Schucker v. Federal Deposit Insurance

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-3227

NANCY J. SCHUCKER,

Petitioner,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

Respondent.

Michael E. Tucci, Stinson Morrison Hecker LLP, of Washington, DC, argued for
petitioner.

Kathryn R. Norcross, Counsel, Federal Deposit Insurance Corporation, of
Washington, DC, argued for respondent. With her on the brief was Colleen J. Boles,
Senior Counsel.

Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit

04-3227

NANCY J. SCHUCKER,

Petitioner,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

Respondent.

__________________________

DECIDED: March 16, 2005
__________________________

Before MAYER∗, CLEVENGER, and LINN, Circuit Judges.

LINN, Circuit Judge.

Nancy Schucker appeals the Merit Systems Protection Board’s (“Board”) final

order denying Schucker’s appeal of the Federal Deposit Insurance Corporation’s

(“Agency”) decision denying Schucker a right to retreat to the position of Counsel in the

Special Issues Unit (“Special Issues Counsel”) and separating Schucker by reduction in

force (“RIF”). Schucker v. Fed. Deposit Ins. Corp., No. DC-0351-02-0587-I-1 (MSPB

Feb. 17, 2004) (“Final Decision”); Schucker v. Fed. Deposit Ins. Corp., No. DC-0351-02-

0587-I-1 (MSPB Nov. 27, 2002) (“Initial Decision”). Because the Board acted arbitrarily

by refusing to consider Schucker’s rebuttal evidence under circumstances in which

∗
Haldane Robert Mayer vacated the position of Chief Judge on December
24, 2004.
longstanding Board policy requires its consideration and by failing to explain this

inconsistent treatment, we vacate the Board’s decision and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

In 1988, Schucker began her career with the Agency. Between September 1991

and April 1993, Schucker served as Counsel in the Supervision and Legislation Branch,

Resolutions Section, CG-0905-15 (“Resolutions Counsel”). Initial Decision at 3. In

1994, the Agency disbanded the Resolutions Section. The Agency reassigned

Schucker to the position of Counsel in the Liquidations Branch, and then to Counsel in

the Supervision and Legislation Branch. In 2002, the Agency reorganized the legal

division and reduced its staff. Id. at 2.

Reduction-in-force regulations provide that if an employee is to lose her position

via reduction in force, then that employee has a right to retreat to a position held by

another employee with lower retention standing in the same tenure group and subgroup

if, inter alia, the other employee holds a position that is the same as or “essentially

identical” to a position held by the employee seeking to retreat.

5 C.F.R. § 351.701(c)(1) (2002). On March 4, 2002, the Agency informed Schucker that

she had no retreat rights. Initial Decision at 2. On May 17, 2002, Schucker was

separated by reduction in force. Id.

Upon separation by reduction in force, an employee may appeal that decision to

the Board. 5 C.F.R. § 351.901. In such an appeal, the Agency has the burden to prove

by a preponderance of the evidence that it followed the reduction-in-force regulations

found at 5 C.F.R. part 351. Initial Decision at 2 (citing Losure v. Interstate Commerce

04-3227 2
Comm’n, 2 M.S.P.R. 195, 201-02 (1980)). On June 17, 2002, Schucker appealed to the

Board asserting that under 5 C.F.R. § 351.701(c) she had a right to retreat to the

position of Special Issues Counsel because that position was “essentially identical” to

her prior position as Resolutions Counsel.

In its July 19, 2002 response, the Agency explained that upon reviewing

Schucker’s “official position at the time of the RIF [and] her background and entire work

history,” it did not believe that Resolutions Counsel and Special Issues Counsel were

“essentially identical” positions. (Agency Resp. at 16-17.) The Agency asserted that

the “Special Issues Unit is tasked with performing legal work on issues relating to

specialized areas . . . [including] perform[ing] original research and writing on these

specialized issues, supervis[ing] outside counsel and report[ing] to a Senior Counsel,”

(id. at 16), and that the work performed as Resolutions Counsel was “functionally

distinct,” (id. at 17).

On September 17, 2002, the Agency filed a Prehearing Statement. The Agency

again asserted that Resolutions Counsel and Special Issues Counsel were not

“essentially identical” positions. (Agency Prehearing Statement at 11-13.) The Agency

also suggested a list of witnesses and a general summary of expected testimony.

