[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Proposed Rules]
[Pages 33663-33683]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13655]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / 
Proposed Rules

[[Page 33663]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1200, 1201, 1203, 1208, and 1209


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Proposed rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board), 
following an internal review of MSPB regulations and after 
consideration of comments received from MSPB stakeholders, is proposing 
to amend its rules of practice and procedure in order to improve and 
update the MSPB's adjudicatory processes.

DATES: Submit written comments on or before July 23, 2012.

ADDRESSES: Submit your comments concerning this proposed rule by one of 
the following methods and in accordance with the relevant instructions:
    Email: mspb@mspb.gov. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments to the MSPB's proposed 
rule. The MSPB asks that parties use email to submit comments if 
possible. Submission of comments by email will assist MSPB to process 
comments and speed publication of a final rule;
    Fax: (202) 653-7130. Faxes should be addressed to William D. 
Spencer and contain a subject line indicating that the submission 
contains comments concerning the MSPB's proposed rule;
    Mail or other commercial delivery: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419;
    Hand delivery or courier: Should be addressed to William D. 
Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW., Washington, DC 20419, and delivered to the 5th floor 
reception window at this street address. Such deliveries are only 
accepted Monday through Friday, 9 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: As noted above, MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
included in the public docket without change and will be made available 
online at www.mspb.gov/regulatoryreview/index.htm, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information or other information 
whose disclosure is restricted by law. Those desiring to submit 
anonymous comments must submit comments in a manner that does not 
reveal the commenters identity, include a statement that the comment is 
being submitted anonymously, and include no personally-identifiable 
information. The email address of a commenter who chooses to submit 
comments using email will not be disclosed unless it appears in 
comments attached to an email or in the body a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419; (202) 653-7200, fax: (202) 653-7130 or email: mspb@mspb.gov.

SUPPLEMENTARY INFORMATION: This proposed rule is the product of a 
comprehensive internal review of MSPB's adjudicatory regulations, the 
first such review since the establishment of MSPB in 1979. This review 
began in January 2011 when the Board solicited suggestions for 
revisions to MSPB's adjudicatory regulations from MSPB staff. 
Subsequently, an internal working group was created to review the 
proposals submitted by MSPB staff, identify meritorious proposals, and 
develop draft amendments to MSPB's regulations. During the working 
group's deliberations, MSPB also received two requests for rulemaking 
from interested parties, and those requests were considered during the 
internal review process.
    The recommendations prepared by the internal working group were 
preliminarily evaluated by the Board Members. The internal working 
group then sought input from over 30 stakeholder agencies, 
organizations, and individuals in accordance with the public 
participation requirement in Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' The stakeholders were invited to 
provide comments concerning the preliminary recommendations of the 
working group. The stakeholders were also asked to propose needed 
changes to any of MSPB's adjudicatory regulations not identified by the 
internal review. Comments were received from 15 stakeholders, and those 
entities were offered an opportunity to present any additional comments 
at a meeting with representatives of MSPB's internal working group. 
That meeting was held on March 6, 2012, at MSPB's headquarters, and the 
6 stakeholders who responded to the invitation were each allocated 10 
minutes to speak. Although members of MSPB's internal working group 
attended the meeting to hear the presentations by the stakeholders, the 
Board Members did not attend. Following the stakeholder presentations, 
MSPB's internal working group reconvened to draft a proposed rule for 
consideration by the Board Members.
    The proposed rule published today is therefore the result of the 
most comprehensive review of MSPB's adjudicatory procedures ever 
undertaken. In order to ensure transparency and to assist the parties 
who wish to comment, MSPB's communications with stakeholders, responses 
received from the stakeholders, and a transcript of the stakeholders' 
March 6, 2012 oral presentations are available for review by the public 
at www.mspb.gov/regulatoryreview/index.htm.

Scope of Comments Requested

    The MSPB asks commenters to provide their views on the regulations 
proposed by MSPB. The MSPB also invites additional comments on any 
other aspect of MSPB's adjudicatory regulations that commenters believe 
should be amended.

Summary of Changes

    Set forth below is a summary of the amendments proposed by the 
MSPB.

[[Page 33664]]

Section 1200.4 Petition for Rulemaking

    This proposed amendment authorizing petitions requesting the MSPB 
to amend its regulations is 5 U.S.C. 7121specifically authorized by 5 
U.S.C. 553(e), which states that ``[e]ach agency shall give an 
interested person the right to petition for the issuance, amendment, or 
repeal of a rule.'' At present, the MSPB has no procedures in place for 
responding to these requests. This proposed amendment will ensure that 
parties wishing to petition the Board for regulatory changes are aware 
of their right to make such a request and the MSPB's procedures for 
filing and responding to such requests.

Section 1201.3 Appellate Jurisdiction

    The MSPB proposes to amend the opening paragraph to explain that 
this regulation is not a source of MSPB jurisdiction and that the cited 
laws and regulations need to be consulted to determine the MSPB's 
jurisdiction. The proposed amendment emphasizes that jurisdiction 
depends on the nature of the employment or position held as well as the 
nature of the action taken. The proposed regulation also revises the 
listing of appealable actions within the MSPB's appellate jurisdiction 
to achieve several ends: (1) To make the regulations easier to 
understand (plain English where possible); (2) to give each category of 
appealable action a descriptive label; (3) to list appealable actions 
in order from most common to least common; and (4) to group like 
actions together, which resulted in a list of 11 appealable actions 
instead of the previous 20.

Section 1201.4 General Definitions

    The MSPB proposes revising subsection (a) to eliminate the phrase 
``attorney-examiner,'' which was believed to be an archaic term, and 
substitute the language of 5 U.S.C. 7701(b)(1).
    The MSPB is proposing to revise subsection (j) out of a concern 
that the definition of ``date of service'' is both circular (``the date 
on which documents are served'') and unclear, since ``service'' is 
defined as the ``process of furnishing a copy of any pleading'' to the 
MSPB and other parties. It is thus not clear if the date of service 
refers to when a pleading is sent out, e.g., the postmark date, or when 
the pleading is received. Parties have interpreted ``date of service'' 
both ways. The revised regulation resolves this ambiguity by providing 
that ``date of service'' refers to when a document is sent out, not 
when it is received.
    The MSPB further determined that it was inequitable to allow the 
amount of time that a party has to file a pleading depend on the method 
of service used by the opposing party. To redress such inequity the 
proposed regulation also states that ``whenever a regulation in this 
part bases a party's deadline for filing a pleading on the date of 
service of some previous document, and the previous document was served 
on the party by mail, the filing deadline will be extended by 5 
calendar days.'' This incorporates the presumption of 5 CFR 1201.4(k) 
that mailed documents are received 5 days after the postmark date.

Section 1201.14 Electronic Filing Procedures

    The MSPB proposes adding new subsections (4) and (5) to section (c) 
to reflect current policy and procedure regarding Sensitive Security 
Information (SSI) and classified information. The MSPB has determined 
that it is inappropriate to use the e-Appeal Online system for SSI or 
classified information. The proposed revision to section (m) makes the 
regulation consistent with the intent expressed by the Board when it 
originally published this provision at 73 FR 10127, 10128 (2008). 
Finally, an additional subsection is being proposed to 5 CFR 1201.14 to 
provide that amici are not permitted to e-file. The MSPB considered the 
option of reconfiguring e-Appeal Online to address Privacy Act concerns 
and allow amici to file using e-Appeal Online but determined that the 
cost of such a change was not justified considering how rarely the 
Board receives amicus briefs.

Section 1201.21 Notice of Appeal Rights

    As discussed more fully below, in connection with jurisdiction over 
Individual Right of Action (IRA) appeals under Part 1209, the Board is 
proposing to change longstanding jurisprudence concerning allegations 
of reprisal for whistleblowing under 5 U.S.C. 2302(b)(8) where an 
employee has been subjected to an otherwise appealable action. Under 
the provisions of 5 U.S.C. 7121(g)(3), such an employee ``may elect not 
more than one'' of 3 remedies: (A) An appeal to the Board under 5 
U.S.C. 7701; (B) a negotiated grievance under 5 U.S.C. 7121(d); or (C) 
corrective action under subchapters II and III of 5 U.S.C. chapter 12, 
i.e., a complaint filed with OSC (5 U.S.C. 1214), which can be followed 
by an IRA appeal filed with the Board (5 U.S.C. 1221). Under subsection 
(g)(4), an election is deemed to have been made based on which of the 3 
actions the individual files first.
    A plain reading of Sec.  7121(g) would appear to indicate that, 
contrary to longstanding Board precedent, an individual who has been 
subjected to an otherwise appealable action, but who seeks corrective 
action from the Office of Special Counsel (OSC) before filing an appeal 
with the Board, has elected an IRA appeal, and is limited to the rights 
associated with such an appeal, i.e., the only issue before the Board 
is whether the agency took one or more covered personnel actions 
against the appellant in retaliation for making protected 
whistleblowing disclosures; the agency need not prove the elements of 
its case, and the appellant may not raise other affirmative defenses. 
As discussed in 5 CFR 1209.2 below, the proposed regulation would 
overrule the Board's longstanding precedent in this area.
    The proposed regulation would require agencies to fully notify 
employees of their rights in these situations so that they can make an 
informed choice among the available 3 options. Paragraph (e) was added 
to require notice in mixed cases.

Section 1201.22 Filing an Appeal and Responses to Appeals

    The MSPB proposes to revise this regulation to include a new 
section stating the MSPB's general rule about constructive receipt. 
This provision also includes several illustrative examples.

Section 1201.23 Computation of Time

    The MSPB proposes to amend the first sentence of this regulation so 
that it will apply to all situations in which a deadline for action is 
set forth in the MSPB's regulations or by a judge's order, including 
discovery requests and responses between the parties.

Section 1201.24 Content of an Appeal; Right to Hearing

    The proposed revision radically reduces the scope of requested 
attachments from ``any relevant documents'' to a request for the 
proposal notice as well as the decision notice, and for the SF-50 if 
available. It also cautions appellants not to delay filing and miss a 
deadline if they lack any of these documents.
    In the MSPB's experience these documents, in conjunction with the 
items of information mandated in 5 CFR 1201.24(a)(1)-(9), are all that 
is necessary in order to docket a new appeal and issue appropriate 
acknowledgment and jurisdictional orders. Under the current regulation, 
appellants frequently file numerous attachments, many of which will be 
included as part of the agency file, and

[[Page 33665]]

other documents that are not relevant to the disposition of the appeal.
    The proposed regulation does not mandate the attachment of 
documents that would demonstrate that the appellant has satisfied the 
jurisdictional requirement of exhausting an administrative procedure in 
IRA and Veterans Employment Opportunity Act (VEOA) appeals. Obtaining 
such documents is best left to acknowledgment and jurisdictional orders 
issued after an appeal is filed. The current MSPB Appeal Form requests 
the attachment of numerous documents. If the proposed revision is 
adopted, the MSPB will revise the Appeal Form so that it is consistent 
with the regulation.
    The definition of ``right to hearing'' in paragraph (d) is amended 
to explain that ``in an appeal under 5 U.S.C. 7701, an appellant 
generally has a right to a hearing on the merits if the appeal has been 
timely filed and the Board has jurisdiction over the appeal.''

Section 1201.28 Case Suspension Procedures

    The MSPB proposes to overhaul its case suspension procedures. 
Unlike the current regulation, the draft regulation does not include 
separate subsections for unilateral requests and joint requests. The 
amended regulation allows for more than a single 30-day suspension 
period and eliminates the current restrictions on when a request must 
be filed.

Section 1201.29 Dismissal With Prejudice

    This proposed regulation codifies existing case law concerning 
dismissals without prejudice. See, e.g., Wheeler v. Department of 
Defense, 113 M.S.P.R. 519, ] 7 (2010); Milner v. Department of Justice, 
87 M.S.P.R. 660, ] 13 (2001). The regulation also recognizes the 
necessity to give administrative judges discretion to grant dismissals 
without prejudice and does not include a requirement that cases that 
have been dismissed without prejudice should automatically be 
reinstated because many cases are not reinstated at all following a 
dismissal without prejudice. The regulation sets forth a rule requiring 
the judge to fix a date certain by which the appeal must be refiled. In 
a case where the setting of such a date is impractical, the rule 
includes a reference to a judge's authority under 5 CFR 1201.12 to 
waive the regulation when appropriate.

Section 1201.31 Representatives

    The ``or after 15 days'' clause is proposed to be added at the end 
of the third sentence in 5 CFR 1201.31(b) to acknowledge that a 
representative's conflict of interest may not be readily apparent. The 
MSPB also proposes to move the provisions in 5 CFR 1201.31(d) governing 
exclusion and other sanctions for contumacious behavior by parties and 
representatives to 5 CFR 1201.43 (Sanctions). See that section for 
proposed revisions.

Section 1201.33 Federal Witnesses

    The proposed language has been added to clarify that an agency's 
responsibility under this regulation includes producing witnesses at 
depositions as well as at hearings.

Section 1201.34 Intervenors and Amicus Curiae

    The present regulation defines an amicus curiae as a person/
organization that files a brief with ``the judge,'' and that persons/
organizations may, in the discretion of ``the judge,'' be granted 
permission to file a brief. In practice, the Board has recently been 
receiving motions to file amicus briefs for the first time on petition 
for review, and the Board has been granting at least some of those 
requests. The proposed regulation addresses this discrepancy and also 
provides further explanation as to what an amicus is permitted to do.
    In addition, there are presently no criteria in the regulation 
indicating when requests to file amicus briefs will be granted or 
denied. The proposed regulation sets forth general guidelines while 
maintaining the current language that provides that such requests may 
be granted in the judge's (or Board's) discretion. These general 
guidelines (legitimate interest, no undue delay, material contribution 
to proper disposition) are similar to those found in the regulations of 
some other federal adjudicatory agencies.

Section 1201.36 Consolidating and Joining Appeals

    In the second sentence of subsection (a)(2), the MSPB proposes to 
substitute ``removal'' for ``dismissal.'' Dismissal is not a term used 
by the Board to describe an employee's separation from employment for 
disciplinary reasons.

Section 1201.41 Judges

    The proposed amendment reflects the language used in the MSPB 
Strategic Plan.

Section 1201.42 Disqualifying a Judge

    The proposed amendment reflects the fact that under current MSPB 
practice a judge who considers himself or herself disqualified notifies 
the Regional Director, not the Board.

Section 1201.43 Sanctions

    Excluding parties and representatives for contumacious behavior is 
currently covered by 5 CFR 1201.31 (Representatives). The MSPB believes 
that this subject is better covered under 5 CFR 1201.43 (Sanctions), as 
exclusion or other action for contumacious behavior is a sanction. The 
revised regulation would give explicit authority for suspending or 
terminating a hearing that has begun. The proposed rule also deletes 
the requirement of a show-cause order in favor a general requirement 
that, before imposing a sanction, the judge must provide a prior 
warning and document the reasons for any sanction. A formal show-cause 
order is simply not feasible where the misconduct occurs during a 
hearing. Similarly, the proposed rule also proposes to eliminate the 
provision for an interlocutory appeal of a sanction for contumacious 
behavior. The MSPB believes that review of sanctions of this nature via 
petition for review is sufficient and delaying the entire proceeding to 
adjudicate the appropriateness of a sanction is not warranted. The 
proposed rule also amends this regulation to permit a judge to limit 
participation by a representative without excluding the representative 
from the case entirely. Finally, the proposed rule deletes the term 
``appellant's representative'' and instead substitutes the term 
``party's representative.''

