Please forgive the length of this post.  I’ve had these stories on the back burner for a long time. A number of readers are sending me gems while other readers (particularly those outside of federal service) clamor for more, asking for a continuous stream of crazy Merit Systems Protection Board (MSPB) stories like the one about the credible — according to MSPB at least — witness  from the National Park Service  who claims to have taken a fellow employee’s feces out of the restroom and forensically assessed its ownership.

Well, it looks like attorney examiner (aka: AJ) Lunell Anderson of “I find the (doodoo-toting) witness credible” fame was recently deemed not so credible by the Court of Appeals for the Federal Circuit (CAFC).  Rather, in this separate case, the Court of Appeals wonders how Anderson found as she did, because “Ms. Malloy’s medical evidence was not discussed, and the AJ’s statement that Ms. Malloy’s representations about her medical condition were “not credible” is so totally at odds with the medical records as to raise strong doubts as to the thoroughness of the AJ’s review.”

Anderson doesn’t discuss the evidence, doesn’t include it in her review, but then finds it “not credible.”   Why am I not surprised?  I can think of another case in which she simply ignored a critical investigation and pretended it didn’t exist.

Think you’re lucky because you didn’t get LuNell Anderson?  Think again.  In one case, SF MSPB Attorney Examiner Nancy Wever decided that testimony that would be inadmissible anywhere else in the United States, is not inadmissible if you’re a federal employee.  This put one Appellant, Jim Black, in a catch-22.  He could either tell the agency what he discussed under confidential marital privilege with the agency, or face insubordination.  Mr. Black told the agency what he and his wife discussed. 

Not that what Mr. Black said to his wife was particularly guilt-bearing to begin with, but the agency had set its mind upon firing him, and did. In essence, if the privilege does not exist in a compelled administrative interview, so be it, but it now exposes all employees.  MSPB’s position is that the agency can now order employees to provide information about conversations with their doctor, spouse and clergy.  Whatever is gleaned from this information can then be used against an employee.

So you didn’t get Anderson or Wever?  How about Anthony Ellison?  He’s the author of the famed “flog a whistleblower” ruling.  Not only are federal employees forbidden from filing tort claims against their federal employer and its agents, whistleblowers (and other federal employees) also have no personnel rights forbidding torture in the workplace.  Go figure?

AJ Franklin Kang?  They hired him so that they could rightfully call MSPB a “Kang”aroo court.  Without giving too much credit to the attorney examiners overseeing MSPB, most AJs try not to rule against the employee, preferring instead, to throw out the case on juridictional issues.  Not Kang.  He seems to revel in issuing decisions against the employee.  For a 4-1/2 month period beginning in October 2007, Kang dismissed 15 cases, settled 4, and found for the agency in 7.  There were no decisions for the employee. His percentage of decisions for the agency were twice the overall MSPB average for the same period.

And finally, if you didn’t get any of the aforementioned AJs, one reader writes to tell us of a recent decision by Tamara Ribas that nearly blew his mind.  Writes our friend:

Legal disputes require judges to weigh the credibility of witnesses, on against another, in order to determine which part is being more truthful. However, judges do not normally weigh the testimony of two witnesses for the same party against one another to determine which is one truthful, but that is exactly what MSPB administrative judge Tamara Ribas (San Francisco) did in order to allow the Postal Service to deprive a disabled veteran of his veterans’ preference rights.

In Patrick Harellson v. Postmaster General, MSPB Docket No.: SF-09-0295-I-1, the Appellant, a disabled veteran, was considered for two vacant custodial positions with the Postal Service in Honolulu.  While he was under consideration for the position, the Postal Service changed its mind and limited selection to current employees only. Two non-veterans were selected for the vacant positions.

Mr. Harellson appealed to the Merit Systems Protection Board. In so doing, he pointed out that the two Postal Service supervisor’s involved had different stories. One, Lawrence Kami, used weasel words to avoid admitting that Mr. Harellson was ever considered for the vacant positions (even though his testimony contained contradictions). The other, Kurt Daniels frankly admitted that Mr. Harellson had initially been considered for the vacant jobs, but his boss, Mr. Kami, had changed his mind and restricted selection to existing employees.

This admission was very important because in Andy Boctor v. United States Postal Service, 2009 MSPB 30 (March 11, 2009), the Board held that once an agency considers an external candidate, it must accord that candidate veterans’ preference rights. The agency is not free to simply change its mind and limit selection to an internal (in-service) hiring list.

Mr. Daniel’s testimony was a smoking gun proving that the Postal Service had denied Mr. Harellson his veteran’s preference in hiring rights.

Despite Mr. Daniel’s testimony, (Administrative) Judge Ribas decided in favor of the Postal Service.

She reached this conclusion by doing something extremely strange: she weighed Mr. Daniels’ testimony against that of Mr. Kami and decided that Mr. Daniels’ testimony  wasn’t credible.

This is novel because Mr. Kami and Mr. Daniels were both Postal Service supervisors who served as witnesses for the Postal Service, not for Mr. Harellson.

It is perfectly normal for judge to weigh the testimony of witnesses that are on opposite sides of the case in order to determine which party is more truthfulful.

But here, (Administrative) Judge Ribas weighed the testimony of witnesses for the same party — not opposing parties. Both men testified for the Postal Service. By doing this, by chosing to discredit Mr. Daniel’s testimony in this unusual manner, Judge Ribas was able to unfairly deprive Mr. Harellson of his smoking gun.

Any reasonable person knows that the witnesses whose testimony is harmful to his or her own party is more likely to be truthful than the one who says all the right things to help his side avoid liability. By this natural criteria, Mr. Daniels’ testimony deserved to be considered more credible.

What excuse did (Administrative) Judge Ribas give for her credibility assessment? After more than a year, Mr. Daniels was hesitant and admitted to his lapses in memory whereas Mr. Kami did not admit to any vagueness of memory. Most people have some memory lapse over time, but apparrently (Administrative) Judge Ribas is more impressed with those who deny any  loss of memory than with those who are truthful about it.

Anyone with a genuine sense of fundamental justice knows how unfair this was. (Administrative) Judge Ribas deserves a permanent place in the Hall of Shame.

Indeed.  Ms. Ribas, please take your place on the podium among your peers.  Watch your step though.  The platform is quite crowded.