Included on the list were Frank Aaron and Henry Griffin. Aaron was to testify about “the

RIF process, and the determination of [Schucker’s] assignment rights” and Griffin was to

testify about “the duties of a Counsel in the Special Issues Unit, the duties of a Counsel

in the former Resolutions Section, and how these positions differ.” (Id. at 16.)

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 On October 28, 2002, Schucker waived her right to a hearing and agreed to

present the case on written submissions. In an order, the Administrative Judge

explained:

On October 28, 2002, the appellant withdrew her request for a
hearing. Based on the withdrawal, the hearing has been canceled. The
record will remain open for receipt of evidence and argument from both
parties until November 13, 2002. After that date, the record will be held
open until November 20, 2002, for receipt of final argument from both
parties. After November 20, 2002, the record will be closed and no further
submissions accepted.

Schucker v. Fed. Deposit Ins. Corp., No. DC-0351-02-0587-I-1 (MSPB Oct. 30, 2002)

(“Submission Order”).

On November 13, 2002, the Agency submitted the Agency Brief Supporting

Affirmance and the declarations of Aaron and Griffin, which provided, for the first time, a

detailed explanation of why the positions were not “essentially identical.” (Agency’s Br.

Supp. Affirm; Aaron Aff.; Griffin Aff.) Also on November 13, 2002, Schucker filed

Appellant’s Submission of Evidence and Argument in Lieu of Hearing, which included

the affidavit of Gail Jensen. Schucker’s submissions provided comparisons of the

position descriptions.

On November 19, 2002, the Agency submitted its Final Argument In Support Of

Affirmance and supplemental declarations of both Griffin and Aaron, which addressed

Jensen’s affidavit and Schucker’s argument. The Agency included a written request

that the Administrative Judge accept the supplemental declarations, claiming an inability

“to anticipate or address, in its prior submissions” the Jensen evidence and related

argument because neither the witness nor the argument was approved in the pre-

hearing conference. (Letter from Agency to Judge Bogle of 11/19/02, at 1.) The

04-3227 4
Agency concluded: “[t]he Agency believes that the Supplemental Declarations are

needed so that the record will contain accurate evidence on all issues, and are properly

submitted as rebuttal evidence.” (Id.)

On November 20, 2002, via facsimile, Schucker filed Appellant’s Final Argument,

which addressed the Agency’s Brief in Support of Affirmance and, in particular, the

Agency’s position-description comparison. Appellant’s Final Argument began by

explaining how Aaron and Griffin interpreted the descriptions erroneously and ended by

citing Barbara Taft’s opinion of what the positions entailed. Schucker also submitted a

Supplemental Affidavit and a Declaration sworn by Taft, in which Taft critiqued the

views of Griffin and Aaron and opined on the comparability of the positions. Schucker

sent the Supplemental Affidavit and the Declaration as attachments by separate fax

cover. Schucker followed up the facsimiles with original copies of the Supplemental

Affidavit and the Declaration, which Schucker sent via certified mail on November 20,

2002, but which appear date stamped as received on November 21, 2002. In a cover

letter to the original copies, Schucker wrote:

Enclosed please find the original signed affidavits of Ms. Barbara
Taft, copies of which were faxed to you and the agency’s representative
this date, and which are attachments to the Appellant’s Final Argument
also served by fax this date.
If you have any questions concerning this matter, please do not
hesitate to contact me.

(Letter from Schucker to Judge Bogle of 11/20/02.)

On November 21, 2002, by letter, the Agency objected to the entry of the Taft

affidavit and declaration and asked for them to be stricken from the record because

“they were submitted after the deadline for the receipt of evidence in this case and Ms.

04-3227 5
Taft was not approved as a witness.” (Letter from Agency to Judge Bogle of 11/21/02.)