Section 1201.51 Scheduling the Hearing

    The current extensive list of fixed hearing sites contained in 
Appendix III of Part 1201 causes administrative inefficiencies and can 
have adverse budgetary considerations for the MSPB, as the cost of 
airfares are renegotiated by GSA each fiscal year and cost of court 
reporters can vary considerably from one city to the next. This 
proposal gives the MSPB greater flexibility to change approved hearing 
sites listed on the Board's public Web site instead of changing 
Appendix III through a Federal Register notice.

Section 1201.52 Public Hearings

    This proposed amendment would give administrative judges express 
authority to control the use of electronic devices at a hearing.

Section 1201.53 Record of Proceedings

    The MSPB proposes to make several changes to the regulation. In 
light of changing technology, the term ``tape recording'' has been 
replaced by the word ``recording'' and because of the existence of e-
transcripts and other electronic formats, the term ``written

[[Page 33666]]

transcript'' has been replaced by ``transcript.''
    More significantly, the MSPB proposes to allow a judge or the Board 
to order the agency to pay for a transcript in certain circumstances: 
``In the absence of a request by a party, and upon determining that a 
transcript would significantly assist in the preparation of a clear, 
complete, and timely decision, the judge or the Board may direct the 
agency to purchase a full or partial transcript from the court 
reporter, and to provide copies of such a transcript to the appellant 
and the Board.'' The regulation proposed by the MSPB is more narrowly-
tailored than the comparable EEOC regulation that requires federal 
agencies to ``arrange and pay for verbatim transcripts.'' 29 CFR 
1614.109(h).
    Under 5 U.S.C. 7701(a) an appellant is entitled to a hearing for 
which a transcript will be kept. The MSPB has long satisfied this 
requirement by recording the hearing. Gonzalez v. Defense Logistics 
Agency, 772 F.2d 887, 890 (Fed. Cir. 1985). The MSPB is not, however, 
required to produce a verbatim written transcript of the hearing. 
Gearan v. Department of Health and Human Services, 838 F.2d 1190, 1192-
93 (Fed. Cir. 1988). Thus, while the MSPB has in the past used 
appropriated funds to prepare a written hearing transcript when an 
agency fails to elect to transcribe a recorded hearing, the MSPB is not 
required to prepare a written transcript. As a result, the MSPB 
believes that a regulation requiring a Federal agency to prepare a 
written hearing transcript does not constitute an improper augmentation 
of the MSPB's appropriations because the Board is not required to 
prepare such a transcript and Federal agencies receive appropriations 
to pay for the costs of litigating appeals before the Board.

Section 1201.56 Burden and Degree of Proof; Affirmative Defenses

    The Board's current regulation at 1201.56 provides without 
qualification that jurisdiction must be proved by preponderant 
evidence. This regulation is in conflict with a significant body of 
Board case law holding that some jurisdictional elements may be 
established by making nonfrivolous allegations. The U.S. Court of 
Appeals for the Federal Circuit has ruled that the Board must abide by 
its published regulation in section 1201.56. See Bledsoe v. Merit 
Systems Protection Board, 659 F.3d 1097, 1101-04 (Fed. Cir. 2011); 
Garcia v. Department of Homeland Security, 437 F.3d 1322, 1338-43 (Fed. 
Cir. 2006) (en banc). In Garcia, the court observed that, because 5 
U.S.C. 7701 is silent with respect to the burden of proof for 
establishing jurisdiction, the Board can make rules regarding this 
matter by notice-and-comment rulemaking, and that when it does so, its 
rules are entitled to deference under Chevron v. Natural Resources 
Defense Council, 467 U.S. 837, 842 (1984). Garcia, 437 F.3d at 1338-39. 
The court observed that, if the Board is dissatisfied with its current 
rule at section 1201.56, and desires to change what is required to 
establish jurisdiction, it may do so by notice-and-comment rulemaking. 
Id. at 1343. The Board is now doing so.
    In reviewing our jurisprudence is this area, there appear to be 
only four types of jurisdictional elements in the cases the Board is 
authorized to hear: (1) Whether the appellant is a person entitled to 
bring the sort of appeal authorized by the law, rule, or regulation 
that gives the Board jurisdiction; (2) whether the agency action or 
decision being challenged is of a type covered by the law, rule, or 
regulation that gives the Board jurisdiction; (3) whether the appellant 
has exhausted a required administrative procedure; and (4) elements 
that relate to the nature or merits of the appeal or claim over which 
the Board has been given jurisdiction.
    When there is no overlap between jurisdictional issues and merits 
issues, i.e., when the only jurisdictional issues are of types (1) 
through (3), we conclude that all jurisdictional elements must be 
established by preponderant evidence. Adverse action appeals under 5 
U.S.C. 7511-7514 provide a good example why this conclusion is 
warranted. Section 7511 sets out applicable definitions, including who 
is an ``employee''; section 7512 specifies the personnel actions that 
are covered; and section 7513 sets forth the two merits issues--whether 
the action was taken ``for such cause as will promote the efficiency of 
the service,'' and whether the agency complied with prescribed 
procedures. The jurisdictional grant to the Board is stated in section 
7513(d): ``An employee against whom an action is taken under this 
section is entitled to appeal to the Merit Systems Protection Board 
under section 7701 of this title.'' The grant of jurisdiction thus 
focuses on and is limited to the first two elements identified above: 
(1) Whether the appellant is a covered ``employee'' as defined in 
section 7511; and (2) whether the appellant was subjected to one of the 
personnel actions listed in section 7512. Implicit in this statutory 
structure is an ``if-then'' condition precedent. If, but only if, the 
appellant actually is a covered ``employee'' who has been subjected to 
a covered personnel action, then the appellant is entitled to a Board 
determination of whether the agency took the action for such cause as 
will promote the efficiency of the service and whether the agency 
followed prescribed procedures. Determining whether the appellant 
actually is a covered employee who has been subjected to one of the 
listed personnel actions requires proof by a preponderance of the 
evidence.
    When Congress (or the Office of Personnel Management where an OPM 
regulation is the source of Board jurisdiction) has not clearly 
differentiated jurisdictional issues from merits issues, i.e., where 
some matters are both jurisdictional and merits, there is no 
justification for inferring that a ``dual purpose'' issue is a 
condition precedent that must be proved by preponderant evidence before 
the merits of the case are reached. Such a requirement led to the 
counter-intuitive finding in Latham v. U.S. Postal Service, 117 
M.S.P.R. 400, ] 10 n.9 (2012), that, because the issue of whether a 
denial of restoration was arbitrary and capricious had been held to be 
a jurisdictional issue as well as a merits issue, an appellant who 
establishes jurisdiction over a partial recovery restoration claim 
automatically prevails on the merits of that claim.
    Individual right of action (IRA) appeals under 5 U.S.C. 1221 
provide another example where the grant of Board jurisdiction does not 
clearly differentiate between jurisdictional issues and merits issues. 
Paragraph (a) of this section provides that:
    Subject to the provisions of subsection (b) of this section and 
subsection 1214(a)(3), an employee, former employee, or applicant for 
employment may, with respect to any personnel action taken, or proposed 
to be taken, against such employee, former employee, or applicant for 
employment, as a result of a prohibited personnel practice described in 
section 2302(b)(8), seek corrective action from the Merit Systems 
Protection Board.
    Although the first three types of jurisdictional elements are 
referenced in the grant of jurisdiction--the appellant must be a 
covered ``employee, former employee, or applicant for employment,'' 
must have been subjected to a covered ``personnel action'' that was 
``taken, or proposed to be taken,'' and must have exhausted his or her 
administrative remedy with the Special Counsel--so is the merits issue 
of whether the covered personnel action was taken or proposed to be 
taken as a result of the prohibited personnel practice described in 5 
U.S.C.

[[Page 33667]]

2302(b)(8), i.e., whether the personnel action was retaliation for 
protected whistleblowing. Both the Board and its reviewing court have 
regarded this latter matter as both jurisdictional and merits in 
nature. See Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 
1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 
298, ] 12 (2002). For jurisdictional purposes, a nonfrivolous 
allegation will suffice. On the merits, the appellant must establish by 
preponderant evidence that he or she made a protected whistleblowing 
disclosure, and that the disclosure was a contributing factor in the 
personnel action that was taken or proposed. E.g. Schnell v. Department 
of the Army, 114 M.S.P.R. 83, ] 18 (2010); Fisher v. Environmental 
Protection Agency, 108 M.S.P.R. 296, ] 15 (2008).

Section 1201.58 Closing the Record

    This proposed amendment is based upon case law indicating that, 
notwithstanding an order setting the date on which the record will 
close, a party must be allowed to submit evidence to rebut new evidence 
submitted by the other party just prior to the close of the record. See 
Miller v. U.S. Postal Service, 110 M.S.P.R. 550, ] 9 (2009); Mooney v. 
Department of Defense, 44 M.S.P.R. 524, 528 (1990); Naekel v. 
Department of Transportation, 32 M.S.P.R. 488, 496 (1987).

Section 1201.62 Producing Prior Statements

    The MSPB proposes to delete this regulation in its entirety as it 
has virtually never been invoked or applied and is believed to be 
unnecessary.

Section 1201.71 Purpose of Discovery

    This proposed amendment adds a sentence to the end of this section 
stating that discovery requests and discovery responses should not 
ordinarily be filed with the Board. Statements to this effect are 
currently contained in standard orders.

Section 1201.73 Discovery Procedures

    The proposed changes to the regulation address several important 
matters. The initial disclosure requirement of subsection (a) has been 
eliminated in its entirety. The Board's initial disclosure provision is 
based on Fed. R. Civ. P. 26(a)(1). Although such a requirement makes a 
great deal of sense in article III courts, it makes little sense in the 
adjudication of MSPB appeals. First and foremost, there is nothing 
comparable in federal court litigation to the Agency File in an MSPB 
proceeding. The agency file, required by 5 CFR 1201.25, contains 
``[a]ll documents contained in the agency record of the action'' being 
appealed. In the MSPB's experience, the initial disclosure requirement 
results in unnecessary and unfruitful motion practice, and distracts 
both parties from more important matters, such as the preparation of 
the agency file and responses to orders on timeliness and jurisdiction.
    The current regulation includes separate subsections governing 
discovery from a party and discovery from a nonparty. The proposed 
amendments eliminate that distinction as unnecessary. There was an 
intermediate process for unsuccessful attempts at discovery from a 
nonparty, in which the party seeking discovery would seek an order from 
the judge directing that the discovery take place. If that was 
insufficient, a subpoena could be sought and issued.
    Under the proposed regulation, the requirements are essentially the 
same for parties and nonparties. The discovery request is served on the 
party or nonparty and/or their representative. If a discovery response 
is not forthcoming or is inadequate, attempts must be made to resolve 
the matter informally. If those attempts are unsuccessful, then a 
motion is filed with the judge. If the non-responsive entity is a 
party, a motion to compel discovery is filed. If the non-responsive 
entity is a non-party, a motion for issuance of a subpoena under 5 CFR 
1201.81 is filed.
    This proposed amendment also increases the time period in which 
initial discovery requests must be served from 25 days to 30 days after 
the date on which the judge issues the acknowledgment order. That order 
requires the production of the agency file within 20 days. The increase 
of time to 30 days should ensure that, in most cases, appellants have 
the opportunity to initiate discovery after they have seen what is in 
the Agency File. As is already the case, parties can seek permission to 
initiate discovery after the deadline has passed, and such permission 
should be granted where appropriate.
    The proposed amendments also revise subparagraph (d)(4) to clarify 
that, if no other deadline has been specified, discovery must be 
completed no later than the prehearing or close of record conference. A 
proposed change in subparagraph (c)(i) reflects the MSPB's view that a 
motion to compel must contain a statement showing that the request was 
not only for relevant and material information, but that the scope of 
the request was reasonable. The proposed amendment also makes several 
other minor changes in the regulation.

Section 1201.93 Procedures

    The proposed amendment of this regulation replaces the word 
``hearing'' with the word ``appeal'' because there may or may not be a 
pending hearing in a case where an interlocutory appeal has been 
certified to the Board. The term ``stay the processing of the appeal'' 
is also proposed to be inserted in lieu of the term ``stay the appeal'' 
to avoid any ambiguity.

Section 1201.101 Explanation and Definitions

    This proposed change will clarify that Mediation Appeals Program 
(MAP) mediators and settlement judges may discuss the merits of an MSPB 
case with a party without running afoul of the prohibition on ex parte 
communication. Some parties, confused on this issue, believe that while 
a mediator or settlement judge may discuss settlement terms ex parte, 
they cannot discuss the merits of a case, even within the context of 
settlement discussions.

Section 1201.111 Initial Decision by the Judge

    This proposed amendment would delete language about serving OPM and 
the Clerk of the Board to conform with longstanding Board practice. OPM 
has access to all of the Board's initial and final decisions via the 
MSPB Extranet, and is not separately served with each initial decision 
as it is issued. The Clerk of the Board has immediate access to all 
issued initial decisions.

Section 1201.112 Jurisdiction of the Judge

    This proposed amendment would allow an administrative judge to 
vacate an initial decision to accept a settlement agreement into the 
record when the settlement agreement is filed by the parties prior to 
the deadline for filing a petition for review, but is not received 
until after the date when the initial decision would become the Board's 
final decision by operation of law.

Section 1201.113 Finality of Decision

    The proposed amendment to paragraph (a) is intended to conform this 
regulation to the proposed revision to 5 CFR 1201.112(a)(4) described 
above. Paragraph (f) is added to indicate that the Board will make a 
referral to OSC to investigate and take any appropriate disciplinary 
action whenever the Board finds that an agency has engaged in reprisal 
against an individual for making a protected whistleblowing disclosure. 
Previously,

[[Page 33668]]

the MSPB's regulations (5 CFR 1209.13) only required a referral when 
retaliation was found in an IRA appeal. Such referrals will also be 
made when retaliation for whistleblowing is found in an otherwise 
appealable action.

Section 1201.114 Petition and Cross Petition for Review--Content and 
Procedure

    The MSPB proposes to institute page limitations for pleadings on 
petition for review, allow for replies to responses to petitions for 
review, and define petitions for review and cross petitions for review. 
Courts and many other federal agencies currently have page limitations 
on pleadings. Subsection (e) incorporates by reference the rules 
governing constructive receipt as proposed for 5 CFR 1201.22(b)(3). 
Finally, paragraph (b) now specifies that a petition or cross petition 
for review must include ``all of the party's legal and factual 
arguments.'' This was added to ensure that parties do not assume that 
the MSPB works like many courts, where all that is required is to file 
a notice of appeal with the appellate court, and the Clerk of that 
court then promulgates a briefing schedule.

Section 1201.115 Criteria for Granting Petition or Cross Petition for 
Review

    The proposed amendments set forth here address the criteria for 
granting petitions and cross petitions for review. The Board will grant 
a petition for review whenever the petitioner demonstrates that the 
initial decision was wrongly decided, or that the adjudication process 
was so unfair that the petitioner did not have an appropriate 
opportunity to develop the record. The proposed regulation lists the 4 
most common situations in which a petition or cross petition for review 
will be granted, but specifies that this listing is not exhaustive.

