOYEE APPELLANT                  6    1.1%
   SETTLED                               146   27.1%

SAN FRANCISCO                            660  100.0%
   FOR AGENCY                            103   15.6%
   DISMISSED WITH PREJUDICE              303   45.9%
   DISMISSED WITHOUT PREJUDICE            85   12.9%
   FOR EMPLOYEE APPELLANT                 12    1.8%
   SETTLED                               157   23.8%

* EXCLUDES CSRA BENEFIT, FERS AND FERCCA -TYPE CLAIMS

Okay, I admit I can’t stand the old “new site” either. We’re back. WordPress really is a much better user platform. I still want to expand the pro se resource section, and I still want a better forum, but I think I’ve figured out another way to get there.

Welcome home, everyone.

It’s here!!!  MSPB really delivered on its Freedom of Information Act (FOIA) request! Here are the two Excel files containing the figures used in the Merit Systems Protection Board Annual Reports.

I promise I’ll distill them and give you a synopsis in the near future, but in the interest of public transparency, I’m posting them now.

1.  Letter from Susan Tsui Grundmann GRANTING MSPB FOIA Appeal

2.  Transmittal letter accompanying Excel Files

3. Excel File 1: Merit Systems Protection Board Statistics containing Disposition and Administrative Judge – FY 2008

4. Excel File 2: Merit Systems Protection Board Statistics containing Disposition and Administrative Judge – FY 2007

On December 8, 2009 Peter Orszag, in response to his decree issued a open government directive (OGD) to each agency to publish, within 45 days, “at least three high-value data sets (see attachment section 3.a.i) and register those data sets via Data.gov. These must be data sets not previously available online or in a downloadable format. ”

Agencies responses varied, but most agencies sent their new boss a great big middle finger.  Sorting through DATA.GOV reveals responses that can only be considered a refusal.  For instance, how many of you have been waiting with baited breath for a contact list of Part D Sponsors in Medication Therapy Management Program (MTMP)?  How about a 1985 already-published study from the Department of Justice?  The Merit Systems Protection Board published a study that takes you to a page on their website touting “trasnparency” and then locks you out by denying you access to the link.

For a good analysis of agencies’ response, see this article at Citizens for Responsibility and Ethics in Washington (CREW).

President Obama has started a new tradition of volunteerism stemming from Martin Luther King Jr. Day. Last year, my kids and I took warm clothes and blankets to the nearby homeless shelter and we briefly discussed (as much as one can with an eight-and four-year old) how important equity is in our society.

Today, Obama repeated that message, imploring our citizens to take on needed services by volunteering. (As it turns out, Congress — in 1994 — had intended MLK Jr. Day as “a national day of service,” but it took a broad message from the top to make the association.)

I encourage everyone to actively volunteer to improve our community today, whether through formal or informal means.

On Christmas Eve, the Senate gave Obama thirty-four Christmas presents and seven lumps of coal.  Voting en banc, the Senate approved thirty-four pending nominees.  However, it also gave him seven lumps of coal.  Specifically, the Senate Daily Digest for December 24, 2009 reads:

Nominations–Agreement: A unanimous consent agreement was reached providing that all nominations received by the Senate during the 111th Congress, first session, remain in status quo, notwithstanding the December 24, 2009, adjournment of the Senate, and the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following exceptions: Col. David A. Teeples; Dawn Elizabeth Johnsen, to be Assistant Attorney General, Department of Justice; Mary L. Smith, to be Assistant Attorney General, Department of Justice; Christopher H. Schroeder, to be an Assistant Attorney General, Department of Justice; Edward Milton Chen, to be United States District Judge for the Northern District of California, The Judiciary; Craig Becker, to be Member of the National Labor Relations Board (Reappointment); and Louis B. Butler, Jr., to be United States District Judge for the Western District of Wisconsin, The Judiciary.

