FAA Use of ‘Rocket Docket’ to Scuttle MSPB Appeals

The MSPB Appeal Process…

When a career Federal employee is fired (or even just suspended for more than two weeks), he or she has the right to file an Appeal with the Merit Systems Protection Board (MSPB). The MSPB has been around since the late 1970’s and, as implied by its name, it exists to adjudicate matters and ensure that merit systems are protected. In a nutshell, to protect the employee against the potential for management to apply excessive and unwarranted discipline.

The Board itself sits in Washington, DC. Actual cases are filed at regional offices, as Appeals, and they are processed in the regional offices, too. Each appeal is assigned to and managed by an Administrative Judge (AJ), who also eventually hears and decides the appeal. Considerable pressure is placed upon both parties (the Appellant and the Agency) to ‘settle’, most likely for the simple reason that it minimizes the AJ’s effort and paperwork. This has added benefits, too; it takes pressure off of the AJ’s work schedule, and reduces MSPB’s processing costs. When budgets are limited, managers doubtless prefer AJ’s who cut costs with quick settlements. And, if budgets remain tight for years, eventually the Appeal process becomes all about saving costs, with no meaningful effort made to protect employees and ensure the service of Due Process.

In general terms, the calendar for an MSPB Appeal follows this four-month timeline:

STEP-1: The employee receives the disciplinary notice, which must advise of the right to file an Appeal with MSPB, within thirty days. The letter may also specify other options, such as union grievances or internal agency programs; a caveat is that, normally, the disciplined employee must select only ONE of the appeal/grievance options.

STEP-2: If the employee files an MSPB Appeal, it will be assigned to an AJ, who will then issue an Acknowledgment Order. This puts the Agency on notice, with a deadline to produce the ‘Initial Agency File‘, typically within a few weeks.

STEP-3: The AJ issues an order defining the hearing date, deadlines for Discovery, etc. Discovery commences, ideally ensuring that all relevant records are fully shared, so that both parties are prepared to engage in a fair Appeal Hearing.

STEP-4: Pre-hearing conferences are held, including both parties and the AJ. The aim is to simplify: narrow the scope, eliminate potential witnesses and initiate settlement.

STEP-5: The Hearing is held, usually around 90-days after the filing. It typically lasts 1- to 3-days, and is held in a courtroom, with a court reporter, maybe even a guard.

STEP-6: The AJ then reviews the documents, drafts a decision, and aims to issue it no later than 120-days after the filing. This quick 120-day schedule is called the ‘Rocket Docket’.

The appellant may retain an attorney, or may proceed pro se. In either case, based on the record in the last decade, appellants can expect to either lose, or end up coerced into an unfair settlement. The odds of an appellant prevailing are roughly 2%.

The above outlines how the MSPB Appeal would work if MSPB had the funding to hold all needed hearings, and if the AJ’s cared to produce fair decisions. If that were the case, the results would be much more favorable for appellants.

…and how FAA Scuttles the MSPB Appeal:

Now, consider this. Most agencies employ their own attorneys to represent the agency against MSPB appeals. Thus, it is not at all uncommon in these cases to see a career civil servant who has been damaged,  going up blindly and pro se against one or two experienced agency attorneys. The attorneys have handled MSPB cases before, and they know if today’s MSPB leans for or against fair treatment of employees. This knowledge shapes their actions; agency counsel plays the game. In one of the darkest periods, at the end of 2008, agency attorneys knew quite well that MSPB was so gutted, no federal employee stood any chance of winning at MSPB. All they had to do was play to MSPB’s goal of forcing settlements. Justice be damned.

I know this from personal experience; my family knows it, too, because they suffered the consequences when FAA stole my 22-year air traffic controller career. FAA counsel at the Western Pacific Regional Office in Los Angeles, led by Naomi Tsuda and assisted by Don Bobertz, knowingly employed a set of specific strategies, which scuttled the MSPB Appeal I had to file in late 2008. I went through that hell. But, then, in the years that followed, I used FOIA to collect all the documents I could. Now, wanting to achieve the most practical benefit from my bad experience, I am providing the analysis below, which identifies the strategies used by FAA to scuttle MSPB appeals. And, to enhance this exposé, I am sharing the actual case documents.

