In the Matter of the Complaint Against THE ROBERTSON-TAYLOR COMPANY Suite 290 781 W. Oakland Park Boulevard at Fort Lauderdale, FL 33311-1729 P.S. Docket No. 16/98; P.S. Docket No. 16/99; P.S. Docket No. 16/100; P.S. Docket No. 16/101; P.S. Docket No. 16/102; P.S. Docket No. 16/120; P.S. Docket No. 16/121 07/12/84 Cohen, James A. APPEARANCE FOR COMPLAINANT: HildaRosenberg, Esq. Consumer Protection Division United States Postal Service Law Department Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Lee H. Harter, Esq. 2256 Van Ness Avenue San Francisco, CA 94109-2513
In connection with its appeals from four Initial Decisions of an Administrative Law Judge, Respondent, on March 8, 1984, filed a motion for a stay of the proceedings, an evidentiary hearing on its contentions and a new trial. In support of its motion, Respondent alleges errors in the hearing transcript and improprieties in the court reporter's certification of the transcript. Similar issues have been raised throughout these proceedings.
Prior to the hearing scheduled in these cases, Respondent, on July 13, 1983, filed a motion to supplement the record by means of a video cassette recording of the witnesses at the hearing. The Administrative Law Judge denied the motion.
The hearing was held on July 18-22, 1983. Following the hearing, Complainant, by motion of August 29, 1983, requested eight pages of corrections of "inaccuracies" which it asserted "do not go to any major issues in the case nor do they prejudice either party." Respondent filed a motion dated the same day in which it alleged that the signatures on the Certificate of Reporter and the Certificate of Transcriber and Proofreader were forged; that the transcript was filled with errors; and that it was impossible for Respondent or its counsel to recompile the four days of transcript accurately. Respondent listed five examples of alleged errors. Respondent also contended that it had been denied a fair hearing and requested a stay and dismissal of the proceedings or alternatively a new trial before "a reporter who can accurately report the transcript and further, that the transcript be supplemented as originally requested."
By Order of August 31, 1983, the Administrative Law Judge denied Respondent's motion, but permitted it to file a motion to correct the transcript and respond to Complainant's motion to correct. The Administrative Law Judge stated that Respondent's assertion relating to the impropriety of the transcript certification does not go to the merits of the proceeding, but the matter was being referred to the contracting officer. He also stated he was "not persuaded that the extent and value of errors in this transcript required a new hearing or dismissal of the proceedings."
Prior to the issuance of the Initial Decisions by the Administrative Law Judge, Respondent filed a motion with the Judicial Officer on September 8, 1983, requesting the proceedings be stayed and dismissed or alternatively a new trial be granted. Various procedural violations were alleged, including the alleged erroneous and falsely certified transcript. Respondent's motion was denied because it was considered to be a request for an interlocutory ruling which was not supported by a showing of extraordinary circumstances.
On September 13, 1983, in a motion to correct, Respondent objected generally to the transcript correction procedure, but moved to have corrected the transcript errors noted in its August 29, 1983, motion. On September 19, 1983, the Administrative Law Judge granted both parties' motions for corrections, including five additional corrections which had been requested by Complainant. The corrections were listed as an addendum to the transcript.
Following the Administrative Law Judge's Initial Decisions of October 25 and 28, 1983, Respondent, on November 7, 1983, filed another motion with the Judicial Officer to stay proceedings; to dismiss the proceedings for procedural reasons; or to grant a new trial. Included in the motion were its contentions that the transcript was erroneous and falsely certified. The motion was denied November 9, 1983, without prejudice to Respondent raising the issues in its exceptions to the Initial Decisions.
Respondent filed its exceptions on November 30, 1983, incorporating by reference its motion filed November 7, 1983, and requesting that each argument therein be considered as separate exceptions.
