Bradbie v. Equal Employment Opportunity Commission ( 1981 )

The petitioner has suggested that, pursuant to our Rule 181, we refer his appeal of an adverse decision of the Merit Systems Protection Board (Board) to our Trial Division "for the purpose of permitting a deposition or other discovery by the petitioner to supplement the record on appeal in this case,” or, alternatively, that we "stay this appeal pending referral to the hearing examiner of the [Board] for a similar purpose.”

Rule 181 provides, inter alia,

On or before the completion of the briefing on appeal, a party may suggest the appropriateness and give his reasons for a referral to a trial judge by the court of the appeal. Such a suggestion shall be made by letter to the clerk .... The court will then determine whether to refer the appeal to a triad judge.

It does not, however, extend or limit our jurisdiction as established by law. Rule 171(b).

The Civil Service Reform Act of 1978 only authorizes us to

review the record and hold unlawful auid set aside amy agency action, findings, or conclusions found to be—

(1) arbitrary, capricious, am abuse of discretion, or otherwise not in accordance with law;

(2) obtaiined without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substamtiad evidence.

5 U.S.C. § 7703(c) (Supp. II 1978). "If the court determines that further evidence is necessary, it shadl remand the case to the Board for further processing as appropriate.” S. Rep. No. 95-969, 95th Cong., 2d Sess. 64, reprinted in [1978] U.S. Code Cong. & Ad. News 2723, 2786. We are not authorized to take additionad evidence. Consequently, petitioner’s suggestion that we refer this matter to our Triad Division for the taking of additionad evidence is denied.

We also reject petitioner’s alternate suggestion that we stay this appeal pending referral of the case to the hearing examiner of the Board to take additional evidence. Although we have the power to remand to the Board (not a hearing examiner of the Board) to take additionad evidence, petitioner’s letter-request does not establish that this action is appropriate at this time. Petitioner may request the Board to reopen the administrative record to taike additional evidence. See 5 C.F.R. §§ 1201.113-.116 (1980). If the Board indicates its willingness to do so, petitioner then may ask us anew to stay proceedings.

Accordingly, both of petitioner’s suggestions are denied.