Please take a little extra time, open up at least a few of the links (blue text in the boxes on the left column), and ponder what needs to be done to repair the broken process at MSPB…


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Step-by-Step: How FAA Scuttled my MSPB Appeal

STEP-1: The employee receives the disciplinary notice, which must advise of the right to file an Appeal with MSPB, within thirty days. The letter may also specify other options, such as union grievances or internal agency programs; a caveat is that, normally, the disciplined employee must select only ONE of the appeal/grievance options.

The shock of receiving my 7-page removal decision letter and seeing my pay suddenly disappear was bad enough. Couple that shock with the three options laid out on page six: I had ten-days to use FAA’s ‘Guaranteed Fair Treatment’ process; or, I had 30-days to file an MSPB Appeal; or, I had 20-days to file a grievance using an imposed controller contract,with full knowledge the Union would be hostile toward that (this was the set of workrules which the NATCA ahd been fighting for more than two years, and which was finally swept away in the summer of 2009).
In my case, it worked well for the agency. My reaction to the offer of ‘Guaranteed Fair Treatment’ was to recognize how unfairly the agency had treated me for more than 21-months. The NATCA contract was broken, as were the NATCA officials. So, I chose the middle cattle chute and filed at MSPB.

STEP-2: If the employee files an MSPB Appeal, it will be assigned to an AJ, who will then issue an Acknowledgment Order. This puts the Agency on notice, with a deadline to produce the ‘Initial Agency File‘, typically within a few weeks.

I filed my MSPB Appeal on 11/30/08. It was assigned to AJ Craig Berg, at the Western Regional Office in San Francisco. AJ Berg promptly issued his Acknowledgment Order on 12/5/08.
The Acknowledgment Order was a 19-page packet that included notices to both the Appellant (me) and the Agency (FAA). It encouraged settlement, and defined the procedures for Discovery (the sharing of documents related to the case). It also included numerous attachments, generally boilerplate related to privacy rights, filing requirements, the mediation process, certificate of service, etc.
As became apparent years later, there were two key portions:
  • AJ Berg stated: “I DIRECT the agency to contact the appellant within 35 calendar days of the date of this Order to define the issues, agree to stipulations, and discuss the possibility of settlement. I am available to assist in the discussions. The agency must discuss concrete, specific settlement proposals with the appellant unless either party concludes in good faith that no compromise of any kind is possible.”
  • AJ Berg also stated: “I ORDER the agency to serve me, appellant, and appellant’s representative (if applicable), with the material listed on the enclosed schedule and any other information required by 5 C.F.R. § 1201.25 within 20 calendar days of the date of this Order.”
I promptly responded to AJ Berg’s Order, with a detailed letter to FAA Counsel Naomi Tsuda on 12/13/08; the letter included a 14-page index of all documents I possessed related to the case, as well as an index and descriptions of forty-seven potential witnesses. The effect was that I inadvertently helped Agency Counsel identify the documents they needed to continue to conceal … which is exactly what they did. Naomi Tsuda (and her assistant, Don Bobertz) sent an empty 12/19/08 letter, responding to the 12/13/08 Discovery request. Then, agency made no ‘good faith’ effort to assess the facts and discuss settlement. Instead, agency counsel focused on concealing evidence and playing to AJ Berg’s inclination toward achieving a so-called ‘settlement’. In fact, I did not obtain some of the most critical exculpatory records until 2011 and 2012 … and some remain concealed to this day.
Agency produced their Initial Agency File (IAF), which was received on 12/29/08. The IAF contained 452-pages of FAA records; some pages were clearly illegible, and all key pages were missing. It included an ‘Agency Narrative Response’ condensing FAA’s version of this lengthy and twisted case history into barely half a page.

 

STEP-3: The AJ issues an order defining the hearing date, deadlines for Discovery, etc. Discovery commences, ideally ensuring that all relevant records are fully shared, so that both parties are prepared to engage in a fair Appeal Hearing.

