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.
7 users commented in " MSPB Hates Your Face: The Problem with Hillen 35 M.S.P.R. 453 "
Follow-up comment rss or Leave a TrackbackToday January 26, 2009 I was disqualified by AJ Kasandra Robinson Style. I was disqualified for allegedly being rude disrespectful and arrogant. This AJ out of the Western Regional Office might as well be on the United States Postal Service payroll. Whoops did I say that? Yes I did. I was kicked off the case 2 days before the Status Conference. My client has chronic PTSD the agency wants to shoot fish in the barrel. The AJ and the Agency’s Rep want to urinate on my head and wanted me to pretend it was rain. No thank You. This AJ allowed the Agency to obstruct justice, serve 45 Interrogatories with obtaining prior approval of the judge. This AJ deems obstruction of justice as a mere mistake. Admin Judge Kasandra Robinson Styles deleted numerous document I uploaded from the e-file system. Apparently she does not know the difference between failure to restore and failure to accommodate. Yes she actually attempted to misconstrue the appeal. She under estimated me, this aj changed the docket number in the e-file system without notifying me the appellant’s rep. Wow when I made inquires about the change she wrote an official memorandum of record and accused me of attempting to engage in ex parte communication. Duh I could not upload a response to her Order to Show Cause because she in her official capacity breached the e-file system. My client is a 30 per cent or more disabled Vet. The Agency refuses to accommodate her service connected disability. She has been in a wage lost status since April 2009. I guess the MSPB hates my face as well. Can any one help me get this disqualification overturned?
I sincerely understand where you’re coming from. I too had documents mysteriously disapper on e-appeals. When I called the Western Regional Office to ask them what happened to the documents, they said they didn’t know. Not only that, but the dates of submissions were altered by the Western Regional Office to appear as though the agency timely submitted documents.
[...] Yesterday, MSPB AJ Franklin Kang proved that just as a leopard doesn’t change its spots, even with new leadership, a skunk doesn’t change its odor. To refresh your memory, Franklin Kang in FY 2008 found for the appellant (federal employee) a whopping zero times out of 68. Well, he hasn’t changed much in FY 2009. He not only upheld the Department of Homeland Security’s decision to terminate former Federal Air Marshal Robert MacLean, he also decided to adjectivize his ruling. You know, adjectivize. That’s where MSPB makes up some ridiculous statement intended to impugn the credibility of the appellant. You can read more about it here. [...]
Court Upholds Firing of Federal Air Marshal for Disclosing Sensitive Information
To Matthew Harwood on:
http://www.securitymanagement.com/news/court-upholds-firing-federal-air-marshal-disclosing-sensitive-information-007139
http://www.scribd.com/doc/17286921/The-America-Betrayal
http://www.scribd.com/doc/16789205/Complaint-Letter-and-Evidence-to-Department-of-Homeland-Security
CooN by YA(YHVH)
Allen Carlton
National Whistleblower – http://www.scribd.com/National%20Whistleblower/
Revelation receiver of the Peoples Righteous Kill Defense (PRKD)
Peoples Army
Admin Judge Kasandra Robinson is at it again. The appellant filed a writ of mandamus to disqualify Judge Styles, she in turn lied on the record alleging the appellant asked her to dismiss her appeal pending a decision on the writ of mandamus. Of course this was without prejudice. Wait a minute here I thought a judge was divested of all jurisdiction over an action once asked to recuse themselves. Of course the writ was denied never naming Kasandra Robinson Styles as the respondent. On June 16, 2010 I was having a casual conversation with the appellant over the telephone. The appellant wanted to refile the appeal. Since Judge Styles removed me as her representative I did not have a copy of her 3-12-2010 Decision Letter, the appellant said she would email me a copy. Well gosh almighty the next day Judge Styles issued a brand new Acknowledgment Order. Before I was disqualified the appeal was slated for a hearing for May 11, 2010. The appellant filed the writ of mandamus in February 2010, Judge Styles dismissed the appeal March 12, 2010. Wow is this due process of law, is this protection for federal employees? The plot thickens AJ Kasandra Robinson Styles wants the appellant to start the appeal process from the beginning. However her 6-17-2010 Acknowledgment Order states do not re-submit documents already submitted. Duh!!! How do you refile an appeal without submitted evidence, why should the appellant be forced to start the process over again when all pre-hearing submissions were submitted by all parties and a hearing was scheduled. The appellant filed her appeal on July 14, 2009 for failure to accommodate. Yes the appellant is still out of work. The MSPB has failed miserably to render a decision within 120, which is a statutory requirement. What do you think is the appellant entitled to a hearing at this point?
What a great job to get paid to write such silliness without any regard for the truth. You are obviously auditioning for a job on FOX news.
Selective quotes are just that selected to demonstrate the quoter’s point rather than explain what the author intended.
I agree that everything should be taken in context, Doktor Darryl. By the way, speaking of context, does your supervisor at Fort Shafter Military Base in Honolulu, Hawaii know you contribute to these posts through government resources? Just sayin’
P.S. Thanks for your service. We taxpayers appreciate it.
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