Appealed from: Merit Systems Protection Board
Before Davis, Kashiwa and Newman, Circuit Judges. Davis, Circuit Judge.
The main issue presented for review is whether the Merit Systems Protection Board (MSPB or Board) erred in conducting a hearing at which petitioner inexcusably failed to appear. A preliminary question is whether petitioner's failure was unjustified. We hold first, that Callahan's non-appearance was inexcusable, and, second, that, when an employee is absent from a Board hearing without justification, the proper procedure is for the Board to consider the case on the agency's investigatory record alone.*fn1 In order for the Board to correct its error we vacate its decision and remand for further consideration in conformity with this opinion.
Petitioner Theodore Callahan was dismissed for unsatisfactory performance (effective October 1, 1982) from his position as a mail clerk at the Naval Research Laboratory (agency) in Washington, D.C. The agency specifically alleged, inter alia, that petitioner refused to pick up mail on several occasions, destroyed delivery receipts, and failed to follow security guidelines when handling classified material. Callahan filed a timely appeal with the Board and requested a hearing. By order dated November 16, 1982 the presiding official scheduled a hearing for December 16, 1982 at 9:00 a.m. The order stated that the hearing would take place at the Board's Washington Regional Office in suburban Falls Church, Virginia; the order also provided the office's address and the appropriate room number. In addition the order contained the following paragraph:
6. Failure to Appear. If a party fails to appear for the hearing, without good cause, the hearing will proceed or the case will be decided on the basis of the existing record. Depending on the circumstances, failure to appear may also result in sanctions.
Petitioner never arrived at the hearing. According to his affidavit, subsequently filed with the Board, he left his home at 7:30 a.m. on the morning of December 16th.*fn2 Being unacquainted with northern Virginia, petitioner became lost. At 9:30, half an hour after the hearing was scheduled to begin, petitioner telephoned the presiding official. She agreed to wait another hour. At 10:45 petitioner, still lost, called the presiding official and spoke with a receptionist or secretary; she told petitioner that the hearing had begun. At 11:45, still lost but "about to arrive," petitioner again telephoned ahead. The receptionist or secretary informed him that the hearing had ended and that he should go home.
The hearing began at approximately 10:45, apparently just prior to petitioner's second phone call. The agency presented testimony and affidavits from petitioner's co-workers regarding the quality of petitioner's work, his relations with other employees, and other matters which petitioner had disputed during the agency investigation. The agency offered a closing statement, and the hearing ended at 11:45 a.m. The day after the hearing, Callahan called the presiding official and asked for another hearing date which was refused. Shortly thereafter the presiding official permitted the filing of new evidence, but closed the record as of December 30, 1982. Callahan apparently submitted only copies of material already in the record.
On March 4, 1983, the presiding official issued an opinion. She first recounted her version of the events on the morning of the hearing.*fn3 She then reviewed the evidence, relying heavily on the testimony presented at the hearing.*fn4 She concluded that the agency had proved its allegations by substantial evidence as required by statute. 5 U.S.C. § 7701(c)(1)(A) (1982).
Petitioner sought review by the full Board. Finding no "error in the reasoning on which the presiding official predicated his [sic] evidentiary findings to warrant a full review of the record," the Board denied the petition.
We have no doubt that, on the facts admitted by petitioner (see Part I, supra), his failure to attend the hearing was inexcusable, and not for any sufficient cause. It is unnecessary to couch the problem in terms of "waiver", with its general overtones of an intentional or deliberate act. The question is better phrased in terms of the individual's inadequate justification for failing to appear at the hearing as he should have -- comparable to the issue of whether good cause has been shown for extension by the MSPB of a regulatory time limit. Here, it is undeniable that Callahan was lost for at least four hours on his way to the hearing in nearby Falls Church. That is the reason for his failure to turn up, but not a justification. Petitioner simply could not find his way, and there is no assertion that he asked anyone for directions at any time, or looked at a map. But it is plain that he had had ample opportunity in the near-month's time between his receipt of the order setting the hearing-date-and-place and the hearing date itself to obtain proper directions to the site. His protests that he was unfamiliar with northern Virginia reinforce the conclusion that it was grossly negligent to continue to blunder aimlessly around that area when he knew the hearing had been set for 9:00 a.m. An MSPB hearing is not a mere social occasion for which unjustified lateness might be acceptable. It was his responsibility -- which he did not fulfill -- to use reasonable efforts to get there on time.
What was the Board's duty once it had decided -- properly, as we have just held in Part II, supra -- that petitioner had no good excuse for failing to appear at the hearing? The Board's practice where the employee is absent from an ordered hearing has not been uniform. In Banko v. Department of the Navy, 11 MSPB 514 (1982), the employee informed the Board that he would not attend the hearing. The Board ruled that the presiding official did not err by conducting a hearing anyway. A similar situation arose in Webster v. Government of the District of Columbia, 7 MSPB 176 (1981), but the Board found no error when the presiding official decided the case on the record without taking further evidence. Apparently, ...