Importantly, the words “all nominations received by the Senate during the 111th Congress, first session, remain in status quo,” indicate that not all nominations have expired under Senate Rule 31, Paragraph 6.  The seven named nominees being returned to Obama are those that the Senate deems difficult to confirm.  Obama now has the option of resubmitting their names, or selecting new individuals.

I had been following a number of these nominees.  Dawn Johnsen and Edward Chen are two I see as being key factors in changing the current culture of blind obedience toward constructive dissent.  I also see them as being a change from the manner in which we (or our representatives) vote mediocrity into our highest ranks of public service.  Dawn Johnsen was the nominee for the Office of Legal Counsel (OLC) at the Department of Justice (DOJ).  She has vast experience in this office, having served in various decision-making roles from 1993-1998.  She is also the author of the Boston U Law Review article, ”What’s a President to do?  Intrepreting The Constitution in the Wake of Bush Administration Abuses“.  I read the article and wrote a brief summary nearly one year ago, on January 8, 2009.  Professor Johnsen has an incredible mind and a practicality that will be needed in order to change course from OLC’s recent predecessors, John Yoo and Jay Bybee.

Edward Milton Chen was one nominee for United States District Judge for the Northern District of California.  I’ve met Judge Chen, and while the story cannot be called one of a blind devotion toward character, it can be called one of deep humanity.  Over a year ago, I filed a claim in federal court.  When filing a claim, as soon as it is entered into the system, a judge is randomly assigned.  My draw: Magistrate Judge Edward Chen.

In U.S. district court, A magistrate judge is one who is selected by Article III judges to alleviate workload issues.  Technically, they are Article I judges, not unlike administrative judges.  However, unlike administrative judges who are covered under civil service laws, magistrate judges serve fixed terms, then either reapply or resign.  (To be honest, magistrate judges are not unlike public defenders or citizen advocates.  They could be paid much more elsewhere, but have a calling to public service.)  Magistrate Judge Chen is a highly regarded legal professional.  Prior to becoming a magistrate judge, he served many years with the ACLU, and had been active in promoting equity and justice for the San Francisco community.   In order for a magistrate judge to oversee all aspects of a claim, both parties must agree to the selection.  Otherwise, the name gets withdrawn and an Article III judge (those selected by the President for a lifetime appointment) drawn.

You guessed it.  The Department of Justice rejected Magistrate Judge Chen, and a name was drawn from among the Article III judges.  I happen to like the name that was drawn, but would have been just as satisfied with having Magistrate Judge Chen oversee the whole matter.  You’re probably wondering how it is that I met Judge Chen after he was rejected by DOJ.  Well, it goes like this:  magistrate judges have a variety of duties depending upon the court and what the Article III judges collectively agree upon.  In Northern California, magistrate judges can fill all roles, as long as both parties agree.  If both parties don’t agree, then magistrate judges just fill in the auxiliary roles, such as settlement conferences and discovery matters.  Upon the first discovery motion (filed by DOJ), the presiding judge in my case sent it to Judge Chen for adjudication.  That is where I first met Judge Chen — at a discovery motion hearing.

DOJ’s first discovery motion would be granted, but there would be many more.  I won some, I lost some, but I always felt that Judge Chen had carefully considered the issues at hand and had granted a decent amount of leeway to accomodate my pro se disadvantage.  Readers will recall the story of the Department of Labor’s ill-conceived plan to declare Alf’s calendar irreparably destroyed.  The first hearing on the matter was surreal.  It seemed the point had already been made.  I spoke up at the last moment, “Judge Chen, I’m incredulous that this calendar software would delete itself.”  He paused; he rubbed his chin.  He responded by agreeing that he too found it far-fetched.  He ordered the Department of Labor to produce a declaration and an explanation on the matter.  The next day, the calendar was miraculously “found” by DOL.