Specifically, the Agency asserted:

On October 30, 2002, you issued an Order which provided that the
record would remain open for the receipt of evidence from the parties until
November 13, 2002. Pursuant to 5 C.F.R. § 1201.58(b), “the record will
close on the date the judge sets as the final date for the receipt or filing of
submissions of the Parties,” unless, as provided in 5 C.F.R. § 1201.58(c),
“the party submitting [additional evidence] shows that the evidence was
not readily available before the record closed.” The Appellant has not
demonstrated why she could not produce Ms. Taft’s Declaration or
Supplemental Affidavit by the November 13 deadline, and has offered no
reason why this evidence should be accepted out of time. In fact, Ms. Taft
states in her “Supplemental Affidavit” that the first contact she had with the
Appellant was “when I was contacted to provide an affidavit to support her
Final Argument in the instant appeal. . . .”
In the alternative, if Ms. Taft’s Declaration and Supplemental
Affidavit are considered in this case, the Agency respectfully requests
additional time to respond with supplemental affidavits to address factual
inaccuracies . . . . [T]he Agency was not provided these documents in
time to respond to them in its Final Argument, and could not have been
expected to anticipate the need to respond to Ms. Taft’s testimony in its
prior submissions. Fundamental fairness requires that the Agency be
provided the opportunity to respond to the factual inaccuracies and other
issues raised by Ms. Taft in her Declaration. See Lamb v. Department of
the Navy, 41 M.S.P.R. 79, 84 n.1 (1989) (“The appellant cannot, in all
fairness, raise material issues just prior to the closing of the record and
then attempt to preclude the agency from responding. Therefore, we will
consider [the agency’s supplemental] affidavits.”)[.]

(Id.) (emphasis added).

On November 22, 2002, Schucker filed Appellant’s Opposition to Agency’s

Motion to Strike Affidavit of Barbara Taft, which responded:

First, the Appellant’s Submission in Lieu of a Hearing was not
governed by the administrative judge’s ruling with respect to witnesses
approved for testimony at the previously-schedule [sic] hearing. The
administrative judge’s Order of October 30, 2002 contained no such
limitation. Moreover, if one considers the typical procedure for deciding
cases without a hearing it is clear that there are no such limitations on the
evidence an appellant can submit. . . . Nothing in the Board’s regulations
suggests that when an appellant waives her right to a hearing the
administrative judge makes rulings as to what evidence the appellant can

04-3227 6
 submit. In the instant case, when the Appellant withdrew he [sic] request
for a hearing, the administrative judge’s prior rulings about who would be
permitted to testify at the hearing became moot. . . .
Second, the agency’s Motion to Strike is without foundation
because Ms. Taft’s affidavit was expressly in rebuttal to the affidavits of
Messers [sic] Aaaron [sic] and Griffin submitted by the agency. If the
agency is suggesting that the parties’ Final Arguments could not contain
evidence to rebut the original submissions filed on November 13th, then
the agency misapprehends the purpose of the administrative judge having
left the record open after those initial submissions. If not for rebuttal, there
would have been no reason for the administrative judge to have left the
record open for responsive pleadings. The fecklessness of the agency’s
argument is apparent when the administrative judge considers that the
agency submitted additional evidence with its final submission, namely
additional “declarations” of Messers [sic] Aaron and Griffin.
Apparently what the agency really aims for is a never-ending reply
opportunity, and hence asks the administrative judge for the right to reply
to Ms. Taft’s affidavit. Inasmuch as Ms. Taft’s affidavit is a rebuttal to
evidence and argument presented by the agency in its November 13th
submission, there is no reason to allow the agency the right to a sur-
rebuttal. If the administrative judge grants that right, then the Appellant
requests the same right. The record may never close under that scenario.
The agency’s reliance on Lamb v. Dept. of the Navy is misplaced
because in this appeal Ms. Taft’s affidavit was a rebuttal to the evidence
and argument the agency provided in its initial submission (Brief In
Support Of Affirmance). Therefore, the issues addressed therein were
already considered by the agency in its original submission; the agency
could have, and should have, expected that the Appellant would avail
herself of the rebuttal opportunity. The agency cannot claim “surprise”
merely because it does not like the substance of the evidence the
Appellant submitted because such evidence supports the Appellant’s
position and shows the lack of support for the agency’s position.

(Appellant’s Opp’n Agency’s Mot. Strike Aff. Barbara Taft.) (underline emphasis added).