Section 1201.116 Compliance With Orders for Interim Relief

    The proposed modifications to this regulation will combine the 
existing contents of 5 CFR 1201.116 with the provisions of 5 CFR 
1201.115(b) and (c).

Section 1201.117 Procedures for Review or Reopening

    The proposed revision to subparagraph (a)(1) reflects the 
significant revision to 5 CFR 1201.118, which would restrict 
``reopening'' to situations in which the Board members have previously 
issued a final order or the initial decision has become the Board's 
final order by operation of law.

Section 1201.118 Board Reopening of Final Decisions

    The proposed amendment is intended to change the current Board 
practice of ``reopen[ing] the appeal on the Board's own motion under 5 
CFR 1201.118'' when a party's petition for review is denied, but the 
Board deems it appropriate to issue an Opinion and Order. The MSPB 
believes the better practice would be to amend its regulations to state 
that ``reopening'' only applies to, and should be reserved for, 
instances in which the Board has already issued a final order or the 
initial decision has become the Board's final decision by operation of 
law.
    The MSPB's current practice may involve a misinterpretation of 5 
U.S.C. 7701(e), which provides that an initial decision ``shall be 
final unless--(A) a party to the appeal or the Director [of OPM] 
petitions the Board for review within 30 days after the receipt of the 
decision; or (B) the Board reopens and reconsiders a case on its own 
motion.'' As now read by the MSPB, if either party files a timely 
petition for review, the appeal remains ``open'' and there is no final 
decision until the Board issues an Opinion and Order or Final Order.
    In addition to clarifying the situations in which an appeal may be 
reopened, the proposed amendment corrects an apparent anomaly in the 
current regulations in that, as presently written, 5 CFR 1201.118 
applies only to the reopening of initial decisions. Neither 5 CFR 
1201.118 nor any other existing regulation discusses the Board's 
authority under 5 U.S.C. 7701(e) to reopen a final decision issued by 
the Board itself. The proposed revision addresses reopening of all 
final Board decisions, whether issued by the Board or when an initial 
decision has become the Board's final decision. It also incorporates 
well-established case law as to the rare and limited circumstances in 
which the Board will reopen a final decision.

Section 1201.119 OPM Petition for Reconsideration

    The MSPB proposes to make minor wording changes in this regulation 
in light of the language used in 5 CFR 1201.117 and 1201.118, and to 
eliminate any confusion between ``Final Order'' as the document title 
of a particular type of final Board decision and the generic term 
``final decision,'' which applies to any type of final decision, 
whether it be an Opinion and Order or a ``Final Order.''

Section 1201.122 Filing Complaint; Serving Documents on Parties

    This proposed amendment is designed to correct an oversight in the 
MSPB's regulations. When e-Appeal Online was first established, it 
could not accommodate the initial filing in an original jurisdiction 
action. That was remedied a few years ago, and the e-filing regulation 
itself, 5 CFR 1201.14, was amended so that it no longer excludes from 
e-filing the initial filing in original jurisdiction actions. 73 FR 
10127, 10129 (2008). Unfortunately, the regulations governing the 
filing of particular original jurisdiction actions were not amended, 
and they still prohibit using e-Appeal Online to file the initial 
pleading in these cases. Paragraph (a) is amended to require OSC to 
file a single copy of the complaint.
    Regarding the deletion of paragraphs (d) and (e), we note that 
other special types of proceedings--including petitions for enforcement 
under 5 CFR 1201.182 and motions for attorney fees under 5 CFR 
1201.203--do not address the acceptable methods of service. That is 
unnecessary, as the matter is covered generally under 5 CFR 1201.4(i) 
and 5 CFR 1201.14, and 5 CFR 1201.121(a) specifies that, except where 
otherwise expressly provided, the provisions of subpart B (which 
includes 5 CFR 1201.14) apply to original jurisdiction cases.

Section 1201.128 Filing Complaint; Serving Documents on Parties

    See explanation under 5 CFR 1201.122.

Section 1201.134 Deciding Official; Filing Stay Request; Serving 
Documents on Parties

    See explanation under 5 CFR 1201.122.

Section 1201.137 Covered Actions; Filing Complaint; Serving Documents 
on Parties

    See explanation under 5 CFR 1201.122.

Section 1201.142 Actions Filed by Administrative Law Judges

    This proposed amendment corrects a typographical error. The 
reference to 5 CFR 1201.37 in the second sentence should be changed to 
5 CFR 1201.137.

Section 1201.143 Right to Hearing; Filing Complaint; Serving Documents 
on Parties

    See explanation under 5 CFR 1201.122.

[[Page 33669]]

Section 1201.153 Contents of Appeal

    The MSPB proposes to amend (a)(2) to clarify that not all 
discrimination matters may be raised with the Board. The MSPB is also 
proposing to substitute the term ``under a negotiated grievance 
procedure'' for the word ``grievance'' to reflect that these are the 
only types of grievances covered under the mixed cases regulations.

Section 1201.154 Time for Filing Appeal; Closing Record in Cases 
Involving Grievance Decisions

    The MSPB proposes to incorporate by reference the rules governing 
constructive receipt as proposed for 5 CFR 1201.22(b)(3). See 
explanation above.

Section 1201.155 Requests for Review of Arbitrators' Decisions

    The MSPB proposes to remove the existing regulation as unnecessary 
and put in its place a new regulation addressing requests for review of 
arbitrators' decisions. Although requests for review of arbitrators' 
decisions under 5 U.S.C. 7121(d) by definition must include claims of 
unlawful discrimination under 5 U.S.C. 2302(b)(1), they are quite 
different from other mixed cases covered by Subpart E of Part 1201, in 
that they have not been adjudicated in the Board's regional offices by 
administrative judges pursuant the provisions of Part 1201. Because of 
this, arbitrators' decisions are subject to a much more lenient 
standard of review than are decisions by administrative judges. See, 
e.g., Fanelli v. Department of Agriculture, 109 M.S.P.R. 115, ] 6 
(2008).Because of these differences, the MSPB concluded that such 
requests merited a single regulation devoted to that subject. 
Therefore, this revised regulation removed the existing regulation at 5 
CFR 1201.154(d) and moved into 5 CFR 1201.155.
    The Board proposes to amend paragraphs (a) and (b) of the 
transferred regulation. It has long been established in case law that 
the Board has jurisdiction to review arbitration decisions in which an 
appellant is raising claims of unlawful discrimination, even when the 
appellant failed to raise the discrimination issue before the 
arbitrator. This was not always the case. The Board had held that its 
review was limited to discrimination claims that were raised before the 
arbitrator until the Federal Circuit's contrary ruling in Jones v. 
Department of the Navy, 898 F.2d 133, 135-36 (Fed. Cir. 1990). That 
decision was based on the court's analysis and interpretation of the 
requirements of both statute (5 U.S.C. 7121(d) and 7702(a)(1)) and 
regulation (5 CFR 1201.151, .155, and .156), and the court specifically 
noted that no statute or regulation had been called to its attention 
that required an issue of prohibited discrimination to be raised before 
an arbitrator before the Board would have jurisdiction to consider it 
on appeal. 898 F.2d at 135. The proposed rule would restore the rule 
that existed prior to the Federal Circuit's decision in Jones. As 
required by sections 7121(d) and 7702(a)(1), the employee would still 
receive Board review of both the Title 5 claim and the discrimination 
claim(s), so long as the discrimination claim was raised before the 
arbitrator.
    In addition to moving and amending the existing regulatory 
language, the MSPB proposes to add a new paragraph (d), which provides 
that the Board may, in its discretion, ``develop the record as to a 
claim of prohibited discrimination by ordering the parties to submit 
additional evidence or forwarding the request for review to an 
administrative judge to conduct a hearing.'' This is because even when 
the discrimination claim was raised before the arbitrator, the factual 
record may be insufficiently developed to allow the Board to resolve 
the discrimination claim(s). Thus, the revised regulation would give 
the Board the option of ordering the parties to supplement the record 
or forwarding the matter to an administrative judge to gather 
additional evidence and/or conduct a hearing and make factual findings.

Section 1201.181 Authority and Explanation

    The proposed amendments to this regulation are not substantive, but 
merely reorder the information and add descriptive labels to each 
paragraph.

Section 1201.182 Petition for Enforcement

    The proposed amendments to this regulation clarify that the Board's 
enforcement authority under 5 U.S.C. 1204(a)(2) extends to situations 
in which a party asks the Board to enforce the terms of a settlement 
agreement entered into the record for purposes of enforcement as well 
as to situations in which a party asks the Board to enforce the terms 
of a final decision or order.

Section 1201.183 Procedures for Processing Petitions for Enforcement

    The proposed amendments to this regulation would change the nature 
of an administrative judge's decision in a compliance proceeding from a 
``recommendation'' to a regular initial decision, which would become 
the Board's final decision if a petition for review is not filed or is 
denied. The goal is to ensure, to the extent feasible, that all 
relevant evidence is produced during the regional office proceeding, 
and that the initial decision actually resolves all contested issues: 
``[T]he judge will issue an initial decision resolving all issues 
raised in the petition for enforcement, and identifying the specific 
actions the noncomplying party must take * * *'' In addition, the 
amended regulation provides that the ``responsible agency official'' 
whose pay may be suspended should a finding of noncompliance become the 
Board's final decision will be served with a copy of any initial 
decision finding the agency in noncompliance.
    To the extent that an agency found to be in noncompliance decides 
to take the compliance actions identified in the initial decision, the 
proposed regulation increases the period for providing evidence of 
compliance from 15 days to 30 days. This was done for several of 
reasons. First, where the initial decision is the first time that the 
agency learns definitively what actions it must take, 15 days would 
rarely be sufficient to have taken all required actions, e.g., the 
issuance of SF-52s and/or SF-50s and action taken by a payroll office. 
Second, the MSPB determined that there should not be different 
deadlines for submitting evidence of compliance as compared to 
contesting compliance actions with which the agency disagrees by filing 
a petition for review.
    As noted above, the proposed revision to 5 CFR 1201.182 explains 
that the MSPB considers petitions for enforcement in two different 
situations: (1) When the MSPB has ordered relief or corrective action 
and (2) when the parties have entered a settlement agreement into the 
record for enforcement. Proposed new paragraph (c) in 5 CFR 1201.183 
codifies existing case law regarding the different burdens of proof 
that apply in these enforcement actions depending on whether the Board 
is adjudicating a petition to enforce relief ordered by the Board 
(typically status quo ante relief when the Board has not sustained an 
agency action), or a petition to enforce a settlement agreement that a 
party is alleging that the other party breached. See, e.g., Kerr v. 
National Endowment for the Arts, 726 F.2d 730, 732-33 (Fed. Cir. 1984) 
(emphasizing the Board's obligation, in ensuring status quo ante relief 
in a compliance action, to ``make a substantive assessment of whether 
the actual duties and responsibilities to which the employee was 
returned are

[[Page 33670]]

either the same as or substantially equivalent in scope and status to 
the duties and responsibilities held prior to the wrongful 
discharge''); House v. Department of the Army, 98 M.S.P.R. 530, ] 14 
(2005) (when the Board orders an agency action cancelled, the agency 
must return the appellant, as nearly as possible, to the status quo 
ante, which requires, in most instances, restoring the appellant to the 
position he occupied prior to the adverse action or placing him in a 
position that is substantially equivalent); Fredendall v. Veterans 
Administration, 38 M.S.P.R. 366, 370-71 (1988) (adopting judicial 
precedent that an action to enforce a settlement agreement is analogous 
to an action for breach of contract, and the burden of proof in an 
action for breach of contract rests on the plaintiff). Both the Board 
and the Federal Circuit have emphasized that, even though an appellant 
who alleges that the agency breached a settlement agreement bears the 
burden of proof, the agency bears the burden to produce relevant 
evidence regarding its compliance. See Perry v. Department of the Army, 
992 F.2d 1575, 1588 (Fed. Cir. 1993); Fredendall, 38 M.S.P.R. at 371.

Heading of Subpart H

    The Board proposes to revise the heading for Subpart H of Part 1201 
to reflect that the subpart, as the MSPB proposes to amend herein, 
addresses attorney fees and related costs, consequential damages, 
compensatory damages, and liquidated damages.

Section 1201.201 Statement of Purpose

    The MSPB proposes to amend this regulation by adding a provision 
relating to awards of liquidated damages under VEOA.

Section 1202.202 Authority for Awards

    The MSPB proposes to amend this regulation by adding a provision 
relating to awards of liquidated damages under VEOA.

Section 1201.204 Proceedings for Consequential, Liquidated, and 
Compensatory Damages

    The MSPB proposes to change ``3-member Board'' to ``the Board'' in 
order to cover situations in which there are only two Board members. In 
addition, because requests for ``liquidated damages'' in VEOA appeals 
are also handled in addendum proceedings, the MSPB proposes to modify 
this regulation to include requests for such damages.

Appendix III to Part 1201

    The MSPB proposes to remove and reserve Appendix III. See earlier 
discussion regarding proposal to amend 5 CFR 1201.51(d).

Section 1203.2 Definitions

    The MSPB proposes to revise this regulation to acknowledge that 
there are now 12 prohibited personnel practices.

Section 1208.3 Application of 5 CFR Part 1201

    The MSPB proposes to amend this section to reflect the references 
to liquidated damages in section 5 CFR 1201.204.

Section 1208.21 VEOA Exhaustion Requirement

    The purpose of the proposed revision to paragraph (a) is to clarify 
and codify an appellant's burden of proving exhaustion in a VEOA 
appeal. 5 CFR 1208.21 currently explains that to exhaust his 
administrative remedies with the Department of Labor (DOL), an 
appellant must file a complaint with DOL and allow DOL 60 days to 
resolve the complaint. However, this provides an incomplete and 
misleading picture of the exhaustion process. It is incomplete because 
it does not include the exhaustion requirement that DOL close the 
complaint, either on its own accord or based on a letter from the 
appellant after 60 days have elapsed stating that the appellant intends 
to file a Board appeal. See 5 U.S.C. 3330a (d)(1); Burroughs v. 
Department of Defense, 114 M.S.P.R. 647, ]] 7-9 (2010) (the 
administrative judge erred in finding that the appellant exhausted his 
administrative remedy with DOL based on the mere fact that the 
appellant filed a complaint and waited 60 days before appealing to the 
Board); Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ]] 
9, 11 (2007); 5 CFR 1208.23(a)(5). It is misleading because it does not 
account for the fact that DOL might close its investigation before 60 
days have elapsed. The proposed revision provides a more accurate and 
complete picture of what is required to establish exhaustion in a VEOA 
appeal.
    The addition of paragraph (b) regarding equitable tolling reflects 
the Federal Circuit's ruling in Kirkendall v. Department of the Army, 
479 F.3d 830, 836-44 (Fed. Cir. 2007) (en banc).

Section 1208.22 Time of Filing

    The MSPB proposes to add paragraph (c) to address the possibility 
of excusing an untimely filed appeal under the doctrine of equitable 
tolling.