On 12/30/08, I initiated MSPB Discovery with a detailed letter to FAA Counsel Naomi Tsuda. FAA’s response was extensively delayed, and not received until 2/18/09. That response was missing dozens of key documents, and contained 333-pages of disorganized and mostly irrelevant records.
On 1/7/09, I retained representation by Ariel Solomon, Esq., of Albany, NY. I had located Ms. Solomon via a news article which had identified her as the attorney representing Anne Whiteman, the FAA air traffic controller who blew the whistle about years of fraudulent coverups at DFW.
AJ Berg’s ORDER was issued on January 9, 2009. Within his ORDER, he scheduled the hearing to start at 9:00 AM on Wednesday, March 4th. He also ordered both parties to produce needed documents (statements of facts and issues, agreed upon material facts, a list of potential witnesses, and an index and copies of all exhibits) on or before 2/17/09. And, AJ Berg set a Pre-Hearing conference to occur at noon, on 2/20/09.
The ORDER emphasized the goal of achieving a ‘settlement’:
  • AJ Berg stated: “…the parties must be prepared, as appropriate, to discuss settlement, to define the issues, and to reach stipulations of uncontested facts. I ORDER the agency representative to contact appellant’s representative or appellant, if unrepresented, and make appropriate arrangements to initiate this call. The appellant or the appellant’s representative must provide the agency representative with a telephone number for the conference call within five calendar days of receipt of this order, if a suitable number is not already included in the appeal record. Since I will discuss settlement options during this conference, representatives must have the authority to settle this appeal or be able to reach the person with that authority on short notice. We may include that person in the conference discussions if I deem it necessary.” (emphasis removed)
Up until the very end, Agency Counsel repeatedly offered to settle with an offer of a disability retirement. This offer was contrary to the fact that I had no disability and that their own Regional Flight Surgeon, Dr. Stephen Goodman, had fully certified my medical fitness on 1/10/08. Thus, in early 2009, Agency was offering me a financially attractive disability retirement, but I was not eligible. This is documented by the 2/9/09 disability estimate prepared by Shawna Richards; by the 2/10/09 email from Glen Rotella, providing me a copy of that disability estimate; and, by the 2/13/09 ‘FYI’ email from Mr. Rotella to Ms. Tsuda. Additional documentation of this improper disability estimate was shared via email on 2/24/09 and lastly, on 2/26/09.
Agency’s strategy on Discovery was simply to delay and deny. I had made an informal request on 12/13/08, and a formal Discovery request on 12/30/08. Agency Counsel was fairly quick to enlist support from administrative personnel in the FAA office in Renton, WA. Counselor Bobertz emailed Linda Williams on 1/15/09, and she returned an immediate email replay, saying she was ready to start. But, for some reason, she did not begin to collect those records for another three weeks. Naomi Tsuda sent her an email at 5:03 PM on 2/5/09, and a flood of email solicitations followed on 2/6/09, with many generating immediate and full responses, including many valuable records by Richard Giles and Mark DePlasco. In the meantime, Agency Counsel issued a defective first response to the Discovery request, essentially just announcing more delay; this was signed by Carey Terasaki (for Naomi Tsuda) on 1/30/09. [NOTE: this document looked official, formatted as an MSPB pleading and with a certificate of service attached, but I learned later it was NOT actually filed with MSPB.] Two weeks later, on 2/13/09, Agency Counsel issued another pleading, and this time actually filed it at MSPB; they again declared records would soon be produced, while also declaring boilerplate objections on most requested documents.
The final production of Agency’s Discovery records happened on 2/17/09, via email. Counsel stripped out the exculpatory records (especially the key records provided by Richard Giles and Mark DePlasco), then compiled the leftovers into a disorganized and occasionally shuffled stack. Two PDF files, totaling nearly 11Mb and filled with 333-pages, were sent to my counsel on 2/17/09, just two days before the critical depositions of Jason Ralph and Patricia Hardy. I knew my case well and yet, as scrambled as these records were, it took me two full months to make sense of them.
As for production of the final PreHearing submissions, my counsel barely made the 2/17/09 deadline. Technically, FAA counsel missed it by a day, as their PHS was dated 2/18/09.
Lastly, I had my counsel conduct three sworn depositions. The first was coworker Andrew Arnott, on 2/10/09. Then, on 2/19/09, Concord Tower manager Jason Ralph (for three hours) and supervisor Patricia Hardy (for seventy minutes) were deposed. The lies and misrepresentations revealed in these two management depositions were extraordinary, and were directly witnessed – and not challenged – by both Naomi Tsuda and Don Bobertz.