Following the confirmation of Sotomayor to the Supreme Court, a number of new judicial picks were forwarded to the Senate for confirmation.  Judge Chen was among them.  My feeling then was that his lifetime sacrifice had paid off.  He gave up the lucrative career of an attorney for the life of administering justice.  It was about time that America rewarded him with the security of making appropriate decisions without fear of financial consequence (i.e. job security).  Unfortunately, what ensued was a new Judge Chen.  I’m not going to complain about his decisions, which could have been better, but were not inherently unfair.  However, I have reason to believe they would have been different had he not just been nominated.  There were a number of instances where I saw him hesitate, possibly because what he ordered was not from legal reason, but from a desire to get that coveted confirmation.   In my heart, I’ve only felt sadness.  I know that if confirmed, Judge Chen will go on to become an eminent Judge, untouchable in legal ethics, unstoppable in proper application of existing law.  The reason we confirm judges for life, is so that parties do not experience what happened here — a change in outcome based upon jurist fear.

There is something about Judge Chen’s demeanor that cannot be conveyed fully in words.  He is thoughtful, and clearly enjoys his job.  While waiting for my turn, I’ve watched him handle the mundane — bail hearings — and the esoteric — intellectual property law.  Throughout, he handles himself well.  He is even-tempered and inquisitive.  He asks the right questions, and elicits the information necessary to reach a just conclusion.  And when my turn comes, he gives me the same courtesy he extended to those prior.

In a private email to a friend, I expressed the sentiment of my last encounter with Judge Chen.  My motion was denied.  Arguably, anyone — experienced attorneys included — would have had this motion denied.  I asked for a determination of spoliation based upon the Department of Labor’s numerous signed declarations of final document disposal.  While one might say DOL deserved such a finding, there’s an unspoken rule among judges when dealing with the federal government.  It just isn’t done.  But it wasn’t that.  It was that there was no hearing:  Done, finis, a few keystrokes and it was over.  I had noticed how much harder it was becoming for Judge Chen to have in person hearings.  At a previous hearing, he looked away while speaking a few words I know he did not not believe.

In terms of discovery, Judge Chen took great pains to see that I received the most salient pieces of information.  Now, with a few strokes of the pen, he has closed discovery and sent me out on my own — he’s pushed me out of the nest to see if I can fly.  My first emotion was a brief bit of anger, then anguish, then acceptance.  Regardless of what happens next, I owe a great deal of getting to this stage to his willingness to adhere to the spirit of our laws and the right of each citizen to have his day in court regardless of status or representation.

One of the reasons that I would like to see Obama send both Johnsen and Chen’s nominations back to the Senate is this: the seven returned to him are the the best of the best, the type that understand that with status comes responsibility: that no action at a higher decision-making level is insignificant.  And it’s not an aspect that Obama doesn’t understand.  At a recent meeting, when asked by an audience member for VA assistance, Obama joked, “we will get your name — you know, you went straight to the top here….I suspect somebody will be calling you on your cell phone in two seconds.”

Both Dawn Johnsen and Edward Chen have important lifestyle aspects going for them.  Neither has sought power or fame at the expense of society.  Conversely, both have sought a more modest living serving the people.  These are characteristics — particularly for a lifetime appointment judge — that are predictors of future behavior.  Notably, with Judge Chen, even in the face of wanting an Article III position, he was still fair to me (something I want to make explicitly clear here).  I think, and perhaps I shouldn’t bring this up, that both of them are pro-choice may be a factor in their uphill battle.  For the record, I also respect the opinion of those that believe otherwise, as long as their philosophy is sacrosanct: all life is precious.  There is a pragmatism to being pro-choice: that is that one must have empathy for a situation outside of one’s own sphere.  There is a need for this pragmatism — whether over abortion rights or otherwise — in America, where we have survived the odds.  We’ve taken the great experiment of a diverse population and given it voting rights.  We cannot afford to move backwards because of the strong will of a few.  Obama needs to send the message that he wants these seven stellar selections in influencial positions and that he won’t settle for less.