Section 1208.23 Content of a VEOA Appeal; Request for Hearing

    Subparagraphs (a)(2)-(5) of the current 5 CFR 1208.23 require that 
a VEOA appeal contain information to establish Board jurisdiction. See 
Jarrard v. Department of Justice, 113 M.S.P.R. 502, ] 9 (2010) 
(jurisdictional elements in a VEOA appeal). In particular, current 
subparagraphs (a)(4)-(5) require that an appellant submit evidence that 
he exhausted his remedy with DOL. See Downs v. Department of Veterans 
Affairs, 110 M.S.P.R. 139, ] 7 (2008) (exhaustion of the administrative 
remedy is a jurisdictional requirement in a VEOA appeal). However, the 
current provisions pertaining to the exhaustion requirement are 
incomplete. Both the Board and the Federal Circuit have found that the 
Board has VEOA jurisdiction only over the particular claims for which 
an appellant has exhausted his administrative remedy. See Gingery v. 
Department of the Treasury, 2010 WL 3937577 at *5 (Fed. Cir. 2010); 
Burroughs v. Department of the Army, 2011 MSPB 30, ]] 9-10; White v. 
U.S. Postal Service, 114 M.S.P.R. 574, ] 9 (2010). The first step of 
the statutory exhaustion process is to ``file a complaint with DOL 
containing `a summary of the allegations that form the basis for the 
complaint.' '' Gingery, 2010 WL 3937577 at *5 (quoting 5 U.S.C. 
3330a(a)(2)(B)); Burroughs, 2011 MSPB 30, ] 9. The purpose of this 
requirement is to afford DOL an opportunity to investigate the claim 
before involving the Board in the matter, which is the same as the 
purpose of the exhaustion requirement in an IRA appeal. See Gingery, 
2010 WL 3937577 at *5 (citing Ward v. Merit Systems Protection Board, 
981 F.2d 521, 526 (Fed. Cir. 1992)); Burroughs, 2011 MSPB 30, ] 9. In 
order for the Board to make a jurisdictional ruling in a VEOA appeal, 
it must have evidence of the particular claims that the appellant 
raised before DOL, but an appellant can meet the literal requirements 
of the Board's current regulations without submitting any such 
evidence.
    Because it is now clear that the Board and the court will 
scrutinize the exhaustion issue in a VEOA appeal in the same way that 
they scrutinize the exhaustion issue in an IRA appeal, the Board's 
regulations on VEOA exhaustion ought to reflect that fact. See Gingery, 
2010 WL 3937577 at *5 (``when an appellant's complaint entirely fails 
to inform the DOL of a particular alleged violation or ground for 
relief, the Board lacks jurisdiction over the claim''); cf. Boechler v. 
Department of the Interior, 109 M.S.P.R. 638, ] 6 (2008) (the Board

[[Page 33671]]

may consider only those charges of whistleblowing that the appellant 
raised before OSC), aff'd, 328 F. App'x 660 (Fed. Cir. 2009). The 
proposed amendment would, therefore, add a new subparagraph between 
current 5 CFR 1208.23(a)(4) and (5), stating that a VEOA appeal must 
contain evidence to identify the specific claims that the appellant 
raised before DOL.
    In drafting the proposed revision, the MSPB considered that an 
appellant might exhaust his administrative remedy on an issue that was 
not mentioned in the original 5 U.S.C. 3330a(1) complaint itself. Cf. 
Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ] 19 
(2010) (``in showing that the exhaustion requirement [in an IRA appeal] 
has been met, the appellant is not limited by the statements in her 
initial complaint, but may also rely on subsequent correspondence with 
OSC''). Therefore, the proposed revision does not require an appellant 
to submit evidence of the issues raised in the ``complaint,'' and it 
does not suggest that the requirements of the section can be satisfied 
by submitting a copy of the complaint. Rather, the proposed amendment 
is broad enough to encompass all matters that an appellant might have 
raised before DOL during the course of the complaint process.

Section 1209.2 Jurisdiction

    The MSPB proposes to change the reference in paragraph (a) from 5 
U.S.C. 1214(a)(3) to 5 U.S.C. 1221(a). The latter provision is the one 
that authorizes appeals to the Board for claims of reprisal for 
protected whistleblowing. Section 1214(a)(3) contains the exhaustion 
requirement applicable to IRA appeals that do not involve an otherwise 
appealable action. The revised regulation also includes several new 
examples to aid in determining the MSPB's jurisdiction over IRA 
appeals.
    Most importantly, this proposed regulation would overrule a 
significant body of Board case law. Starting with its decision in 
Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993), 
the Board has consistently maintained the position that an individual 
who claims that an otherwise appealable action was taken against him in 
retaliation for making whistleblowing disclosures, and who seeks 
corrective action from the Special Counsel before filing an appeal with 
the Board, retains all the rights associated with an otherwise 
appealable action in the Board appeal. In an adverse action, for 
example, the agency must prove its charges, nexus, and the 
reasonableness of the penalty by a preponderance of the evidence, and 
the appellant is free to assert any affirmative defense he might have, 
including harmful procedural error and discrimination prohibited by 5 U 
S C. 2302(b)(1). In an IRA appeal, however, the only issue before the 
Board is whether the agency took one or more covered personnel actions 
against the appellant in retaliation for making protected 
whistleblowing disclosures.
    In 1994, the year after Massimino was issued, Congress amended 5 
U.S.C. 7121 to add paragraph (g). Public Law 103-424, section 9(b), 108 
Stat. 4361, 4365-66 (1994). Subsection (g)(3) provides that an employee 
affected by a prohibited personnel practice ``may elect not more than 
one'' of 3 remedies: (A) An appeal to the Board under 5 U.S.C. 7701; 
(B) a negotiated grievance under 5 U.S.C. 7121(d); or (C) corrective 
action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a 
complaint filed with OSC (5 U.S.C. 1214), which can be followed by an 
IRA appeal filed with the Board (5 U.S.C. 1221). Under 5 U.S.C. 
7121(g)(4), an election is deemed to have been made based on which of 
the 3 actions the individual files first.
    A plain reading of 5 U.S.C. 7121(g) indicates that, contrary to 
Massimino, an individual who has been subjected to an otherwise 
appealable action, but who seeks corrective action from OSC before 
filing an appeal with the Board, has elected an IRA appeal, and is 
limited to the rights associated with such an appeal, i.e., the only 
issue before the Board is whether the agency took one or more covered 
personnel actions against the appellant in retaliation for making 
protected whistleblowing disclosures; the agency need not prove the 
elements of its case, and the appellant may not raise other affirmative 
defenses. The Board has never reconsidered or amended its holding in 
Massimino in light of the 1994 amendment to section 7121, despite the 
fact that OSC later suggested that the Board change its regulatory 
guidance in 5 CFR 1201.21 ``to include notice of the right to file a 
prohibited personnel practice complaint with the Special Counsel and 
the requirement for making an election among a grievance, an appeal to 
MSPB, and a complaint to the Special Counsel.'' See 65 FR 25623, 25624 
(2000). The proposed rule adopts this plain language reading of 5 
U.S.C. 7121(g) and overrules Massimino and its progeny.
    When taking an otherwise appealable action, agencies would be 
required, per revised 5 CFR 1201.21, to advise employees of their 
options under 5 U.S.C. 7121(g) and the consequences of such an 
election, including the fact that the employee would be foregoing 
important rights if he or she seeks corrective action from OSC before 
filing with the Board.

Section 1209.4 Definitions

    The Board's case law, as well as its acknowledgment and 
jurisdictional orders, speak in terms of ``protected disclosures,'' but 
this regulation defines ``whistleblowing'' and the Part 1209 
regulations refer in several places to ``whistleblowing activities.'' 
This minor revision to the definition combines the two concepts so that 
the use of ``whistleblowing activities'' is not ambiguous.

Section 1209.5 Time of Filing

    The MSPB proposes to amend this regulation to eliminate the 
distinction between IRA appeals and otherwise appealable actions in 
light of the change made to 5 CFR 1209.2; and revise the language 
regarding equitable tolling consistent with the changes made in 
sections 5 CFR 1208.21 and .22. In a number of IRA appeals, the Board 
has considered whether an untimely appeal can be excused under the 
doctrine of equitable tolling. See, e.g., Pacilli v. Department of 
Veterans Affairs, 113 M.S.P.R. 526, ] 11 1011 10; Bauer v. Department 
of the Army, 88 M.S.P.R. 352, ]] 8-9 (2001); Wood v. Department of the 
Air Force, 54 M.S.P.R. 587, 593 (1992). As in VEOA appeals, the MSPB 
believes that the possibility of excusing the filing deadline under the 
doctrine of equitable tolling should be addressed in the Board's 
timeliness regulation

Section 1209.6 Content of Appeal; Right to Hearing

    As with the proposed modification to 5 CFR 1201.24(d), this 
proposed rule clarifies that an appellant does not automatically have a 
right to a hearing in every Board appeal; the right exists, if at all, 
only when the appeal has been timely filed and the appellant has 
established jurisdiction over the appeal.

List of Subjects in 5 CFR Parts 1200, 1201, 1203, 1208, and 1209

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
proposes to amend 5 CFR parts 1200, 1201, 1203, 1208, and 1209 as 
follows:

PART 1200--[AMENDED]

    1. The authority citation for 5 CFR part 1200 continues to read as 
follows:

    Authority:  5 U.S.C. 1201 et seq.

    2. Add Sec.  1200.4 as follows:

[[Page 33672]]

Sec.  1200.4  Petition for Rulemaking.

    (a) Any interested person may petition the MSPB for the issuance, 
amendment, or repeal of a rule. For purposes of this regulation, a 
``rule'' means a regulation contained in 5 CFR parts 1200 through 1214. 
Each petition shall:
    (1) Be submitted to the Clerk of the Board, 1615 M Street NW., 
Washington, DC 20419;
    (2) Set forth the text or substance of the rule or amendment 
proposed or specify the rule sought to be repealed;
    (3) Explain the petitioner's interest in the action sought; and
    (4) Set forth all data and arguments available to the petitioner in 
support of the action sought.
    (b) No public procedures will be held on the petition before its 
disposition. If the MSPB finds that the petition contains adequate 
justification, a rulemaking proceeding will be initiated or a final 
rule will be issued as appropriate. If the Board finds that the 
petition does not contain adequate justification, the petition will be 
denied by letter or other notice, with a brief statement of the ground 
for denial. The Board may consider new evidence at any time; however, 
repetitious petitions for rulemaking will not be considered.

PART 1201--PRACTICES AND PROCEDURES

    3. The authority citation for 5 CFR part 1201 continues to read as 
follows:

    Authority:  5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.

    4. Revise paragraph (a) of Sec.  1201.3 to read as follows:


Sec.  1201.3  Appellate Jurisdiction.

    (a) Generally. The Board's appellate jurisdiction is limited to 
those matters over which it has been given jurisdiction by law, rule or 
regulation. The Board's jurisdiction does not depend solely on the 
nature of the action or decision taken or made but may also depend on 
the type of federal appointment the individual received, e.g., 
competitive or excepted service, whether an individual is preference 
eligible, and other factors. Accordingly, the laws and regulations 
cited below, which are the source of the Board's jurisdiction, should 
be consulted to determine not only the nature of the actions or 
decisions that are appealable, but also the limitations as to the types 
of employees, former employees, or applicants for employment who may 
assert them. Instances in which a law or regulation authorizes the 
Board to hear an appeal or claim include the following:
    (1) Adverse Actions. Removals (terminations of employment after 
completion of probationary or other initial service period), reductions 
in grade or pay, suspension for more than 14 days, or furloughs for 30 
days or less for cause that will promote the efficiency of the service; 
an involuntary resignation or retirement is considered to be a removal 
(5 U.S.C. 7511-7514; 5 CFR part 752, subparts C and D);
    (2) Retirement Appeals. Determinations affecting the rights or 
interests of an individual under the federal retirement laws (5 U.S.C. 
8347(d)(1)-(2) and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 
839, 842, 844, and 846);
    (3) Termination of Probationary Employment. Appealable issues are 
limited to a determination that the termination was motivated by 
partisan political reasons or marital status, and/or if the termination 
was based on a pre-appointment reason, whether the agency failed to 
take required procedures. These appeals are not generally available to 
employees in the excepted service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 
315.806 & 315.908(b));
    (4) Restoration to Employment Following Recovery from a Work-
Related Injury. Failure to restore, improper restoration of, or failure 
to return following a leave of absence following recovery from a 
compensable injury. (5 CFR 353.304);
    (5) Performance-Based Actions Under Chapter 43. Reduction in grade 
or removal for unacceptable performance (5 U.S.C. 4303(e); 5 CFR part 
432);
    (6) Reduction in Force. Separation, demotion, or furlough for more 
than 30 days, when the action was effected because of a reduction in 
force (5 CFR 351.901); Reduction-in-force action affecting a career or 
career candidate appointee in the Foreign Service (22 U.S.C. 4011);
    (7) Employment Practices Appeal. Employment practices administered 
by the Office of Personnel Management to examine and evaluate the 
qualifications of applicants for appointment in the competitive service 
(5 CFR 300.104);
    (8) Denial of Within-Grade Pay Increase. Reconsideration decision 
sustaining a negative determination of competence for a general 
schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410);
    (9) Negative Suitability Determination. Disqualification of an 
employee or applicant because of a suitability determination (5 CFR 
731.501). Suitability determinations relate to an individual's 
character or conduct that may have an impact on the integrity or 
efficiency of the service;
    (10) Various Actions Involving the Senior Executive Service. 
Removal or suspension for more than 14 days (5 U.S.C. 7511-7514; 5 CFR 
part 752, subparts E and F); Reduction-in-force action affecting a 
career appointee (5 U.S.C. 3595); or Furlough of a career appointee (5 
CFR 359.805); and
    (11) Miscellaneous Restoration and Reemployment Matters. Failure to 
afford reemployment priority right pursuant to a Reemployment Priority 
List following separation by reduction in force, or full recovery from 
a compensable injury after more than 1 year, because of the employment 
of another person (5 CFR 330.214, 302.501); Failure to reinstate a 
former employee after service under the Foreign Assistance Act of 1961 
(5 CFR 352.508); Failure to re-employ a former employee after movement 
between executive agencies during an emergency (5 CFR 352.209); Failure 
to re-employ a former employee after detail or transfer to an 
international organization (5 CFR 352.313); Failure to re-employ a 
former employee after service under the Indian Self-Determination Act 
(5 CFR 352.707); or Failure to re-employ a former employee after 
service under the Taiwan Relations Act (5 CFR 352.807).
* * * * *
    5. In Sec.  1201.4 revise paragraphs (a) and (j) to read as 
follows:


Sec.  1201.4  General definitions.

    (a) Judge. Any person authorized by the Board to hold a hearing or 
to decide a case without a hearing, including an administrative law 
judge appointed under 5 U.S.C. 3105 or other employee of the Board 
designated by the Board to hear such cases, except that in any case 
involving a removal from the service, the case shall be heard by the 
Board, an employee experienced in hearing appeals, or an administrative 
law judge.
* * * * *
    (j) Date of service. ``Date of service'' has the same meaning as 
``date of filing'' under paragraph (l) of this section. Unless a 
different deadline is specified by the administrative judge or other 
designated Board official, whenever a regulation in this part bases a 
party's deadline for filing a pleading on the date of service of some 
previous document, and the previous document was served on the party by 
mail, the filing deadline will be extended by 5 calendar days.
* * * * *
    6. In Sec.  1201.14 revise paragraphs (c) and (m) as follows:


Sec.  1201.14  Electronic Filing Procedures.