Then, on December 3, 2002, the Agency submitted a second supplemental declaration

of Griffin to address the Taft affidavit, unaware that in the interim the Administrative

Judge entered her Initial Decision, dated November 27, 2002.

In the Initial Decision, the Administrative Judge, citing Losure, noted that the

Agency had the burden of proof. Initial Decision at 2-3. With respect to meeting that

burden, Losure provides that

04-3227 7
 [t]he agency may establish a prima facie case on [an] element of its
decision [e.g., that two positions are not “essentially identical”] by coming
forward with evidence. . . . If the employee presents no rebuttal evidence
to challenge the bona fides of the agency’s [evidence], the agency’s initial
evidence would normally suffice to meet also the agency’s burden of
persuasion on this element of its decision. Once the agency makes out a
prima facie case, the burden of going forward with rebuttal evidence shifts
to the employee but the burden of persuasion (more precisely the risk of
non-persuasion) never shifts from the agency. Thus, where credible
evidence, either in the employee’s rebuttal presentation or in the agency’s
own admissions, is sufficient to cast doubt on the bona fides of the
[argument], the agency may find it advisable to present additional
evidence to meet its burden of persuasion. But whether the agency
presents such additional evidence or not, the burden remains on the
agency to persuade the Board by a preponderance of the evidence that
the RIF regulations were in fact [properly applied].

2 M.S.P.R. at 201-02 (emphasis added).

In determining whether the Agency met its burden, the Administrative Judge did

not consider the purported rebuttal evidence “because [that evidence was] filed after the

date set for receipt of evidence (November 13, 2002).” Initial Decision at 1. The

Administrative Judge also did not address Schucker’s arguments in opposition to the

government’s motion to strike the Taft affidavit. Moreover, the Administrative Judge did

not discuss Board policy with respect to rebuttal evidence or explain why Schucker’s

rebuttal evidence should be excluded under that policy. The Administrative Judge

considered only the evidence filed on or before the November 13 deadline and, on that

evidence, ruled that Schucker did not have a right to retreat to Special Issues Counsel

because she found that the Agency met its burden of proving that the positions were not

“essentially identical.” Id. at 2-8.

On February 17, 2004, without responding to Schucker’s argument that the

Administrative Judge should have considered her rebuttal evidence, the Board denied

Schucker’s Petition for Review. The Administrative Judge’s decision thus became the

04-3227 8
Board’s final decision. Final Decision at 1-3. Schucker timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II. ANALYSIS

A. Standard of Review

We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having been followed; or (3) unsupported

by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Gibson v. Dep’t of Veterans

Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998). We review for abuse of discretion the

Board’s exclusion of evidence from the record filed after a filing deadline. See Dorrall v.

Dep’t of Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002).

B. Board Regulations

Board regulations provide that if there is a hearing, “[i]n cases in which the

agency has taken an action against an employee, the agency will present its case first.”

5 C.F.R. § 1201.57(a) (2002). “If the appellant waives the right to a hearing, the record

will close on the date the judge sets as the final date for the receipt or filing of

submissions of the parties.“ Id. § 1201.58(b). “Once the record closes, no additional

evidence or argument will be accepted unless the party submitting it shows that the

evidence was not readily available before the record closed.” Id. § 1201.58(c).

Because Schucker waived her right to a hearing, 5 C.F.R. § 1201.58(b) governs.

Under that regulation, the Administrative Judge sets the final date for the receipt of

submissions. In this case, the Administrative Judge set two dates. Specifically, the

Administrative Judge ordered that the record remain open until November 13, 2002 for

04-3227 9
receipt of evidence and argument from both parties and until November 20, 2002 for

receipt of final argument from both parties. Submission Order. The order made clear

that after November 20, 2002, the record would be closed. Id. Despite the warning that

“[o]nce the record closes, no additional evidence or argument will be accepted unless

the party submitting it shows that the evidence was not readily available before the

record closed,” 5 C.F.R. § 1201.58(c), both parties attempted to submit evidence after

November 13, 2002 without a showing.

On November 19, 2002, with its final argument, the Agency filed two

supplemental affidavits and requested in writing that the Administrative Judge accept

the evidence because it was unable “to anticipate or address, in its prior submissions”

Schucker’s evidence. The Agency characterized this evidence as “rebuttal evidence”

but did not argue that the evidence was not readily available before November 13.

