The following minority report has been posted on May 14, 2012 in response to section 118 of S. 743 and H.R. 3289, the Whistleblower Protection Enhancement Act of 2012.
Why the Merit Systems Protection Board Should Not Be Granted Summary Judgment Powers
What is Summary Judgment?
Summary judgment is a complicated legal process used to cut short proceedings in judicial trials. According to law.com, summary judgment is defined as follows:
A court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party.
The opposing party will respond by counter-declarations and legal arguments attempting to show that there are “triable issues of fact.” If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action.
The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.
In MSPB proceedings, summary judgment would take place during or after discovery, upon motion from the agency or appellant, and, if granted, would deny the appellant the opportunity to present his evidence during a live hearing.
What is the MSPB?
The Merit Systems Protection Board is an independent, quasi-judicial agency in the Executive branch that serves the interests of prompt, procedurally simple dispute resolution. The Board’s mission is to protect Federal merit systems and the rights of individuals within those systems. MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies.
Why the MSPB Should Not Possess Summary Judgment Powers
–MSPB is supposed to be a forum for quick and simple dispute resolution. Summary judgment is a complicated legal scheme that will upset the balance struck by Congress in 1978 and 1989; it would require federal employees of all stripes to act as their own lawyers to protect their interests, or hire ones on their own dime.
–MSPB judges would likely abuse summary judgment powers. The MSPB does not have a good track record of protecting whistleblowers or fulfilling the intent of Congress’ major whistleblower laws. Additionally, some MSPB judges virtually never grant jurisdiction in whistleblower reprisal cases, forcing the Board to remand cases with jurisdictional instructions.
–Summary judgment prevents appellants from cross-examining witnesses who provide adverse written statements. The likeliest scenario is that federal managers and adverse witnesses would provide affidavits that are unfavorable to appellants. Without depositions, appellants would not be able to cross-examine the authors to expose any weaknesses in their written statements.
–Acquiring witnesses for depositions is costly. However, agencies must make employee-witnesses available free of cost to appellant for the hearing.
–MSPB’s stated justification for summary judgment — to “speed case processing” — is not an appropriate reason. Burdening appellants with onerous legal requirements and then denying them the opportunity to make their case in a hearing is one way to speed case processing, but protecting due process is more important. The solution to backlogs and delays is not instituting a system that is more onerous; instead, Congress should appropriate more funding to hire more judges.
–Summary judgment is not the same thing as the jurisdictional test the MSPB currently uses. Under the current jursidictional test, the MSPB ultimately weeds out cases that are should not have been filed. Summary judgment would weed out meritorious cases where appellants are unsophisticated in the law or cannot afford depositions to rebut damaging but ultimately weak adverse written statements.
–Where summary judgment is used in the Equal Employment Opportunity Commission, there is also the possibility of appealing cases to jury trial in federal court. As of now, no such right exists for MSPB cases, nor is it clear whether such a right will be provided by Congress.
–The current plan to try summary judgment for five years means denying justice to appellants in those five years. No one should be asked to sacrifice his or her rights to test a congressional experiment.
In conclusion, MSPB should not have this power under any circumstances, not even as a bargaining chip in legislative negotiations.