 

STEP-4: Pre-hearing conferences are held, including both parties and the AJ. The aim is to simplify: narrow the scope, eliminate potential witnesses and initiate settlement.

On Friday, February 20, 2009, just one day after the lengthy depositions of Jason Ralph and Patricia Hardy, the scheduled prehearing conference commenced. It was abruptly closed and rescheduled, when agency disclosed it had just made a new settlement proposal, and counsel on both sides wanted to pursue settlement for a few days. A new prehearing conference was scheduled for Tuesday, 2/24/09. Agency’s settlement offer was rejected, and the 2/24 conference was held.
On Friday 2/27/09, just five days before the scheduled hearing, AJ Berg distributed his memo, Summary of Telephonic Prehearing Conference. This was a very important document, as it spelled out the specific burdens of proof he was demanding from both the Appellant and the Agency. I did not see a copy of this document until a month later, when I spent hours reviewing the files at the MSPB offices, on 4/3/09.

 

STEP-5: The Hearing is held, usually around 90-days after the filing. It typically lasts 1- to 3-days, and is held in a courtroom, with a court reporter, maybe even a guard.

We all convened at 9:00 AM on Wednesday, 3/4/09, but no hearing was held. Preceding this, a series of last-minute time/location changes had been made by Agency. The hearing was initially set to be at 9:00 AM on Wednesday, 3/4/09, at the MSPB offices, but was changed on Sunday, becoming 8:00 AM at the courtroom on the 23rd floor of the U.S. Bankruptcy Court location. Then, on Tuesday 3/3/09, the hearing was again changed, and was now to start at 9:00 AM the next morning (3/4/09), at the 17th floor of the San Francisco Federal Building.
The hearing was to last two days, but it never actually started. AJ Berg was absent. AJ Lunell Anderson entered the courtroom and briefly explained that AJ Berg’s wife had induced labor for the birth of twins, necessitating a last-minute AJ substitution. AJ Anderson then began to set up for the hearing. First, she chastised my counsel (Ms. Solomon) for making a Motion in Limine filing late the night before. Then, she asked Agency Counsel (Ms. Tsuda) about the key element of the Motion in Limine, which noted I had been previously admonished, thus could not be disciplined again with the firing. Ms. Tsuda flat-out declared that I had NOT been previously admonished. This was clearly a lie, as just two weeks earlier (on 2/19/09) she had witnessed the 3-hour deposition of Jason Ralph, in which he had repeatedly declared the many times he had admonished me. To wrap up before starting the hearing, AJ Anderson then asked Ms. Tsuda to report Agency’s last efforts at settlement. Counselor Tsuda summarized that they had offered a retirement and the counter-offer was simply too far to reach settlement. She did not mention that agency had offered only a disability settlement (which could not be legally accepted), up until their very last offer.
Although the contract court reporter was clearly typing away into her recording device, no official record was retained. While investigating this months later, I spoke with the contract court reporter; she confirmed that her services were paid for, but she had been told to produce no records.

 

STEP-6: The AJ then reviews the documents, drafts a decision, and aims to issue it no later than 120-days after the filing. This quick 120-day schedule is called the ‘Rocket Docket’.

Although the hearing never commenced, it was clear that AJ Anderson was not going to challenge the misrepresentation made by Agency Counsel, Naomi Tsuda, when she falsely declared that I had not been admonished. So, when AJ Anderson invited my counsel and me to step into the hallway one last time to discuss settlement, Counselor Solomon recommended acceptance with the rationale that it is better to accept a poor settlement than to possibly come away with nothing. She made this recommendation without being able to see any of the dozens of key exculpatory records that were produced years later, via FOIA.
MSPB wrapped up this case in a little over 90-days, and with very little actual effort. AJ Anderson had successfully leveraged a ‘settlement’, thus did not have to do any review or sign her name on any decisions. However, the ‘settlement’ resulted from the fraud of agency manipulation and concealment of records. No MSPB AJ was allowed to see the full set of records; thus, the charges made by agency and used to fire an employee, were never subjected to any Due Process.