On November 20, 2002, Schucker submitted the Taft affidavit and declaration as

attachments in support of her final argument. Schucker did not request in writing that

the Administrative Judge “accept” the evidence, nor did Schucker contend that the

evidence was not readily available before November 13, 2002. On November 22, 2002,

in a written response to the Agency’s motion to strike her November 20, 2002,

submission, Schucker described Taft’s affidavit and declaration as “rebuttal evidence.”

In the Initial Decision, the Administrative Judge did not consider either party’s

purported rebuttal evidence. Neither the Administrative Judge nor the Board explained

the Board’s policy on accepting rebuttal evidence and how that policy affected the

decision to ignore the parties’ rebuttal evidence. Because the Administrative Judge

ruled in favor of the Agency, only Schucker appealed this evidentiary decision.

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 C. The Parties’ Arguments

Schucker’s primary argument is that regardless whether the Administrative Judge

closed the record to evidence, the Administrative Judge had to consider the Taft

affidavit because it was “rebuttal evidence” to the Agency’s prima facie case. Schucker

argues that she could not have filed the Taft affidavit before November 13, 2002,

because it would have required her to anticipate the Agency’s evidence and to rebut it

by simultaneously filing countervailing evidence. Schucker asserts that because the

agency bore the burden of proof, she only had to rebut or present countervailing

evidence to that offered by the Agency. She argues that could not have been done until

the Agency submitted its evidence. Schucker argues that even if the failure to consider

the Taft affidavit did not violate Board regulations, the failure violated her right to rebut

provided in the Administrative Procedure Act and her right to fundamental fairness

inherent in the Due Process Clause of the Fifth Amendment of the U.S. Constitution.

The Agency responds that the Administrative Judge correctly refused to consider

the Taft affidavit. The government contends that the record closed for evidence on

November 13, 2002, that Schucker did not ask for leave to consider the rebuttal

evidence, that Schucker made no showing that the evidence was “not readily available

before the record closed,” and that Schucker failed to argue in her petition to the Board

that the affidavit was “new and material evidence.” The Agency also argues that

Schucker received notice of the Agency’s evidence and had the opportunity to respond

by November 13, 2002. The Agency notes that the Agency’s position was presented in

the agency record and in the response filed on July 12, 2002, and July 19, 2002,

respectively, and in its prehearing statements and exhibits filed on September 17, 2002.

04-3227 11
The Agency finally contends that because Schucker was aware of and did not object to

the deadline set by the Administrative Judge, she waived her right to submit rebuttal

evidence after November 13, 2002.

D. Discussion

This court generally will not interfere with the conduct of proceedings by

administrative agencies like the Board absent special circumstances. Vt. Yankee

Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978).

However, the court will act if an agency, without explanation, engages in conduct that is

inconsistent with its precedent. “An agency is obligated to follow precedent, and if it

chooses to change, it must explain why.” M.M. & P. Mar. Advancement, Training, Educ.

& Safety Program (MATES) v. Dep’t of Commerce, 729 F.2d 748, 754-55 (Fed. Cir.

1984) (vacating agency decision because agency acted arbitrarily in imposing new

requirement on party contrary to agency’s precedent and without explanation); accord

Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 42 (1983) (“[A]n agency changing its course . . . is obligated to supply a

reasoned analysis for the change. . . .”); Greater Boston Television Corp. v. Fed.

Communications Comm’n, 444 F.2d 841, 852 (D.C. Cir. 1970) (same); cf. NSK Ltd. v.

United States, 390 F.3d 1352, 1357-58 (Fed. Cir. 2004) (vacating agency decision

where agency acted arbitrarily in interpreting statutory provisions in an internally

inconsistent fashion and in not reasonably explaining the inconsistency); SKF USA, Inc.

v. United States, 263 F.3d 1369, 1381-82 (Fed. Cir. 2001) (vacating agency decision

where agency acted arbitrarily in inconsistently defining a term in two provisions of

statute and not reasonably explaining the inconsistency); Nat’l Org. of Veterans v. Sec’y

04-3227 12
of Veterans Affairs, 260 F.3d 1365, 1379 (Fed. Cir. 2001) (remanding an agency

regulation to allow the agency to provide a reasonable explanation for its decision to

interpret virtually identical statutory language inconsistently).

