Reeves v. Department of the Army ( 1981 )

This appeal of a final decision of the Merit Systems Protection Board (MSPB) is governed by the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, and is before the court on petitioner’s Rule 181 request that the appeal be referred to a trial judge. Petitioner advances several justifications for the suggested referral. All of his justifications are reducible to the propositions that (a) the evidentiary record fashioned at the administrative level is incomplete because of errors committeed by the MSPB hearing official and because of the emergence of new evidence, and (b) because the evidentiary record is incomplete, a trial judge of this court should preside over a de novo trial of petitioner’s claims.

Even assuming arguendo that proposition (a) is correct, we cannot agree with proposition (b). Congress has made clear that, under the Civil Service Reform Act of 1978, the following is to be the general rule: "If the court determines that further evidence is necessary, it shall remand the case to the [MSPB] 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. Thus, in this case, if we determine that a hearing is necessary for the purpose of supplementing the administrative record with additional evidence, we would remand the case to the MSPB (rather than to our trial division) to conduct such a hearing.

it is therefore ordered that petitioner’s Rule 181 request is denied.