* * * * *

[[Page 33673]]

    (c) Matters excluded from electronic filing. Electronic filing may 
not be used to:
    (1) File a request to hear a case as a class appeal or any 
opposition thereto (Sec.  1201.27);
    (2) Serve a subpoena (Sec.  1201.83);
    (3) File a pleading with the Special Panel (Sec.  1201.137);
    (4) File a pleading that contains Sensitive Security Information 
(SSI) (49 CFR parts 15 and 1520);
    (5) File a pleading that contains classified information (32 CFR 
part 2001); or
    (6) File a request to participate as an amicus curiae or file a 
brief as amicus curiae pursuant to Sec.  1201.34 of this part.
* * * * *
    (m) Date electronic documents are filed and served.
    (1) As provided in Sec.  1201.4(l) of this Part, the date of filing 
for pleadings filed via e-Appeal Online is the date of electronic 
submission. All pleadings filed via e-Appeal Online are time stamped 
with Eastern Time, but the timeliness of a pleading will be determined 
based on the time zone from which the pleading was submitted. For 
example, a pleading filed at 11 p.m. Pacific Time on August 20 will be 
stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on 
August 21. However, if the pleading was required to be filed with the 
Washington Regional Office (in the Eastern Time Zone) on August 20, it 
would be considered timely, as it was submitted prior to midnight 
Pacific Time on August 20.
    (2) * * *
* * * * *
    7. In Sec.  1201.21 revise paragraph (d) and add a new paragraph 
(e) as follows:


Sec.  1201.21  Notice of appeal rights.

    When an agency issues a decision notice to an employee on a matter 
that is appealable to the Board, the agency must provide the employee 
with the following:
* * * * *
    (d) Notice of any right the employee has to file a grievance or 
seek corrective action under subchapters II and III of 5 U.S.C. chapter 
12, including:
    (1) * * *
    (2) Whether both an appeal to the Board and a grievance may be 
filed on the same matter and, if so, the circumstances under which 
proceeding with one will preclude proceeding with the other, and 
specific notice that filing a grievance will not extend the time limit 
for filing an appeal with the Board;
    (3) Whether there is any right to request Board review of a final 
decision on a grievance in accordance with 1201.154(d) of this part; 
and
    (4) The effect of any election under 5 U.S.C. 7121(g), including 
the effect that seeking corrective action under subchapters II and III 
of 5 U.S.C. chapter 12 will have on the employee's appeal rights before 
the Board.
    (e) Notice of any right the employee has to file a complaint with 
the Equal Employment Opportunity Commission, consistent with the 
provisions of 29 CFR 1614.302.
    8. In Sec.  1201.22 revise paragraph (b) by adding a new 
subparagraph (3) as follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

* * * * *
    (b) Time of filing. * * *
    (1) * * *
    (2) * * *
    (3) An appellant is responsible for keeping the agency informed of 
his or her current home address for purposes of receiving the agency's 
decision, and correspondence which is properly addressed and sent to 
the appellant's address via postal or commercial delivery is presumed 
to have been duly delivered to the addressee. While such a presumption 
may be overcome under the circumstances of a particular case, an 
appellant may not avoid service of a properly addressed and mailed 
decision by intentional or negligent conduct which frustrates actual 
service. The appellant may also be deemed to have received the agency's 
decision if it was received by a designated representative, or a person 
of suitable age and discretion residing with the appellant. The 
following examples illustrate the application of this rule:

    Example A:  An appellant who fails to pick up mail delivered to 
his or her post office box is deemed to have received the agency 
decision.
    Example B:  An appellant who did not receive his or her mail 
while in the hospital overcomes the presumption of actual receipt.
    Example C:  An appellant is deemed to have received an agency 
decision received by his or her roommate.
* * * * *
    9. Revise Sec.  1201.23 to read as follows:


Sec.  1201.23  Computation of time.

    In computing the number of days allowed for complying with any 
deadline, the first day counted is the day after the event from which 
the time period begins to run. If the date that ordinarily would be the 
last day for filing falls on a Saturday, Sunday, or Federal holiday, 
the filing period will include the first workday after that date.
    10. In Sec.  1201.24 revise subparagraph (a)(7) and paragraph (d) 
to read as follows:


Sec.  1201.24  Content of an appeal; right to hearing.

    (a) * * *
    (7) Where applicable, a copy of the notice of proposed action, the 
agency decision being appealed and, if available, the SF-50 or similar 
notice of personnel action. No other attachments should be included 
with the appeal, as the agency will be submitting the documents 
required by 1201.25 of this part, and there will be several 
opportunities to submit evidence and argument after the appeal is 
filed. An appellant should not miss the deadline for filing merely 
because he or she does not currently have all of the documents 
specified in this section.
* * * * *
    (d) Right to hearing. In an appeal under 5 U.S.C. 7701, an 
appellant generally has a right to a hearing on the merits if the 
appeal has been timely filed and the Board has jurisdiction over the 
appeal.
* * * * *
    11. Revise Sec.  1201.28 to read as follows:


Sec.  1201.28  Case suspension procedures.

    (a) Suspension period. The judge may issue an order suspending the 
processing of an appeal for up to 30 days. The judge may grant a second 
order suspending the processing of an appeal for up to an additional 30 
days.
    (b) Early termination of suspension period. The administrative 
judge may terminate the suspension period upon joint request of the 
parties, or where the parties' request the judge's assistance and the 
judge's involvement is likely to be extensive.
    (c) Termination of suspension period. If the final day of any 
suspension period falls on a day on which the Board is closed for 
business, adjudication shall resume as of the first business day 
following the expiration of the period.
    12. Add Sec.  1201.29 as follows:


Sec.  1201.29  Dismissal without prejudice.

    (a) In general. A dismissal of an appeal without prejudice is a 
dismissal which allows for the refiling of the appeal in the future. A 
dismissal without prejudice is a procedural option committed to the 
judge's sound discretion, and is appropriate when the interests of 
fairness, due process, and administrative efficiency outweigh any 
prejudice to either party. A dismissal without prejudice may be granted 
at the request of either party or by the judge on his or her own 
motion. Subject to the

[[Page 33674]]

provisions of section 1201.12 of this part, a decision dismissing an 
appeal without prejudice shall include a date certain by which the 
appeal must be refiled.
    (b) Objection by appellant. Where a dismissal without prejudice is 
issued over the objection of the appellant, the appeal will be 
automatically refiled as of a date certain.
    (c) Reinstatement of Appeal. Depending on the type of case, the 
judge will determine whether a dismissal without prejudice must be 
refiled by the appellant or whether it will be automatically refiled as 
of a certain date. When the dismissed appeal must be refiled by the 
appellant and is refiled late, requests for a waiver of the late filing 
based upon good cause will be liberally construed.
    13. In Sec.  1201.31 revise paragraphs (b) and (d) as follows:


Sec.  1201.31  Representatives.

* * * * *
    (b) A party may choose any representative as long as that person is 
willing and available to serve. The other party or parties may 
challenge the designation, however, on the ground that it involves a 
conflict of interest or a conflict of position. Any party who 
challenges the designation must do so by filing a motion with the judge 
within 15 days after the date of service of the notice of designation 
or 15 days after a party becomes aware of the conflict. The judge will 
rule on the motion before considering the merits of the appeal. These 
procedures apply equally to each designation of representative, 
regardless of whether the representative was the first one designated 
by a party or a subsequently designated representative. If a 
representative is disqualified, the judge will give the party whose 
representative was disqualified a reasonable time to obtain another 
one.
* * * * *
    (d) As set forth in paragraphs (d) and (e) of section 1201.43 of 
this part, a judge may exclude a representative from all or any portion 
of the proceeding before him or her for contumacious conduct or conduct 
prejudicial to the administration of justice.
* * * * *
    14. In Sec.  1201.33 revise paragraph (a) to read as follows:


Sec.  1201.33  Federal witnesses.

    (a) Every Federal agency or corporation, including nonparties, must 
make its employees or personnel available to furnish sworn statements 
or to appear at a deposition or hearing when ordered by the judge to do 
so. When providing those statements or appearing at the hearing, 
Federal employee witnesses will be in official duty status (i.e., 
entitled to pay and benefits including travel and per diem, where 
appropriate).
* * * * *
    15. In Sec.  1201.34 revise paragraph (e) to read as follows:


Sec.  1201.34  Intervenors and amicus curiae.

* * * * *
    (e) Amicus curiae.
    (1) An amicus curiae is a person or organization who, although not 
a party to an appeal, gives advice or suggestions by filing a brief 
with the judge or the Board regarding an appeal. Any person or 
organization, including those who do not qualify as intervenors, may 
request permission to file an amicus brief.
    (2) A request to file an amicus curiae brief must include a 
statement of the person's or organization's interest in the appeal and 
how the brief will be relevant to the issues involved.
    (3) The request may be granted, in the discretion of the judge or 
the Board, if the person or organization has a legitimate interest in 
the proceedings, and such participation will not unduly delay the 
outcome and may contribute materially to the proper disposition 
thereof.
    (4) The amicus curiae shall submit its brief within the time limits 
set by the judge or the Board, and must comply with any further orders 
by the judge or the Board.
    (5) An amicus curiae is not a party to the proceeding and may not 
participate in any way in the conduct of the hearing, including the 
presentation of evidence or the examination of witnesses. The Board 
may, in its discretion, invite an amicus curiae to participate in oral 
argument in proceedings in which oral argument is scheduled.
    16. In Sec.  1201.36 revise paragraph (a) to read as follows:


Sec.  1201.36  Consolidating and joining appeals.

    (a) Explanation. (1) * * *
    (2) Joinder occurs when one person has filed two or more appeals 
and they are united for consideration. For example, a judge might join 
an appeal challenging a 30-day suspension with a pending appeal 
challenging a subsequent removal if the same appellant filed both 
appeals.
* * * * *
    17. In Sec.  1201.41, revise the first sentence of paragraph (b) as 
follows:


Sec.  1201.41  Judges.

* * * * *
    (b) Authority. Judges will conduct fair and impartial hearings and 
will issue timely and clear decisions based on statutes and legal 
precedents. * * *
* * * * *
    18. In Sec.  1201.42 revise paragraph (a) to read as follows:


Sec.  1201.42  Disqualifying a Judge.

    (a) If a judge considers himself or herself disqualified, he or she 
will withdraw from the case, state on the record the reasons for doing 
so, and another judge will be promptly assigned.
* * * * *
    19. In Sec.  1201.43 revise the introductory paragraph and insert 
new paragraphs (d) and (e) to read as follows:


Sec.  1201.43  Sanctions.

    The judge may impose sanctions upon the parties as necessary to 
serve the ends of justice. This authority covers, but is not limited 
to, the circumstances set forth in paragraphs (a), (b), (c), (d), and 
(e) of this section. Before imposing a sanction, the judge shall 
provide appropriate prior warning, allow a response to the actual or 
proposed sanction when feasible, and document the reasons for any 
resulting sanction in the record.
* * * * *
    (d) Exclusion of a representative or other person. A judge may 
exclude or limit the participation of a representative or other person 
in the case for contumacious conduct or conduct prejudicial to the 
administration of justice. When the judge excludes a party's 
representative, the judge will afford the party a reasonable time to 
obtain another representative before proceeding with the case.
    (e) Cancellation, suspension, or termination of hearing. A judge 
may cancel a scheduled hearing, or suspend or terminate a hearing in 
progress, for contumacious conduct or conduct prejudicial to the 
administration of justice on the part of the appellant or the 
appellant's representative. If the judge suspends a hearing, the 
parties must be given notice as to when the hearing will resume. If the 
judge cancels or terminates a hearing, the judge must set a reasonable 
time during which the record will be kept open for receipt of written 
submissions.
    20. In Sec.  1201.51 revise paragraph (d) to read as follows:


Sec.  1201.51  Scheduling the hearing.

* * * * *
    (d) The Board has established certain approved hearing locations, 
which are listed on the Board's public Web site (www.mspb.gov). The 
judge will advise parties of these hearing sites as

[[Page 33675]]

appropriate. Parties, for good cause, may file motions requesting a 
different hearing location. Rulings on those motions will be based on a 
showing that a different location will be more advantageous to all 
parties and to the Board.
    21. Revise Sec.  1201.52 to read as follows:


Sec.  1201.52  Public hearings.

    Hearings are open to the public. However, the judge may order a 
hearing or any part of a hearing closed when doing so would be in the 
best interests of the appellant, a witness, the public, or any other 
person affected by the proceeding. Any order closing the hearing will 
set out the reasons for the judge's decision. Any objections to the 
order will be made a part of the record. Absent express approval from 
the judge, no two-way communications devices may be operated and/or 
powered on in the hearing room. Further, no cameras, recording devices, 
and/or transmitting devices may be operated, operational, and/or 
powered on in the hearing room without the express approval of the 
judge.
    22. Revise Sec.  1201.53 to read as follows:


Sec.  1201.53  Record of proceedings.

    (a) Recordings. A recording of the hearing is generally prepared by 
a court reporter, under the judge's guidance. Such a recording is 
included with the Board's copy of the appeal file and serves as the 
official hearing record. Judges may prepare recordings in some 
hearings, such as those conducted telephonically. Copies of recordings 
will be provided to parties without charge upon request.
    (b) Transcripts. A ``transcript'' refers not only to printed copies 
of the hearing testimony, but also to electronic versions of such 
documents. Along with recordings, a transcript prepared by the court 
reporter is accepted by the Board as the official hearing record. Any 
party may request that the court reporter prepare a full or partial 
transcript, at the requesting party's expense. In the absence of a 
request by a party, and upon determining that a transcript would 
significantly assist in the preparation of a clear, complete, and 
timely decision, the judge or the Board may direct the agency to 
purchase a full or partial transcript from the court reporter, and to 
provide copies of such a transcript to the appellant and the Board. 
Judges do not prepare transcripts.
    (c) Copies. Copies of recordings or existing transcripts will be 
provided upon request to parties free of charge. Such requests should 
be made in writing to the adjudicating regional or field office, or to 
the Clerk of the Board, as appropriate. Non-parties may request a copy 
of a hearing recording or existing transcript under the Freedom of 
Information Act (FOIA) and Part 1204 of the Board's regulation. A non-
party may request a copy by writing to the appropriate Regional 
Director, the Chief Administrative Judge of the appropriate MSPB Field 
Office, or to the Clerk of the Board at MSPB headquarters in 
Washington, DC, as appropriate. Non-parties may also make FOIA requests 
online at https://foia.mspb.gov.
    (d) Corrections to transcript. Any discrepancy between the 
transcript and the recording shall be resolved by the judge or the 
Clerk of the Board as appropriate. Corrections to the official 
transcript may be made on motion by a party or on the judge's own 
motion or by the Clerk of the Board as appropriate. Motions for 
corrections must be filed within 10 days after the receipt of a 
transcript. Corrections of the official transcript will be made only 
when substantive errors are found by the judge, or by the Clerk of the 
Board, as appropriate.
    23. Revise Sec.  1201.56(a) to read as follows:


Sec.  1201.56.  Burden and degree of proof; affirmative defenses.