The longstanding policy of the Board to allow parties an opportunity to submit

rebuttal evidence appears in a number of Board decisions, beginning with Schultz v.

Consumer Product Safety Commission, 10 M.S.P.R. 104 (1982). After the appellant in

Schultz, who had the burden of proof, did not request a hearing, the presiding official set

a final date for the receipt of submissions by the parties. 10 M.S.P.R. at 105. On that

closing date, the agency made evidentiary submissions, which the appellant did not

receive until after the record closed. Id. at 105-06. There is no indication whether or

when appellant objected to the closing of the record, or whether appellant made a

proffer of rebuttal evidence before the initial decision. Id. Nonetheless, the Board held

that the presiding official erred in not affording appellant an opportunity to respond, and

inter alia, submit rebuttal evidence, explaining:

The lack of a time limit or other guidelines for closing the record . . .
places the matter within the sound discretion of the presiding official where
the appellant waives a hearing. The presiding official should fix upon a
reasonable time for closing the record based upon all the circumstances of
the particular case. However, where an appeal is decided without a
hearing, the procedures utilized . . . must comport with basic requirements
of fairness and notice, including an opportunity to respond to submissions
of the parties.
In the instant case, the presiding official closed the record without
affording appellant the opportunity to submit evidence and argument to
attempt to rebut and impeach the affidavits submitted by the agency which
constituted key evidence on which the presiding official based her findings
of fact. The Board finds that the action of the presiding official was error.
This error affected the substantive rights of appellant so as to require
reversal and a remand of the case. . . . On remand, the record shall be
reopened and appellant shall be afforded a reasonable opportunity to
respond to the agency’s submissions.

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Id. at 106 (internal citations omitted) (emphasis added).

The policy outlined in Schultz was followed more recently in Nordhoff v.

Department of Navy, 68 M.S.P.R. 45 (1995). In that case, the Board held that an

administrative judge erred in not affording a party an opportunity to respond. In

Nordhoff, appellant waived his right to a hearing and the Administrative Judge set two

closing dates for the record, an earlier closing date for appellant and a later closing date

for the agency. Id. at 48. Before the record closed, appellant objected that he would

have no opportunity to respond to the agency’s submission. Id. After the record closed,

appellant filed a motion to extend the close of the record to allow him to respond. Id.

The Administrative Judge gave him no opportunity to respond and the Board found

error, explaining:

Although setting the deadline for closing the record is within the sound
discretion of the administrative judge, the judge’s rulings in this regard
must comport with basic requirements of fairness and notice, including an
opportunity for a party to respond to material evidence submitted by the
opposing party.
...
The administrative judge’s refusal to extend or reopen the record
was error because it denied the appellant the opportunity to respond to the
agency’s evidence.

Id. In the period between Shultz and Nordhoff, many Board decisions reached the

same result following the same policy. See, e.g., Palmer v. United States Postal Serv.,

50 M.S.P.R. 552, 555 (1991) (“[A]lthough closing the record in an appeal without a

hearing is within the discretion of the administrative judge, parties must be provided an

opportunity to respond to submissions.”); Lewis v. Dep’t of Air Force, 49 M.S.P.R. 442,

445 (1991) (holding that where “appellants waived their rights to hearings, the agencies

submitted rebuttal evidence on the last day the record was open, [but] the administrative

04-3227 14
judge rejected the appellants’ rebuttal[] [evidence,] . . . basic principles of fairness and

notice, including an opportunity to respond to submissions of the parties, require

consideration of the rebuttal evidence”); Borowski v. Dep’t of Agric., 46 M.S.P.R. 564,

566-68 (1991) (holding that administrative judge erred by closing the record in the

remand appeal before allowing appellant the opportunity to reply to the agency’s

response even though appellant voiced no timely objection); Lamb v. Dep’t of Navy, 41

M.S.P.R. 79, 84 n.1 (1989) (“The appellant cannot, in all fairness, raise material issues

just prior to the closing of the record and then attempt to preclude the agency from

responding. Therefore, we will consider these affidavits.”); Anastos v. United States

Postal Serv., 38 M.S.P.R. 18, 19-22 (1988) (holding that administrative judge erred by

closing the record “without affording the appellant the opportunity to submit evidence

and argument to attempt to rebut the evidence submitted by the agency which

constituted key evidence on which the administrative judge based his findings” where

appellant objected on the date the record closed); Groux v. Dep’t of Army, 14 M.S.P.R.