In the motion presently being considered, which was filed March 8, 1984, Respondent requests a stay of all proceedings pending the outcome of an evidentiary hearing on its allegations that the certifications of the reporter were forged; the transcript did not comply with the requirements of the Postal Service contract; and there has been a "cover up" of the alleged forgery. Respondent also requests a new trial on the merits to assure an accurate transcript if the requested hearing on the certification and the transcript supports its contentions. Respondent incorporates by reference all its previously filed motions and arguments regarding the transcript question. To support its allegation that the signatures on the transcript certifications were forged, Respondent attached a report by an examiner of questioned documents. The report concluded that a signature on one of the certificates was that of the reporter but the signatures purporting to be the reporter on the other three certificates were not. Respondent also requested that information be obtained and made of record on whether the Administrative Law Judge referred the certification matter to the contracting officer as he stated in his Order of August 25, 1983. Respondent contends that if a referral has not been made the agency is engaged in a "cover up" of the alleged forgery.
Complainant, in its opposition to the motion filed March 26, 1984, objects to Respondent's requests, arguing that even if the allegations of forgery are true, Respondent's remedy is to correct the inaccuracies in the transcript. However, it adds that to eliminate any appearance of impropriety the reporter has agreed to review and recertify the transcript and his executed affidavit will be submitted later.
Following several extensions of time, on April 23, 1984, Respondent filed the signed affidavit of the reporter with exhibits including errata sheets of the reporter's review of the transcripts and new Certificates of Reporter and Certificates of Transcriber and Proofreader. The reporter attested in the affidavit that he personally signed one of the Certificates of Reporter which was at the end of the first volume of the transcript, and that the other certificates in the remaining volumes of the transcript were signed for him by a member of the staff of his reporting company. Further, he attested that after reviewing his stenographic notes and comparing them to the transcript he found several minor errors, generally typographical or spelling mistakes, which he listed on the attached sheets. With those errors corrected, he attested that the four volumes of transcript "are a true, accurate and complete transcript of the verbatim record made by him of the administrative hearing. . ."
By Order of April 24, 1984, Respondent was allowed time to file any response to the affidavit, "and to show cause why its Motion should not be denied because of its failure to show specific prejudice to it." The Order further directed that
"Respondent should ascertain if there need be any further specific corrections or additions to the transcript. If so, its attorney should confer with Complainant's attorney and the parties should endeavor to reach an agreement on the corrections or supplements to the record. If they cannot agree, Respondent should file its proposed corrections by May 22, 1984, with a showing why it would be prejudiced if the corrections are not ordered."
On May 30, 1984, Respondent filed its response to the Order to show cause, incorporating by reference all other filings regarding the transcript, in particular a letter dated April 18, 1984, to the Judicial Officer responding to Complainant's opposition to its motion. Basically, the response sets forth reasons to support Respondent's request for a new hearing in this case because of the alleged deficiencies and irregularities in the transcript and the certifications. Respondent did not file further proposed corrections to the transcript.
In determining this motion, all of Respondent's arguments pertaining to the transcript question in its many filings have been considered. Respondent's request for a hearing on the question of the signing of the transcript certifications is denied. From Respondent's report of the examiner of questioned documents, as well as the affidavit of the reporter himself, it is evident that one of the certifications was signed by the reporter and that the other certifications were not signed by him. There is no reason to go beyond that reporter's statement in his affidavit that the other certifications were signed for him by staff of the reporting company. The reporter's adoption of the signature on the certificates as his own binds him to the statements made in the certificates. Cf., United Bonding Ins. Co. v. Banco Suizo-Panameno, S.A., 422 F.2d 1142, 1147 (5th Cir. 1970). Furthermore, the reporter has submitted new certifications signed by him which have been made a part of the record.
The dispositive issue raised by Respondent is whether a new hearing is warranted because of the errors in the transcript. In its filings Respondent points to the eight pages of corrections submitted by Complainant to the Administrative Law Judge as demonstrating a need for a new hearing to have an accurate record. It argues that if the Administrative Law Judge had granted its motion to supplement the record by use of a video cassette recording of the hearing there would be no problem.
The Administrative Law Judge's denial of the motion to supplement was an appropriate exercise of his discretionary authority in presiding at the hearing in these cases. While Respondent objects to the transcript correction procedure allowed in this case it has not established that this procedure is inadequate to provide a proper record. To establish error in the procedure followed here, Respondent must show substantial prejudice, which it has not done. Cf., Marathon Oil Co. v. EPA, 564 F.2d 1253, 1265 (9th Cir. 1977).