    (a) Burden and degree of proof.
    (1) Agency. The agency has the burden of proving:
    (i) A performance-based action brought under 5 U.S.C. 4303 or 5335 
by substantial evidence; and
    (ii) All other agency actions by a preponderance of the evidence.
    (2) Appellant.
    (i) Jurisdiction. The appellant has the burden of establishing 
Board jurisdiction. Unless otherwise specified in Parts 1201, 1208, and 
1209 of the Board's regulations, the jurisdictional elements for a 
particular type of appeal are established by the Board's case law. The 
Board will explicitly inform the appellant as to the requirements for 
establishing jurisdiction in a given case.
    (A) The appellant must establish the following jurisdictional 
elements by preponderant evidence: Whether the appellant is a person 
entitled to bring the sort of appeal authorized by the law, rule, or 
regulation that gives the Board jurisdiction; whether the agency action 
or decision being challenged is of a type covered by the law, rule, or 
regulation that gives the Board jurisdiction; and whether the appellant 
has exhausted a required administrative remedy before filing a Board 
appeal. An appellant who makes a nonfrivolous allegation of a 
jurisdictional element under this paragraph is entitled to a 
jurisdictional hearing to establish the element by preponderant 
evidence. A nonfrivolous allegation is an allegation of facts that, if 
proven, would establish the jurisdictional element in question.
    (B) Otherwise, jurisdiction is established by making nonfrivolous 
allegations of fact that, if proven, would entitle an appellant to 
relief.
    (ii) Timeliness, affirmative defenses, and retirement matters. The 
appellant has the burden of proof, by preponderant evidence, with 
respect to:
    (A) The timeliness of the appeal;
    (B) Affirmative defenses as described in paragraph (c) of this 
section; and
    (C) Entitlement to retirement benefits (where an appellant's 
application for such benefits has been denied by a reconsideration 
decision of the Office of Personnel Management).
    (iii) Overpayments. The appellant has the burden of proof, by 
substantial evidence, with respect to eligibility for waiver or 
adjustment of an overpayment from the Civil Service Retirement and 
Disability Fund.
* * * * *
    24. In Sec.  1201.58 revise paragraph (c) to read as follows:


Sec.  1201.58  Closing the record.

* * * * *
    (c) Once the record closes, additional evidence or argument will 
ordinarily not be accepted unless the party submitting it shows that 
the evidence or argument was not readily available before the record 
closed. Notwithstanding the close of the record, however, a party must 
be allowed to submit evidence or argument to rebut new evidence or 
argument submitted by the other party just before the close of the 
record. The judge will include in the record any supplemental citations 
received from the parties or approved corrections of the transcript, if 
one has been prepared.


Sec.  1201.62  [Removed]

    25. Remove Sec.  1201.62.
    26. Amend Sec.  1201.71 by adding two new sentences at the end as 
follows:


Sec.  1201.71  Purpose of discovery.

    * * * Discovery requests and responses thereto are not to be filed 
in the first instance with the Board. They are only filed with the 
Board in connection with a motion to compel discovery under 1201.73(c) 
of this part, with a motion to subpoena discovery under 1201.73(d) of 
this part, or as substantive evidence to be considered in the appeal.
    27. Revise Sec.  1201.73 to read as follows:

[[Page 33676]]

Sec.  1201.73  Discovery procedures.

    (a) Initiating discovery. A party seeking discovery must start the 
process by serving a request for discovery on the representative of the 
party or nonparty, or, if there is no representative, on the party or 
nonparty themselves. The request for discovery must state the time 
limit for responding, as prescribed in 1201.73(d) of this part, and 
must specify the time and place of the taking of the deposition, if 
applicable. When a party directs a request for discovery to the 
official or employee of a Federal agency that is a party, the agency 
must make the officer or employee available on official time to respond 
to the request, and must assist the officer or employee as necessary in 
providing relevant information that is available to the agency.
    (b) Responses to discovery requests. A party or nonparty must 
answer a discovery request within the time provided under paragraph 
(d)(2) of this section, either by furnishing to the requesting party 
the information requested or agreeing to make deponents available to 
testify within a reasonable time, or by stating an objection to the 
particular request and the reasons for the objection. Parties and 
nonparties may respond to discovery requests by electronic mail if 
authorized by the requesting party.
    (c) Motions to compel or issue a subpoena. (1) If a party fails or 
refuses to respond in full to a discovery request, the requesting party 
may file a motion to compel discovery. If a nonparty fails or refuses 
to respond in full to a discovery request, the requesting party may 
file a motion for the issuance of a subpoena directed to the individual 
or entity from which the discovery is sought under the procedures 
described in 1201.81 of this part. The requesting party must serve a 
copy of the motion on the other party or nonparty. Before filing any 
motion to compel or issue a subpoena, the moving party shall discuss 
the anticipated motion with the opposing party or nonparty and all 
those involved shall make a good faith effort to resolve the discovery 
dispute and narrow the areas of disagreement. The motion shall include:
    (i) A copy of the original request and a statement showing that the 
information sought is relevant and material and that the scope of the 
request is reasonable;
    (ii) A copy of the response to the request (including the 
objections to discovery) or, where appropriate, a statement that no 
response has been received, along with an affidavit or sworn statement 
under 28 U.S.C. 1746 supporting the statement (See appendix IV to part 
1201); and
    (iii) A statement that the moving party has discussed or attempted 
to discuss the anticipated motion with the nonmoving party or nonparty, 
and made a good faith effort to resolve the discovery dispute and 
narrow the areas of disagreement.
    (2) The party or nonparty from whom discovery was sought may 
respond to the motion to compel or the motion to issue a subpoena 
within the time limits stated in paragraph (d)(3) of this section.
    (d) Time limits. (1) Unless otherwise directed by the judge, 
parties must serve their initial discovery requests within 30 days 
after the date on which the judge issues an order to the respondent 
agency to produce the agency file and response.
    (2) A party or nonparty must file a response to a discovery request 
promptly, but not later than 20 days after the date of service of the 
request or order of the judge. Any discovery requests following the 
initial request must be served within 10 days of the date of service of 
the prior response, unless the parties are otherwise directed by the 
judge. Deposition witnesses must give their testimony at the time and 
place stated in the request for deposition or in the subpoena, unless 
the parties agree on another time or place.
    (3) Any motion for an order to compel or issue a subpoena must be 
filed with the judge within 10 days of the date of service of 
objections or, if no response is received, within 10 days after the 
time limit for response has expired. Any pleading in opposition to a 
motion to compel or subpoena discovery must be filed with the judge 
within 10 days of the date of service of the motion.
    (4) Discovery must be completed within the time period designated 
by the judge or, if no such period is designated, no later than the 
prehearing or close of record conference.
    (e) Limits on the number of discovery requests. (1) Absent prior 
approval by the judge, interrogatories served by parties upon another 
party or a nonparty may not exceed 25 in number, including all discrete 
subparts.
    (2) Absent prior approval by the judge or agreement by the parties, 
each party may not take more than 10 depositions.
    (3) Requests to exceed the limitations set forth in paragraphs 
(g)(1) and (g)(2) of this section may be granted at the discretion of 
the judge. In considering such requests, the judge shall consider the 
factors identified in Sec.  1201.72(d) of this part.
    28. In Sec.  1201.93. revise paragraph (c) to read as follows:


Sec.  1201.93  Procedures.

* * * * *
    (c) Stay of Appeal. The judge has the authority to proceed with or 
to stay the processing of the appeal while an interlocutory appeal is 
pending with the Board. If the judge does not stay the appeal, the 
Board may do so while an interlocutory appeal is pending with it.
    29. In Sec.  1201.101 revise subparagraph (b)(2) to read as 
follows:


Sec.  1201.101  Explanation and definitions.

* * * * *
    (b) * * *
    (2) Decision-making official means any judge, officer or other 
employee of the Board designated to hear and decide cases except when 
such judge, officer, or other employee of the Board is serving as a 
mediator or settlement judge who is not the adjudicating judge.
    30. In Sec.  1201.111 revise paragraph (a) ro read as follows:


Sec.  1201.111  Initial decision by judge.

    (a) The judge will prepare an initial decision after the record 
closes, and will serve that decision on all parties to the appeal, 
including named parties, permissive intervenors, and intervenors of 
right.
* * * * *
    31. In Sec.  1201.112 revise subparagraph (a)(4) to read as 
follows:


Sec.  1201.112  Jurisdiction of judge.

    (a) * * *
    (4) Vacate an initial decision to accept into the record a 
settlement agreement that is filed prior to the deadline for filing a 
petition for review, but is not received until after the date when the 
initial decision becomes final under 1201.113 of this part.
* * * * *
    32. In Sec.  1201.113 revise paragraphs (a) and (f) to read as 
follows:


Sec.  1201.113  Finality of decision.

    The initial decision of the judge will become the Board's final 35 
days after issuance. Initial decisions are not precedential.
    (a) Exceptions. The initial decision will not become the Board's 
final decision if within the time limit for filing specified in 
1201.114 of this part, any party files a petition for review or, if no 
petition for review is filed, files a request that the initial decision 
be vacated for the purpose of accepting a settlement agreement into the 
record.
* * * * *
    (f) When the Board, by final decision or order, finds there is 
reason to believe a current Federal employee may have committed a 
prohibited personnel practice described at 5 U.S.C.

[[Page 33677]]

2302(b)(8), the Board will refer the matter to the Special Counsel to 
investigate and take appropriate action under 5 U.S.C. 1215.
* * * * *
    33. Revise Sec.  1201.114 as follows:


Sec.  1201.114  Petition and cross petition for review--content and 
procedure.

    (a) Pleadings allowed. Pleadings allowed on review include a 
petition for review, a cross petition for review, a response to a 
petition for review, a response to a cross petition for review, and a 
reply to a response to a petition for review.
    (1) A petition for review is a pleading in which a party contends 
that an initial decision was incorrectly decided in whole or in part.
    (2) A cross petition for review has the same meaning as a petition 
for review, but is used to describe a pleading that is filed by a party 
when another party has already filed a timely petition for review.
    (3) A response to a petition for review and a cross petition for 
review may be contained in a single pleading.
    (4) A reply to a response to a petition for review is limited to 
the factual and legal issues raised by another party in the response to 
the petition for review. It may not raise new allegations of error.
    (5) No pleading other than the ones described in this paragraph 
will be accepted unless the party files a motion with and obtains leave 
from the Clerk of the Board. The motion must describe the nature of and 
need for the pleading.
    (b) Contents of petition or cross petition for review. A petition 
or cross petition for review states a party's objections to the initial 
decision, including all of the party's legal and factual arguments, and 
must be supported by references to applicable laws or regulations and 
by specific references to the record. Any petition or cross petition 
for review that contains new evidence or argument must include an 
explanation why the evidence or argument was not presented before the 
record below closed (see 1201.58 of this part). A petition or cross 
petition for review should not include documents that were part of the 
record below, as the entire administrative record will be available to 
the Board.
    (c) Who may file. Any party to the proceeding, the Director of the 
Office of Personnel Management (OPM), or the Special Counsel (under 5 
U.S.C. 1212(c)) may file a petition for review or cross petition for 
review. The Director of OPM may request review only if he or she 
believes that the decision is erroneous and will have a substantial 
impact on any civil service law, rule, or regulation under OPM's 
jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must 
contain the signature of the party or of the party's designated 
representative.
    (d) Place for filing. All pleadings described in paragraph (a) and 
all motions and pleadings associated with them must be filed with the 
Clerk of the Merit Systems Protection Board, 1615 M Street NW., 
Washington, DC 20419, by commercial or personal delivery, by facsimile, 
by mail, or by electronic filing in accordance with 1201.14 of this 
part.
    (e) Time for filing. Any petition for review must be filed within 
35 days after the date of issuance of the initial decision or, if the 
petitioner shows that the initial decision was received more than 5 
days after the date of issuance, within 30 days after the date the 
petitioner received the initial decision. For purposes of this section, 
the date that the petitioner receives the initial decision is 
determined according to the standard set forth at 1201.22(b)(3) of this 
part, pertaining to an appellant's receipt of a final agency decision. 
If the petitioner is represented, the 30-day time period begins to run 
upon receipt of the initial decision by either the representative or 
the petitioner, whichever comes first. A cross petition for review must 
be filed within 25 days of the date of service of the petition for 
review. Any response to a petition for review or to a cross petition 
for review must be filed within 25 days after the date of service of 
the petition or cross petition. Any reply to a response to a petition 
for review must be filed within 10 days after the date of service of 
the response to the petition for review or cross petition for review.
    (f) Extension of time to file. The Board will grant a motion for 
extension of time to file a pleading described in paragraph (a) only if 
the party submitting the motion shows good cause. Motions for 
extensions must be filed with the Clerk of the Board before the date on 
which the petition or other pleading is due. The Board, in its 
discretion, may grant or deny those motions without providing the other 
parties the opportunity to comment on them. A motion for an extension 
must be accompanied by an affidavit or sworn statement under 28 U.S.C. 
1746. (See Appendix IV.) The affidavit or sworn statement must include 
a specific and detailed description of the circumstances alleged to 
constitute good cause, and it should be accompanied by any available 
documentation or other evidence supporting the matters asserted.
    (g) Late filings. Any pleading described in paragraph (a) that is 
filed late must be accompanied by a motion that shows good cause for 
the untimely filing, unless the Board has specifically granted an 
extension of time under paragraph (f) of this section, or unless a 
motion for extension is pending before the Board. The motion must be 
accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. 
(See Appendix IV.) The affidavit or sworn statement must include:
    (1) The reasons for failing to request an extension before the 
deadline for the submission; and
    (2) A specific and detailed description of the circumstances 
causing the late filing, accompanied by supporting documentation or 
other evidence.
    Any response to the motion may be included in the response to the 
petition for review, the cross petition for review, or the response to 
the cross petition for review. The response will not extend the time 
provided by paragraph (e) of this section to file a cross petition for 
review or to respond to the petition or cross petition. In the absence 
of a motion, the Board may, in its discretion, determine on the basis 
of the existing record whether there was good cause for the untimely 
filing, or it may provide the party that submitted the document with an 
opportunity to show why it should not be dismissed or excluded as 
untimely.
    (h) Length limitations. A petition for review, a cross petition for 
review, or a response to a petition or cross petition for review, 
whether computer generated, typed, or handwritten, is limited to 30 
pages. A reply to a response to petition for review shall be limited to 
15 pages. Computer generated and typed pleadings must use no less than 
12 point typeface and 1-inch margins. The length limitation shall be 
exclusive of any table of contents, table of authorities, attachments, 
and certificate of service. A request for leave to file a pleading that 
exceeds the limitations prescribed in this paragraph must be received 
by the Clerk of the Board at least 3 days before the filing deadline. 
Such requests must give the reasons therefore as well as the desired 
length of the pleading, and are granted only in exceptional 
circumstances or if the Board in specific cases changes the length 
limitation.
    (i) Redesignate paragraph (g) as paragraph (i).
    (j) Redesignate paragraph (h) as paragraph (j)
    (k) Closing the record. The record closes on expiration of the 
period for filing the reply to the response to the petition for review, 
or on expiration of the period for filing a response to the cross 
petition for review, whichever is

[[Page 33678]]

later, or to the brief on intervention, if any, or on any other date 
the Board sets for this purpose. Once the record closes, no additional 
evidence or argument will be accepted unless the party submitting it 
shows that the evidence was not readily available before the record 
closed.
    34. Revise Sec.  1201.115 to read as follows:


Sec.  1201.115  Criteria for granting petition or cross petition for 
review.