288, 289-91 (1983) (reciting Schultz rule and finding no error where administrative judge

did not grant second extension to respond to agency submission after first extension

was granted).

We have found no decisions of the Board reflecting a change in the policy set

forth in the above-noted cases of allowing an appellant an opportunity to rebut the

government’s evidentiary submissions. These Board decisions, which are hard to

distinguish from Schucker’s case, thus illustrate the longstanding practice of the Board

that it is error to close the record without affording parties an opportunity to submit

rebuttal evidence. By taking a position inconsistent with this longstanding practice,

04-3227 15
without any explanation for the shift, the Board’s action is not reasoned decision-making

and is arbitrary. MATES, 729 F.2d at 754-55.

The Agency contends that the Board’s decision is consistent with Board

precedent supporting the proposition that a party can waive rebuttal if the party does not

take steps to preserve its rights. Specifically, the Agency asserts that Schucker waived

rebuttal because she did not object to the November 13 deadline, did not ask for leave,

and did not assert that the evidence was not readily available or new and material. See

Gavette v. Dep’t of Treasury, 44 M.S.P.R. 166, 173-74 (1990) (reciting policy of allowing

opportunity to respond but holding that administrative judge need not consider evidence

where party did not object to staggered deadlines with the deadline for opponent’s final

submission set later and party showed no prejudice); Grassell v. Dep’t of Transp., 40

M.S.P.R. 554, 563-64 (1989) (reciting policy of allowing opportunity to respond but

holding that administrative judge did not err in ignoring submissions where judge said

that any evidence received after certain date would not be accepted unless it was new

and material evidence unavailable before the record closed, and where appellant made

his only submission after the deadline, made no request for more time, and did not

indicate that it was new and material); Dougherty v. Office of Pers. Mgmt., 36 M.S.P.R.

117, 119-21 (1988) (same as Grassell). Other Board opinions, however, may support a

party’s right to submit rebuttal evidence if the party submits rebuttal evidence within a

reasonable time. See Montreuil v. Dep’t of Air Force, 55 M.S.P.R. 685, 692 & n.2

(1992) (suggesting that appellant only waives objection to the judge’s failure to provide

him an opportunity to respond “where, during the . . . period between the close of the

record and . . . the initial decision, he failed to file an objection . . . [,] request reopening

04-3227 16
of the record[,] or offer rebuttal evidence”); Adams v. Dep’t of Navy, 51 M.S.P.R. 276,

280-82 (1991) (suggesting that it is error for administrative judge not to consider rebuttal

evidence submitted after closing date if a party moves to reopen record, objects to

evidence in need of rebuttal, or actually submits the rebuttal evidence); Losure,

2 M.S.P.R. at 201-02 (suggesting that as to rebuttal evidence, “[on]ce the agency

makes out a prima facie case, the burden of going forward with rebuttal evidence [then]

shifts to the employee”).

In this case, the Board did not explain that Schucker waived her rebuttal rights

because she failed to object to a deadline, ask for leave, or make a showing. The

Administrative Judge simply refused to consider the purported rebuttal evidence, citing

only the November 13 deadline. Accordingly, we decline, in the first instance, to

address whether Schucker may have waived her rebuttal right under Board precedent.

Sec. and Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947) (holding that a

reviewing court may not supply a reasoned basis for the agency’s action that the

agency itself has not given); Greater Boston Television, 444 F.2d at 851 (“[T]he

court . . . must not be left to guess as to the agency’s findings or reasons.”).

