CONTOURS OF AN MSPB VIRTUAL HEARING
Although the Board has more than 2,600 petitions for review pending, a tally increasing at the rate of 40-60 a month, and although the Board is not likely to be soon filled with confirmed members, the administrative judge corps continues its work of receiving and adjudicating appeals--with a critical distinction brought about by the pandemic. Hearings are now virtual.
The Board is using a government-Zoom platform. We report on one quite recent hearing lasting a bit more than four days involving a performance-based removal and WIGI denial litigated by your publisher/counsel for the appellant.
As performance cases tend to do, this one involved lots of documents accumulated through a year-long appraisal period, followed by a months-long PIP, a proposal, reply, and decision.
For the prehearing submission, the parties' counsel had to closely cooperate to group documents--done through a stipulated master file of materials--uploaded to the Board's website after scans of the documents in piles not exceeding 10 Mb, the limit to the size of an individual upload to the Board e-filing portal.
At about the same time that the prehearing conference was scheduled, the AJ sent the parties a detailed set of instructions entitled "Zoom for Government Hearing Information" explaining the best choice for a web browser (Chrome), standards of conduct for participants, restrictions against recording or public sharing of hearing information, avoidance of mobile devices for the hearing, use of private space with neutral background, avoidance of distractions, and information to be given to witnesses who connect to the hearing and are placed into electronic waiting rooms until the judge is ready for their testimony.
The Board sets up a test session, well before the hearing, so the parties can connect into the Zoom system and learn how the system operates and try it out with the assistance of a Board employee who participates in the test. The system is not exactly intuitive, and it may take more than one practice session, or some emailed inquiries to the AJ or the AJ's paralegal, to become comfortable with the system's operation..
On the day of the hearing, everyone Zooms in (using the address and passcode provided by the Board), images appear of people sitting around their dining room tables, and a court reporter joins in (virtually).
Things go wrong. People find themselves tossed off the system because of overloaded Internet circuits. Computer batteries fail when people don't plug in their power supplies. Echos may develop making it difficult either to speak (try talking with the sound reflected back to you a second later), video freezes up. Someone drops out and no one notices for a few moments. Webcams slip, providing great images of furniture or carpets. People have to reconnect, with attendant delays. People in different time zones may be confused as to when they are supposed to appear at the hearing. But glitches can be addressed through phone calls or email traffic, and the process gets back on track.
Documents are a problem: moving from page to page is very slow on the system. With large documents, the person controlling the document-sharing facility can speed things up by figuring out in advance what page to move to and using Acrobat to jump ahead in the document. If one must page through documents, it is tedious. Documents that are to be used during the hearing should be open (or in a position be to quickly opened) on the computer of the attorney seeking to use them during examination of a witness.
With all that, if everyone is patient and maintains a sense of humor, the system works--in its fashion. The publisher/author's cat Petey made an appearance, as did the dogs of two of the participants--at one point the dogs were barking at each other over the Zoom system.
The Board would do well to prepare a video showing how a hearing works on the system--with or without dogs and cats. Helpful would be the ability to upload documents exceeding 10 Mb to the Board's e-filing portal.
Critical to counsel is participation in the test run of the Zoom system before the hearing. It may take an hour, but counsel will develop some proficiency and be more comfortable with the process come the hearing. The Board record that results is the audio of the hearing (unless a written transcript is ordered by a party). The video is not part of the permanent Board record.