    The Board normally will consider only issues raised in a timely 
filed petition or cross petition for review. Situations in which the 
Board may grant a petition or cross petition for review include, but 
are not limited to, a showing that:
    (a) The initial decision contains erroneous findings of material 
fact;
    (1) Any alleged factual error must be material, meaning of 
sufficient weight to warrant an outcome different from that of the 
initial decision.
    (2) A petitioner who alleges that the judge made erroneous findings 
of material fact must explain why the challenged factual determination 
is incorrect and identify specific evidence in the record that 
demonstrates the error. In reviewing a claim of an erroneous finding of 
fact, the Board will give deference to an administrative judge's 
credibility determinations when they are based, explicitly or 
implicitly, on the observation of the demeanor of witnesses testifying 
at a hearing.
    (b) The initial decision is based on an erroneous interpretation of 
statute or regulation or the erroneous application of the law to the 
facts of the case. The petitioner must explain how the error affected 
the outcome of the case;
    (c) The judge's rulings during either the course of the appeal or 
the initial decision were not consistent with required procedures or 
involved an abuse of discretion, and the resulting error affected the 
outcome of the case;
    (d) New and material evidence or legal argument is available that, 
despite the petitioner's due diligence, was not available when the 
record closed. To constitute new evidence, the information contained in 
the documents, not just the documents themselves, must have been 
unavailable despite due diligence when the record closed.
    (e) Notwithstanding the above provisions in this section, the Board 
reserves the authority to identify or reconsider any issue in an appeal 
before it.
    35. Revise Sec.  1201.116 to read as follows:


Sec.  1201.116  Compliance with orders for interim relief.

    (a) Certification of compliance. If the appellant was the 
prevailing party in the initial decision, and the decision granted the 
appellant interim relief, any petition for review or cross petition for 
review filed by the agency must be accompanied by a certification that 
the agency has complied with the interim relief order either by 
providing the required interim relief or by satisfying the requirements 
of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
    (b) Challenge to certification. If the appellant challenges the 
agency's certification of compliance with the interim relief order, the 
Board will issue an order affording the agency the opportunity to 
submit evidence of its compliance. The appellant may respond to the 
agency's submission of evidence within 10 days after the date of 
service of the submission.
    (c) Allegation of noncompliance in petition or cross petition for 
review. If an appellant or an intervenor files a petition or cross 
petition for review of an initial decision ordering interim relief and 
such petition includes a challenge to the agency's compliance with the 
interim relief order, upon order of the Board the agency must submit 
evidence that it has provided the interim relief required or that it 
has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
    (d) Request for dismissal for noncompliance with interim relief 
order. If the agency files a petition for review or a cross petition 
for review and has not provided required interim relief, the appellant 
may request dismissal of the agency's petition. Any such request must 
be filed with the Clerk of the Board within 25 days of the date of 
service of the agency's petition. A copy of the response must be served 
on the agency at the same time it is filed with the Board. The agency 
may respond with evidence and argument to the appellant's request to 
dismiss within 15 days of the date of service of the request. If the 
appellant files a motion to dismiss beyond the time limit, the Board 
will dismiss the motion as untimely unless the appellant shows that it 
is based on information not readily available before the close of the 
time limit.
    (e) Effect of failure to show compliance with interim relief order. 
Failure by an agency to provide the certification required by paragraph 
(a) of this section with its petition or cross petition for review, or 
to provide evidence of compliance in response to a Board order in 
accordance with paragraphs (b), (c), or (d) of this section, may result 
in the dismissal of the agency's petition or cross petition for review.
    (f) Back pay and attorney fees. Nothing in this section shall be 
construed to require any payment of back pay for the period preceding 
the date of the judge's initial decision or attorney fees before the 
decision of the Board becomes final.
    (g) Allegations of noncompliance after a final decision is issued. 
If the initial decision granted the appellant interim relief, but the 
appellant is not the prevailing party in the final Board order 
disposing of a petition for review, and the appellant believes that the 
agency has not provided full interim relief, the appellant may file an 
enforcement petition with the regional office under 1201.182 of this 
part. The appellant must file this petition within 20 days of learning 
of the agency's failure to provide full interim relief. If the 
appellant prevails in the final Board order disposing of a petition for 
review, then any interim relief enforcement motion filed will be 
treated as a motion for enforcement of the final decision. Petitions 
under this subsection will be processed under 1201.183 of this part.
    36. In Sec.  1201.117 revise subparagraph (a)(1) to read as 
follows:


Sec.  1201.117  Procedures for review or reopening.

    (a) * * *
    (1) Issue a decision that decides the case;
* * * * *
    37. Revise Sec.  1201.118 to read as follows:


Sec.  1201.118  Board reopening of final decisions.

    Regardless of any other provision of this part, the Board may at 
any time reopen any appeal in which it has issued a final order or in 
which an initial decision has become the Board's final decision by 
operation of law. The Board will exercise its discretion to reopen an 
appeal only in unusual or extraordinary circumstances, and generally 
within a short period of time after the decision becomes final.


Sec.  1201.119  [Amended]

    38. In Sec.  1201.119(a), (b) and (d) remove the words ``final 
order'' and add, in their place, the words ``final decision''.
    39. In Sec.  1201.122 revise paragraph (b) and delete paragraphs 
(d) and (e) of as follows:


Sec.  1201.122  Filing complaint; serving documents on parties.

    (a) * * *
    (b) Initial filing and service. The Special Counsel must file a 
copy of the

[[Page 33679]]

complaint, together with numbered and tabbed exhibits or attachments, 
if any, and a certificate of service listing each party or the party's 
representative. The certificate of service must show the last known 
address, telephone number, and facsimile number of each party or 
representative. The Special Counsel must serve a copy of the complaint 
on each party or the party's representative, as shown on the 
certificate of service.
    (c) * * *
    40. In Sec.  1201.128 revise paragraph (b) and delete paragraphs 
(d) and (e) as follows:


Sec.  1201.128  Filing complaint; serving documents on parties.

    (a) * * *
    (b) Initial filing and service. The Special Counsel must file a 
copy of the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative, and each person on 
whose behalf the corrective action is brought.
    (c) * * *
    41. In Sec.  1201.134 revise paragraph (d) and delete paragraphs 
(f) and (g) as follows:


Sec.  1201.134  Deciding official; filing stay request; serving 
documents on parties.

* * * * *
    (d) Initial filing and service. The Special Counsel must file a 
copy of the request, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative. The certificate of 
service must show the last known address, telephone number, and 
facsimile number of the agency or its representative. The Special 
Counsel must serve a copy of the request on the agency or its 
representative, as shown on the certificate of service.
    (e) * * *
    42. In Sec.  1201.137 revise paragraph (c) and delete paragraphs 
(e) and (f) as follows:


Sec.  1201.137  Covered actions; filing complaint; serving documents on 
parties.

* * * * *
    (c) Initial filing and service. The agency must file two copies of 
the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing each party or 
the party's representative. The certificate of service must show the 
last known address, telephone number, and facsimile number of each 
party or representative. The agency must serve a copy of the complaint 
on each party or the party's representative, as shown on the 
certificate of service.
    (d) * * *
    43. Revise Sec.  1201.142 to read as follows:


Sec.  1201.142  Actions filed by administrative law judges.

    An administrative law judge who alleges a constructive removal or 
other action by an agency in violation of 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart. The filing and serving 
requirements of 1201.137 of this part apply. Such complaints shall be 
adjudicated in the same manner as agency complaints under this subpart.
    44. In Sec.  1201.143 revise paragraph (c) and delete paragraphs 
(e) and (f) as follows:


Sec.  1201.143  Right to hearing; filing complaint; serving documents 
on parties.

* * * * *
    (c) Initial filing and service. The appointee must file two copies 
of the request, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the agency 
proposing the appointee's removal or the agency's representative. The 
certificate of service must show the last known address, telephone 
number, and facsimile number of the agency or its representative. The 
appointee must serve a copy of the request on the agency or its 
representative, as shown on the certificate of service.
    (d) * * *
    45. In Sec.  1201.153 revise subparagraph (a)(2) as follows:


Sec.  1201.153  Contents of appeal.

    (a) * * *
    (1) * * *
    (2) The appeal must state whether the appellant has filed a 
grievance under a negotiated grievance procedure or a formal 
discrimination complaint with any agency regarding the matter being 
appealed to the Board. If he or she has done so, the appeal must state 
the date on which the appellant filed the complaint or grievance, and 
it must describe any action that the agency took in response to the 
complaint or grievance.
* * * * *
    46. In Sec.  1201.154 revise the introductory paragraph as follows:


Sec.  1201.154  Time for filing appeal; closing record in cases 
involving grievance decisions.

    For purposes of this section, the date an appellant receives the 
agency's decision is determined according to the standard set forth at 
1201.22(b)(3) of this part. Appellants who file appeals raising issues 
of prohibited discrimination in connection with a matter otherwise 
appealable to the Board must comply with the following time limits:
    (a) * * *
* * * * *
    47. Revise Sec.  1201.155 to read as follows:


Sec.  1201.155  Requests for review of arbitrators' decisions.

    (a) Source and applicability. (1) Under paragraph (d) of 5 U.S.C. 
7121, an employee who believes he or she has been subjected to 
discrimination within the meaning of 5 U.S.C. 2302(b)(1), and who may 
raise the matter under either a statutory procedure such as 5 U.S.C. 
7701 or under a negotiated grievance procedure, must make an election 
between the two procedures. The election of the negotiated grievance 
procedure ``in no manner prejudices'' the employee's right to request 
Board review of the final decision pursuant to 5 U.S.C. 7702. 
Subsection (a)(1) of section 7702 provides that, ``[n]otwithstanding 
any other provision of law,'' when an employee who has been subjected 
to an action that is appealable to the Board and who alleges that the 
action was the result of discrimination within the meaning of 5 U.S.C. 
2302(b)(1), the Board will decide both the issue of discrimination and 
the appealable action in accordance with the Board's appellate 
procedures under section 7701.
    (2) This section does not apply to employees of the Postal Service 
or to other employees excluded from the coverage of the federal labor 
management laws at Chapter 71 of title 5, United States Code.
    (b) Scope of Board Review. If the negotiated grievance procedure 
permits allegations of discrimination, the Board will review only those 
claims of discrimination that were raised in the negotiated grievance 
procedure. If the negotiated grievance procedure does not permit 
allegations of discrimination to be raised, the appellant may raise 
such claims before the Board.
    (c) Contents. The appellant must file the request with the Clerk of 
the Board, Merit Systems Protection Board, Washington, DC 20419. The 
request for review must contain:
    (1) A statement of the grounds on which review is requested;
    (2) References to evidence of record or rulings related to the 
issues before the Board;
    (3) Arguments in support of the stated grounds that refer 
specifically to relevant documents, and that include relevant citations 
of authority; and
    (4) Legible copies of the final grievance or arbitration decision, 
the

[[Page 33680]]

agency decision to take the action, and other relevant documents. Those 
documents may include a transcript or recording of the hearing.
    (d) Development of the Record. The Board, in its discretion, may 
develop the record as to a claim of prohibited discrimination by 
ordering the parties to submit additional evidence or forwarding the 
request for review to a judge to conduct a hearing.
    (e) Closing of the Record. The record will close upon expiration of 
the period for filing the response to the request for review, or to the 
brief on intervention, if any, or on any other date the Board sets for 
this purpose. Once the record closes, no additional evidence or 
argument will be accepted unless the party submitting it shows that the 
evidence was not readily available before the record closed.
    48. Revise Sec.  1201.181 to read as follows:


Sec.  1201.181  Authority and explanation.

    (a) Authority. Under 5 U.S.C. 1204(a)(2), the Board has the 
authority to order any Federal agency or employee to comply with 
decisions and orders issued under its jurisdiction, and the authority 
to enforce compliance with its orders and decisions. The Board's 
decisions and orders, when appropriate, will contain a notice of the 
Board's enforcement authority.
    (b) Requirements for parties. The parties are expected to cooperate 
fully with each other so that compliance with the Board's orders and 
decisions can be accomplished promptly and in accordance with the laws, 
rules, and regulations that apply to individual cases. Agencies must 
promptly inform an appellant of actions taken to comply and must inform 
the appellant when it believes compliance is complete. Appellants must 
provide agencies with all information necessary for compliance and 
should monitor the agency's progress towards compliance.
    49. In Sec.  1201.182 revise paragraphs (a) and (b) as follows:


Sec.  1201.182  Petition for enforcement.

    (a) Appellate jurisdiction. Any party may petition the Board for 
enforcement of a final decision or order issued under the Board's 
appellate jurisdiction, or for enforcement of the terms of a settlement 
agreement that has been entered into the record for the purpose of 
enforcement in an order or decision under the Board's appellate 
jurisdiction. The petition must be filed promptly with the regional or 
field office that issued the initial decision; a copy of it must be 
served on the other party or that party's representative; and it must 
describe specifically the reasons the petitioning party believes there 
is noncompliance. The petition also must include the date and results 
of any communications regarding compliance. Any petition for 
enforcement that is filed more than 30 days after the date of service 
of the agency's notice that it has complied must contain a statement 
and evidence showing good cause for the delay and a request for an 
extension of time for filing the petition.
    (b) Original jurisdiction. Any party seeking enforcement of a final 
Board decision or order issued under its original jurisdiction or 
enforcement of the terms of settlement agreement entered into the 
record for the purpose of enforcement in an order or decision issued 
under its original jurisdiction must file a petition for enforcement 
with the Clerk of the Board and must serve a copy of that petition on 
the other party or that party's representative. The petition must 
describe specifically the reasons why the petitioning party believes 
there is noncompliance.
* * * * *
    50. In Sec.  1201.183 revise paragraphs (a)(2) and (a)(5) through 
(a)(7), (b)(1), (b)(2), and (c), and redesignate paragraphs (c) and (d) 
as (d) and (e) as follows:


Sec.  1201.183  Procedures for processing petitions for enforcement.

