## Facts

- Paul Vaughan Gearan petitioned the U.S. Court of Appeals for the Federal Circuit for review of an adverse administrative decision involving the Department of Health and Human Services (HHS), after proceedings before the Merit Systems Protection Board (MSPB).
- Gearan’s MSPB hearing was recorded on tape by a court-reporting service, and the tape recording was included in the official record transmitted for judicial review.
- MSPB procedures allowed a party to obtain a written transcript by requesting transcription of the tape, generally at the requesting party’s expense, with limited exceptions upon a written motion showing good cause.
- During the Federal Circuit appeal, Gearan filed a motion asking the court to order the MSPB to prepare and file a written transcript of the hearing as part of the official record.
- Gearan argued that Federal Rules of Appellate Procedure 16 and 17 required agencies to provide written hearing transcripts in the record on review, and that the MSPB (not the petitioner) had to arrange and pay for transcription.
- HHS opposed the motion, and the MSPB appeared as an intervenor opposing the requested order.

## Issues

1. Whether a tape recording of an MSPB hearing satisfies the statutory requirement in 5 U.S.C. § 7701(a)(1) that the Board “keep a transcript” and “keep a record of the proceeding.”
2. Whether Federal Rules of Appellate Procedure 16 and 17 require the MSPB to prepare, file, and pay for a written transcript when the record already contains the hearing tape.
3. Whether the court should compel the MSPB to provide an agency-funded written transcript absent a showing qualifying for an exception under MSPB transcript regulations.

## Decision

- The Federal Circuit denied Gearan’s motion to compel the MSPB to prepare and file a written transcript as part of the official record.
- The court held that the MSPB’s maintenance of a tape recording satisfies the “transcript” requirement of 5 U.S.C. § 7701(a)(1).
- The court rejected Gearan’s reading of Federal Rules of Appellate Procedure 16 and 17, concluding they did not require the MSPB to create and fund a written transcript beyond what the statute and MSPB regulations require.
- Relying on the court’s prior decision in *Gonzales v. Defense Logistics Agency*, the court approved the MSPB’s regulatory approach: hearings are tape-recorded, and written transcripts are available upon payment of costs, with limited exceptions for good cause shown.
- The court found Gearan’s claim of prejudice from the absence of a written transcript to be speculative in light of the availability of the hearing tape.

## Legal Principles

- For MSPB proceedings, a tape recording can qualify as a “transcript” for purposes of 5 U.S.C. § 7701(a)(1), so long as the hearing is recorded and the record is preserved for review.
- MSPB may, by regulation (including 5 C.F.R. § 1201.53), provide that written transcripts are prepared upon request at the requesting party’s expense, subject to limited exceptions when good cause is shown.
- Federal Rules of Appellate Procedure 16 and 17 govern the record on review and its transmission, but they do not require an agency to create a written transcript when an adequate hearing recording is already part of the administrative record.
- A party seeking an order requiring agency-paid transcription must show more than speculation about prejudice where the hearing recording is available.

## Conclusion

In *Gearan v. Department of Health and Human Services*, the Federal Circuit denied a petitioner’s motion to require the MSPB to prepare and file a written hearing transcript at government expense, holding that the hearing tape satisfied the statutory transcript/record requirement and that the appellate rules did not impose a duty on the MSPB to produce or fund a written transcript absent a qualifying regulatory exception.


Gearan v. Department of Health and Human Services, 838 F.2d 1190 (1988)