The Rules of Practice in Proceedings Relative to False Representation and Lottery Orders, at 39 C.F.R. § 952.22(b), establish a procedure for making corrections to the transcript. The parties were afforded ample opportunity to propose corrections and the Administrative Law Judge ruled on their requested corrections. The corrections ordered by the Administrative Law Judge constitute a part of the official record. Respondent has filed no exceptions to specific corrections ordered by the Administrative Law Judge.
By Order of the Judicial Officer of April 24, 1984, Respondent was directed to show specific prejudice to it, and to file additional proposed corrections. Respondent did not file any additional proposed corrections. While it asserted prejudice because the original transcript notes have not been made available, it has not shown that a good faith effort to reconstruct the testimonial record has been undertaken. Rather, it continues to object to the entire transcript correction procedure and to seek to obtain a new hearing.
In his denial of Respondent's original request for a new trial the Administrative Law Judge ruled that he was "not persuaded that the extent and value of errors in this transcript required a new hearing or dismissal of the proceedings." (Order of Aug. 31, 1983). The transcript of the four-day hearing in these cases has 664 pages. Although Complainant filed eight pages of corrections, it has characterized the corrections as "generally insignificant", many being spelling mistakes, and most of the changes "could be ascertained by reference to the exhibits, the context of the discussion in the transcript or from other documents filed by the parties prior to the hearing" and the inaccuracies "did not go to a major issue in the case nor prejudice either party." (Opp. filed March 26, 1984, to Respondent's Motion, at p. 7). Respondent has not demonstrated that this characterization is erroneous, nor has it shown error in the Administrative Law Judge's finding that the "extent and value of errors" did not warrant a new hearing.
At most, Respondent asserts generally that there are discrepancies in the errata sheets submitted with the Reporter's affidavits and with the corrections approved by the Administrative Law Judge. Neither party has moved to have the record corrected in accordance with the errata sheets submitted by the reporter. Therefore, review of the substantive issues will be based on the evidentiary record that was before the Administrative Law Judge. Other than the errors which the Administrative Law Judge allowed as corrections, the only specific matters referred to by Respondent is at pages four and five of its letter of April 18, 1984. It contends that certain testimony of Complainant's witness Dr. Kramer is inconsistent, and shows either testimonial error by Dr. Kramer or error in the reporting of the testimony. Those matters will be considered when the substantive issues are decided.
Respondent's general objection to the transcript correction procedures has no merit. The procedures used are consistent with principles of judicial fairness and economy and the general practice in federal tribunals. Correction of the record, rather than a new hearing is the appropriate remedy. E.g., United States v. Renton, 700 F.2d 154 (5th Cir. 1983); Herndon v. City of Massillon, 638 F.2d 963 (6th Cir. 1981); Illinois Central Railroad Co. v. Riley, 392 F.2d 787 (6th Cir. 1968); Hydramotive Mfg. Corp. v. S.E.C., 355 F.2d 179 (10th Cir. 1966); United States v. Jones Coal Co., 325 F.2d 877 (6th Cir. 1963); Foley Lumber Indus., Inc., v. Buckeye Cellulose Corp., 286 F.2d 697 (5th Cir. 1961); Columbia Transp. Co., v. United States, 167 F. Supp. 5 (E.D. Mich. 1958); Secretary of Labor v. Hamilton Foundry Div., 44 Ad. L. 2d (Pike & Fisher) 152 (OSHRC Docket No. 77-1300, Aug. 30, 1978). Respondent had the same opportunity as Complainant to propose transcript corrections. Therefore, it can show no prejudice by lack of opportunity for proposing corrections. Respondent has not shown there are any uncorrected inaccuracies remaining in the record which would prejudice the fair consideration of these proceedings.
Respondent's charge of "cover up" raises no genuine issue. Whether the Administrative Law Judge referred the matter to the contracting officer or whether the contracting officer took any action against the stenographic reporting company is solely a matter between the Postal Service and the reporting company and does not constitute a "cover up" nor raise even a suspicion of improper conduct. The contractual relationship between the Postal Service and the reporting company confers no rights on Respondent.
All of Respondent's contentions have been considered. No prejudice to Respondent has been found. Moreover, no showing has been made that the evidentiary record is not satisfactory for the determination of the substantive issues raised in this proceeding. Accordingly, Respondent's motion to stay proceedings, for an evidentiary hearing and for a new trial is denied.