The Agency also argues that Schucker had notice of the type of evidence that

the Agency would submit or, at least, should have anticipated it. The government thus

contends that Schucker should have submitted rebuttal evidence simultaneously with

the Agency’s November 13, 2002 submission. Both the Agency’s Response and its

Prehearing Statement, however, presented only superficial arguments why the positions

were “essentially identical.” Neither document contained the evidence which Schucker

addressed in the Taft affidavit’s line-by-line rebuttal of the Agency’s submitted evidence.

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Moreover, the notion of “anticipating evidence” runs counter to the policy enunciated in

Schultz and Losure and the importance of the opportunity to present rebuttal evidence

reflected in that policy.

Finally, the Agency argues that this court’s decision in Dorrall v. Department of

Army shows that the Board did not abuse its discretion in refusing to consider

Schucker’s rebuttal evidence. 301 F.3d at 1380. In Dorrall, we held that the Board did

not abuse its discretion when it chose not to consider a “Statement in Support of

Appeal” submitted after the deadline set by the Board, noting that “Dorrall failed to show

due diligence or the existence of circumstances beyond his control that prevented him

from meeting the filing deadline.” Id. Dorrall deals, however, with appellant’s burden to

submit jurisdictional facts into the record at the outset of an appeal. That is in contrast

to Schultz, in which the Board already had jurisdiction, the record had been compiled,

and the question was whether fairness required that appellant be given an opportunity

to respond to a material agency submission in an appeal from a reduction-in-force

decision.

In Frampton v. Department of Interior, we held that an administrative judge

abused his discretion during a hearing by summarily prohibiting the petitioner “from

completing the presentation of his evidence” on one of petitioner’s principal defenses to

an adverse personnel action. 811 F.2d 1486, 1489 (Fed. Cir. 1987). With respect to

the parameters of a fair hearing and the right to present evidence, we said:

A fair hearing for employees who appeal to the MSPB from agency
decisions is the basic cornerstone of employee rights. Under the statutory
scheme, the hearing before the presiding official of the MSPB is the only
opportunity which a discharged employee or one subjected to an adverse
personnel action has to a de novo trial before an impartial judge.
See 5 U.S.C. §§ 7701, 7703. This is so because the scope of judicial

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 review is severely limited by the language of the statute.
See 5 U.S.C. § 7703(c)(3). Many of these cases turn on findings of fact
made by the presiding official on the basis of conflicting evidence.
Consequently, his findings of fact result in the affirmance of MSPB
decisions in all cases where the court finds that only factual issues are
involved and that such findings are supported by substantial evidence.
. . . [P]residing officials have the authority to exclude truly irrelevant
or overly repetitious testimony. Perkins v. Veterans Administration, 21
M.S.P.R. 58, 60 (1984). However, they should scrupulously avoid rulings
which deny employees the fair and impartial trial guaranteed to them by
the statute and regulation. When, as in this case, a presiding official cuts
off an employee’s attempt to present his testimony, supporting evidence,
or defenses, the presiding official risks reversal of his decision. . . .
. . . Congress included the provision on hearings in that portion of
the Act “in order to protect the right [sic] of employees” and to guarantee
“a full and fair consideration of their case” . . . .
. . . Since petitioner was summarily prohibited from completing the
presentation of his evidence on this issue, he was effectively denied the
right to the full and fair hearing envisioned. . . .

Id. (internal citations omitted). We also observed that “petitioner and his attorney were

not without fault in the presentation of petitioner’s case before the presiding official” and

counseled that petitioner should be better prepared. Id. at 1490.

Frampton is not controlling in the present case because Schucker waived her

right to a hearing and chose to present her case on submissions. However, Frampton

reflects that fairness in adjudicating employee’s rights is a cornerstone of proceedings

before the Board. Even if the petitioner can be faulted for less than efficient

presentation of evidence, that does not permit the Board, without explanation, to act in

an inconsistent way.

Because the Board excluded Schucker’s rebuttal evidence and failed to offer a

reasonable explanation for either changing or not following its longstanding practice of

affording parties an opportunity to submit rebuttal evidence, we conclude that the Board

acted arbitrarily. We vacate the Board’s decision and remand for further proceedings

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consistent with this opinion. In light of our decision, we need not and do not consider

Schucker’s claims based on due process or the Administrative Procedure Act.

VACATED AND REMANDED

III. COSTS

No costs.

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