Labor & Employment Law

Impartiality of the hearing officer
Bieber v Department of the Army, CA, Fed. Cir., Index 01-3058 The Bieber case involved an issue sometimes encountered in a challenge to a disciplinary determination: a complaint that the conduct of the hearing officer prevented the individu­al from receiving a fair hearing and violated the individual's right to administrative due process. Robert A. Bieber challenged his dismissal from service with the Army after the US Merit Systems Protection Board rejected his appeal of disciplinary action taken against him [Matter of the Appeal of Robert Bieber, DE0752990330-I-1]. Bieber was terminated after being found guilty of insubordination, disrupting the workplace, and making a false statement concerning his supervisor.

Bieber complained that the administrative law judge denigrated his concerns that led to disciplinary action being taken against him and demonstrated a "deep-seated antago­nism" against him in the course of the disciplinary hearing. According to the Circuit Court, the basic question here was whether the administrative judge's conduct during a disciplinary hearing constituted a deprivation of administrative due process.

The court's conclusion: the administrative judge's actions did not rise to the level of a due process violation and that the Merit Board's findings are supported by substantial evidence. Bieber, an Army management analyst, had a number of confrontations with co-workers and supervisors because, in Bieber's view, his co-workers wore inappropriate casual clothing at work and his supervisors failed to provide adequate guidance as to what cloth­ing was appropriate. He persisted in challenging his co-workers and his supervisors concerning the "dress code" despite being told that it was not his responsibility to determine what other person­nel should wear and that he should stop confronting his co-workers about their attire.

The decision notes that while at least one supervisor "agreed with Bieber that jeans and sneakers were inappropriate office attire," he was nevertheless told that employees would not be forbidden from wearing them. In the course of the disciplinary hearing that followed, the administrative law judge denigrated Bieber's dress code concerns by stating that "I really think what people wear to work is no concern of their fellow employees," and repeatedly stated that he could not understand why Bieber "continued to be obsessed with [the dress code issue]."

According to the decision, the administrative judge "went so far as to state that Bieber's frequent berating of his coworkers regarding their clothing `defies civility....'" The court said that where there "undeniable bias on the part of the [administrative judge] ... [this] makes the [administrative judge] partisan ... when he [or she] should have been neutral and nonpartisan," and thus taints the administrative law judge's decision, thereby depriving the individual of administrative due process. The court said that while it did not condone the remarks of the administrative law judge in this case and some of his remarks "were plainly inappropriate," it did not conclude that Bieber had been denied administrative due process under the standard set out by the U.S. Supreme Court in Liteky v United States, 510 US 540.

In Liteky, the Supreme Court said that a showing of "deep-seated ... antagonism" toward a party is necessary for a successful bias or partiality motion under the federal judicial recusal statute, 28 USC Section 455, "where the motion is based on the judge's conduct in the course of the proceeding." In the words of the Supreme Court, "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinari­ly do not support a bias or partiality challenge ... unless they reveal an opinion that de­rives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible."

Considering the high standard set by Liteky, the Circuit Court concluded that in this instance "the administrative judge's comments simply do not rise to the Liteky threshold of evidencing `a deep-seated favoritism or antagonism that would make fair judgment impossible.'" The court said that the administrative law judge's comments in Bieber's case were less objectionable than the trial judge's statements and conduct in another case, Logue v Dore, 103 F.3d 1040, where the trial judge stated that "I totally disbelieve plaintiff in this case" and "I think he's an absolute and incorrigible liar." In considering the appeal in Logue v Dore, the Circuit Court decided that the trial judge's comments did not violate due pro­cess under Liteky standard. In another decision, Haebe v Department of Justice, 01-3119, the Federal Circuit Court of Appeals considered the role of an administrative appellate body in reviewing the deter­mination of an administrative law judge.

The court pointed out that it is the hearing offic­er, not the review panel, which determines the issue of credibility of a witness. In Haebe the court overturned a decision by the federal Merit Systems Protection Board [MSPB], finding that the Board had substituted its findings concerning credibility for that of the Administrative Judge's. The federal Drug Enforcement Agency [DEA] dismissed Special Agent Todd R. Haebe after it determined that he had "falsified statements on a report and failed to follow writ­ten instructions with respect to that report."

An Administrative Law Judge overturned DEA's decision and order it to reinstate Haebe to his former position with back pay. The Federal Circuit said that "[b]ecause the MSPB substituted its credibility findings in lieu of the [administrative law judge's] demeanor-based credibility findings without sufficiently sound reasons for doing so," and because it misapplied the intent element of the falsification charge, the MSPB's final decision "was arbitrary, capricious and unsup­ported by substantial evidence."