What a fabulous Christmas this has been. On December 21, I gave the Department of Labor (DOL) and Department of Justice (DOJ) their present — a summary judgment motion to close the case without a trial and decide in my favor. AUSA Melanie Proctor then demonstrated her delight over my gift by filing a “request” to the court for an extension for response, along with the threat of sanctions.

(Note to Ms. Proctor: What I’ve noticed about District Court is that the COURT is the boss, and not the other way around. Just my two cents.)

District Court responded to both of us on the evening of December 23 by issuing judgment on a previous issue before it. It GRANTED case amendment on two issues which I had requested and which were pending. MERRY CHRISTMAS TO ME!!! (I had highly suspected that this would be granted at some point in time. Especially because DOJ responded by arguing every point toward my favor. . .)

Anyhow, rather than grant DOJ anything (and who would want to, after being threatened), the court just reset the clock on the summary judgment motion. I get until the end of January to refile mine, and they get the same amount of time. WOOHOO! I needed more time anyway. Although I spent many heartfelt hours in the law library and in front of the computer working on my 42-page motion, I can live with getting extra time to whittle it down to the local rules’ 25-page maximum.

Rather than talk about my motion — and boy am I tired of writing and of researching — let’s talk about the fabulous DOJ threat to District Court. At first, I thought AUSA Proctor was writing this motion to me. And then, the more I thought about it, it wasn’t for me. It was for the Judge. Entitled, “NOTICE OF UNAVAILABILITY,” Ms. Proctor’s formal motion threatened to sanction anyone attempting to schedule a hearing while she was on her four days of leave. To underscore the seriousness of this infraction, she cited Tenderloin Housing Clinics v. Sparks, 8 Cal. App. 4th 299, 20-305 (1992). Go ahead. Rub your eyes. That’s right. She cited CALIFORNIA STATE law in Federal court. MERRY, MERRY CHRISTMAS TO ME. Humor and egg in the face for opposing counsel all at the same time. I hope the Judge is duly awed by DOJ’s legal prowress and fearful of these sanctions it seeks to impose upon the court.

By now, readers know that rules in real court get warped in fake court.  There’s a special case at MSPB that permits an administrative judge to rule against you just because they don’t like your clothes, your face or the tone of your voice.  Well — that’s not exactly true, but that’s how MSPB interprets it.

The Board has held that to resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version she believes, and explain in detail why she found the chosen version more credible, considering such factors as: (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. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).

Take a note of number (7) the witness’s demeanor.  What exactly does that mean?  As one administrative judge has noted, “Factor seven is the most important in that it gives the judge leeway. Since the full board does not hear the witness, the judge can always base his or her decision on the demeanor of the witness with little fear of reversal.”

Honestly though, Hillen isn’t supposed to be a catch-all agency-friendly way to break the law.  There are only certain situations in which MSPB is to be legitimately invoked.  Notably, it is only for issues of credibility: where documented facts are in question.  Next, it also invokes a number of requirements from the administrative judges.  Specifically:

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.

In other words, MSPB may decide it hates your face, but it must present reasons why that causes them to doubt your credibility.  Ultimately, almost none of the MSPB decisions citing Hillen actually identify what it is they are seeking to clarify.  Most are just a good reason for them to practice using their thesaurus.

From one case, the MSPB administrative judge wrote:

Using the Hillen factors, and in consideration of the witness’s demeanor and sincerity, the agency witnesses were credible and straightforward. Their testimony was cogent and had an inner consistency. Their testimony was unrebutted and their fear and disgust of appellant’s conduct was palpable; furthermore they had no reason to fabricate. Appellant by contrast, demonstrated an evasive and duplicitous manner. His testimony lacked forthrightness, was disingenuous and unpersuasive. He demonstrated a selective memory and was prolix and circular in his statement and his response to questions.

Notice how none of us can identify the “factual question in dispute?” If this MSPB administrative judge was taking a SAT vocabulary test, he’d score high. However, because he is supposed to know the law and apply it correctly, he gets an F instead.