    (a) Initial Processing. (1) * * *
    (2) If the agency is the alleged noncomplying party, it shall 
submit the name, title, grade, and address of the agency official 
charged with complying with the Board's order, and inform such official 
in writing of the potential sanction for noncompliance as set forth in 
5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts it has 
fully complied. The agency must advise the Board of any change to the 
identity or location of this official during the pendency of any 
compliance proceeding. In the absence of this information, the Board 
will presume that the highest ranking appropriate agency official who 
is not appointed by the President by and with the consent of the Senate 
is charged with compliance.
* * * * *
    (5) If the judge finds that the alleged noncomplying party has not 
taken all actions required to be in full compliance with the final 
decision, the judge will issue an initial decision resolving all issues 
raised in the petition for enforcement, and identifying the specific 
actions the noncomplying party must take to be in compliance with the 
Board's final decision. A copy of the initial decision will be served 
on the responsible agency official.
    (6) If an initial decision described under paragraph (a)(5) of this 
section is issued, the party found to be in noncompliance must do the 
following:
    (i) To the extent that the party decides to take the actions 
required by the initial decision, the party must submit to the Clerk of 
the Board, within the time limit for filing a petition for review under 
section 1201.114(e) of this part, a statement that the party has taken 
the actions identified in the initial decision, along with evidence 
establishing that the party has taken those actions. The narrative 
statement must explain in detail why the evidence of compliance 
satisfies the requirements set forth in the initial decision.
    (ii) To the extent that the party decides not to take all of the 
actions required by the initial decision, the party must file a 
petition for review under the provisions of sections 1201.114 and 
1201.115 of this part.
    (iii) The responses required by the preceding two paragraphs may be 
filed separately or as a single pleading.
    If the agency is the party found to be in noncompliance, it must 
advise the Board, as part of any submission under this paragraph, of 
any change in the identity or location of the official responsible for 
compliance previously provided pursuant to paragraph (a)(2).
    (7) The petitioner may file evidence and argument in response to 
any submission described in paragraph (a)(6) by filing opposing 
evidence and argument with the Clerk of the Board within 20 days of the 
date such submission is filed.
    (b) Consideration by the Board. (1) Following review of the initial 
decision and the written submissions of the parties, the Board will 
render a final decision on the issues of compliance. Upon finding that 
the agency is in noncompliance, the Board may, when appropriate, 
require the agency and the responsible agency official to appear before 
the Board to show why sanctions should not be imposed under 5 U.S.C. 
1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and 
the responsible agency official to make this showing in writing, or to 
make it both personally and in writing. The responsible agency official 
has the right to respond in writing or to appear at any argument 
concerning the withholding of that official's pay.
    (2) The Board's final decision on the issues of compliance is 
subject to judicial review under Sec.  1201.120 of this part.
    (3) * * *

[[Page 33681]]

    (c) Burdens of proof. If an appellant files a petition for 
enforcement seeking compliance with a Board order, the agency generally 
has the burden to prove its compliance with the Board order by a 
preponderance of the evidence. However, if any party files a petition 
for enforcement seeking compliance with the terms of a settlement 
agreement, that party has the burden of proving the other party's 
breach of the settlement agreement by a preponderance of the evidence.
    (d) Redesignate paragraph (c) as paragraph (d).
    (e) Redesignate paragraph (d) as paragraph (e).
    51. Revise the heading of Subpart H of part 1201 to read as 
follows:

Subpart H--Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable), and Damages (Consequential, 
Liquidated, and Compensatory)

    52. In Sec.  1201.201 revise paragraph (a) and add a new paragraph 
(e) as follows:


Sec.  1201.201  Statement of purpose.

    (a) This subpart governs Board proceedings for awards of attorney 
fees (plus costs, expert witness fees, and litigation expenses, where 
applicable), consequential damages, compensatory damages, and 
liquidated damages.
* * * * *
    (e) An award equal to back pay shall be awarded as liquidated 
damages under 5 U.S.C. 3330c when the Board or a court determines an 
agency willfully violated an individual's veterans' preference rights.
    53. In Sec.  1201.202 insert a new paragraph (d) and redesignate 
existing paragraph (d) as paragraph (e).


Sec.  1201.202  Authority for awards.

* * * * *
    (d) Awards of liquidated damages. The Board may award an amount 
equal to back pay as liquidated damages under 5 U.S.C. 3330c when it 
determines that an agency willfully violated an appellant's veterans' 
preference rights.
    (e) Redesignate paragraph (d) as paragraph (e)


Sec.  1201.204  [Amended]

    54. In Sec.  1201.204 remove the words ``consequential damages or 
compensatory damages'' and add, in their place, the words 
``consequential, liquidated, or compensatory damages.''
    55. Amend Sec.  1201.204 by revising paragraph (h) to read as 
follows:


Sec.  1201.204  Proceedings for consequential, liquidated, and 
compensatory damages.

* * * * *
    (h) Request for damages first made in proceeding before the Board. 
Where a request for consequential, liquidated, or compensatory damages 
is first made on petition for review of a judge's initial decision on 
the merits and the Board waives the time limit for making the request 
in accordance with paragraph (a)(2) of this section, or where the 
request is made in a case where the only MSPB proceeding is before the 
Board, including, for compensatory damages only, a request to review an 
arbitration decision under 5 U.S.C. 7121(d), the Board may:
    (1) * * *
* * * * *
    56. Remove and reserve Appendix III to Part 1201.

Appendix III to Part 1201 [Reserved]

PART 1203--PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE 
OFFICE OF PERSONNEL MANAGEMENT

    57. The authority citation for 5 CFR part 1203 continues to read as 
follows:

    Authority: 5 U.S.C. 1204(A), 1204(f), and 1204(h).

    58. In Sec.  1203.2 revise paragraph (e) to read as follows:


Sec.  1203.2  Definitions.

* * * * *
    (e) Prohibited personnel practices are the impermissible actions 
described in 5 U.S.C. 2302(b)(1) through 2302(b)(12).
* * * * *

PART 1208--PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED 
SERVISES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS 
EMPLOYMENT OPPORTUNITIES ACT

    59. The authority citation for 5 CFR part 1208 continues to read as 
follows:

    Authority:  5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.

    60. Revise Sec.  1208.3 to read as follows:


Sec.  1208.3  Application of 5 CFR part 1201.

    Except as expressly provided in this part, the Board will apply 
subparts A (Jurisdiction and Definitions), B (Procedures for Appellate 
Cases), C (Petitions for Review of Initial Decisions), and F 
(Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to 
appeals governed by this part. The Board will apply the provisions of 
subpart H (Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable), and Damages (Consequential, 
Liquidated, and Compensatory)) of 5 CFR part 1201 regarding awards of 
attorney fees and liquidated damages to appeals governed by this part.
    61. Revise Sec.  1208.21 to read as follows:


Sec.  1208.21  VEOA exhaustion requirement.

    (a) General rule. Before an appellant may file a VEOA appeal with 
the Board, the appellant must first file a complaint under 5 U.S.C. 
3330a(a) with the Secretary of Labor within 60 days after the date of 
the alleged violation. In addition, either the Secretary must have sent 
the appellant written notification that efforts to resolve the 
complaint were unsuccessful or, if the Secretary has not issued such 
notification and at least 60 days have elapsed from the date the 
complaint is filed, the appellant must have provided written 
notification to the Secretary of the appellant's intention to file an 
appeal with the Board.
    (b) Equitable tolling; extension of filing deadline. In 
extraordinary circumstances, the appellant's 60-day deadline for filing 
a complaint with the Secretary is subject to the doctrine of equitable 
tolling, which permits the Board to extend the deadline where the 
appellant, despite having diligently pursued his or her rights, was 
unable to make a timely filing. Examples include cases involving 
deception or in which the appellant filed a defective pleading during 
the statutory period.
    62. Amend Sec.  1208.22 by adding a new paragraph (c) as follows:


Sec.  1208.22  Time of filing.

* * * * *
    (c) Equitable tolling; extension of filing deadline. In 
extraordinary circumstances, the appellant's 60-day deadline for filing 
an appeal with the MSPB is subject to the doctrine of equitable 
tolling, which permits the Board to extend the deadline where the 
appellant, despite having diligently pursued his or her rights, was 
unable to make a timely filing. Examples include cases involving 
deception or in which the appellant filed a defective pleading during 
the statutory period.
    63. In Sec.  1208.23 revise subparagraph (a)(5) and redesignate 
paragraph (a)(5) as paragraph (a)(6) as follows:


Sec.  1208.23  Content of a VEOA appeal; request for hearing.

    (a) * * *
    (1) * * *
* * * * *
    (5) Evidence identifying the specific veterans' preference claims 
that the appellant raised before the Secretary; and

[[Page 33682]]

    (6) Redesignate paragraph (a)(5) as paragraph (a)(6).
* * * * *

PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS 
OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING

    64. The authority citation for 5 CFR part 1208 continues to read as 
follows:

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

    65. Revise paragraph of Sec.  1209.2 to read as follows:


Sec.  1209.2  Jurisdiction.

    (a) Under 5 U.S.C. 1221(a), an employee, former employee, or 
applicant for employment may appeal to the Board from agency personnel 
actions alleged to have been threatened, proposed, taken, or not taken 
because of the appellant's whistleblowing activities.
    (b) The Board exercises jurisdiction over:
    (1) Individual right of action (IRA) appeals. These are authorized 
by 5 U.S.C. 1221(a) with respect to personnel actions listed in 
1209.4(a) of this part that are allegedly threatened, proposed, taken, 
or not taken because of the appellant's whistleblowing activities. If 
the action is not otherwise directly appealable to the Board, the 
appellant must seek corrective action from the Special Counsel before 
appealing to the Board.

    Example 1: Agency A gives Mr. X a performance evaluation under 5 
U.S.C. chapter 43 that rates him as ``minimally satisfactory.'' Mr. 
X believes that the agency has rated him ``minimally satisfactory'' 
because he reported that his supervisor embezzled public funds in 
violation of federal law and regulation. Because a performance 
evaluation is not an otherwise appealable action, Mr. X must seek 
corrective action from the Special Counsel before appealing to the 
Board or before seeking a stay of the evaluation. If Mr. X appeals 
the evaluation to the Board after the Special Counsel proceeding is 
terminated or exhausted, his appeal is an IRA appeal.
    Example 2: As above, Agency A gives Mr. X a performance 
evaluation under 5 U.S.C. chapter 43 that rates him as ``minimally 
satisfactory.'' Mr. X believes that the agency has rated him 
``minimally satisfactory'' because he previously filed a Board 
appeal of the agency's action suspending him without pay for 15 
days, and because he testified on behalf of a co-worker in an EEO 
proceeding. The Board would not have jurisdiction over the 
performance evaluation as an IRA appeal because the appellant has 
not made an allegation of a violation of 5 U.S.C. 2302(b)(8), i.e., 
a claim of retaliation for a protected whistleblowing disclosure. 
Retaliation for filing a Board appeal would constitute a different 
prohibited personnel practice, 5 U.S.C. 2302(b)(9), retaliation for 
having exercised an appeal, complaint, or grievance right granted by 
any law, rule, or regulation. Similarly, retaliation for protected 
EEO activity is a prohibited personnel practice under subsection 
(b)(9), not under subsection (b)(8).
    Example 3: Citing alleged misconduct, an agency proposes 
Employee Y's removal. While that removal action is pending, Y files 
a complaint with OSC alleging that the proposed removal was 
initiated in retaliation for her having disclosed that an agency 
official embezzled public funds in violation of federal law and 
regulation. OSC subsequently issues a letter notifying Y that it has 
terminated its investigation of the alleged retaliation with respect 
to the proposed removal. Employee Y may file an IRA appeal with 
respect to the proposed removal.

    (2) Otherwise appealable action appeals. These are appeals to the 
Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) 
that include an allegation that the action was based on the appellant's 
whistleblowing activities. (Examples of such otherwise appealable 
actions are listed in 5 CFR 1201.3(a).) An individual who has been 
subjected to an otherwise appealable action must make an election of 
remedies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of 
this section.

    Example 4: Same as Example 3 above. While the OSC complaint with 
respect to the proposed removal is pending, the agency effects the 
removal action. OSC subsequently issues a letter notifying Y that it 
has terminated its investigation of the alleged retaliation with 
respect to the proposed removal. With respect to the effected 
removal, Employee Y can elect to appeal that action directly to the 
Board, or to proceed with a complaint to OSC. If she chooses the 
latter option, she may file an IRA appeal when OSC has terminated 
its investigation, but the only issue that will be adjudicated in 
that appeal is whether she proves that her protected disclosure was 
a contributing factor in the removal action and, if so, whether the 
agency can prove by clear and convincing evidence that it would have 
removed Y in the absence of the protected disclosure. If she instead 
files a direct appeal, the agency must prove its misconduct charges, 
nexus, and the reasonableness of the penalty, and Y can raise any 
affirmative defenses she might have.

    (3) * * *
    (c) Issues before the Board in IRA appeals. In an individual right 
of action appeal, the only merits issues before the Board are those 
listed in 5 U.S.C. 1221(e), i.e., whether the appellant has 
demonstrated that one or more whistleblowing disclosures was a 
contributing factor in one or more covered personnel actions and, if 
so, whether the agency has demonstrated by clear and convincing 
evidence that it would have taken the same personnel action(s) in the 
absence of the protected disclosure(s). The appellant may not raise 
affirmative defenses other than reprisal for whistleblowing activities, 
such as claims of discrimination or harmful procedural error. In an IRA 
appeal that concerns an adverse action under 5 U.S.C. 7512, the agency 
need not prove its charges, nexus, or the reasonableness of the 
penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action 
is taken ``only for such cause as will promote the efficiency of the 
service.'' However, the Board may consider the strength of the agency's 
evidence in support of its adverse action in determining whether the 
agency has demonstrated by clear and convincing evidence that it would 
have taken the same personnel action in the absence of the protected 
disclosure(s).
    (d) Elections under 5 U.S.C. 7121(g). (1) Under 5 U.S.C. 
7121(g)(3), an employee who believes he or she was subjected to a 
covered personnel action in retaliation for protected whistleblowing 
``may elect not more than one'' of 3 remedies: (A) an appeal to the 
Board under 5 U.S.C. 7701; (B) a negotiated grievance under 5 U.S.C. 
7121(d); or (C) corrective action under subchapters II and III of 5 
U.S.C. chapter 12, i.e., a complaint filed with the special counsel (5 
U.S.C. 1214), which can be followed by an IRA appeal filed with the 
Board (5 U.S.C. 1221). Under 5 U.S.C. 7121(g)(4), an election is deemed 
to have been made based on which of the 3 actions the individual files 
first.
    (2) In the case of an otherwise appealable action as described in 
paragraph (b)(2) of this section, an employee who files a complaint 
with OSC prior to filing an appeal with the Board has elected 
corrective action under subchapters II and III of 5 U.S.C. chapter 12, 
i.e., a complaint filed with OSC, which can be followed by an IRA 
appeal with the Board. As described in paragraph (c) of this section, 
the IRA appeal in such a case is limited to resolving the claim(s) of 
reprisal for whistleblowing activities.
    66. In Sec.  1209.4 revise paragraph (b) as follows:


Sec.  1209.4  Definitions.

* * * * *
    (b) Whistleblowing is the making of a protected disclosure, that 
is, a disclosure of information by an employee, former employee, or 
applicant that the individual reasonably believes evidences a violation 
of law, rule, or regulation, gross

[[Page 33683]]

mismanagement, gross waste of funds, abuse of authority, or substantial 
and specific danger to public health or safety. It does not include a 
disclosure that is specifically prohibited by law or required by 
Executive order to be kept secret in the interest of national defense 
or foreign affairs, unless such information is disclosed to the Special 
Counsel, the Inspector General of an agency, or an employee designated 
by the head of the agency to receive it.
* * * * *
    67. In Sec.  1209.5 revise paragraphs (a) and (b) as follows:


Sec.  1209.5  Time of filing.

    (a) General rule. The appellant must seek corrective action from 
the Special Counsel before appealing to the Board unless the action 
being appealed is otherwise appealable directly to the Board and the 
appellant has elected a direct appeal. (See Sec.  1209.2(d) regarding 
election of remedies under 5 U.S.C. 7121(g)). Where the appellant has 
sought corrective action, the time limit for filing an appeal with the 
Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal 
must be filed:
    (1) No later than 65 days after the date of issuance of the Special 
Counsel's written notification to the appellant that it was terminating 
its investigation of the appellant's allegations or, if the appellant 
shows that the Special Counsel's notification was received more than 5 
days after the date of issuance, within 60 days after the date the 
appellant received the Special Counsel's notification; or
    (2) At any time after the expiration of 120 days, if the Special 
Counsel has not notified the appellant that it will seek corrective 
action on the appellant's behalf within 120 days of the date of filing 
of the request for corrective action.
    (b) Equitable tolling; extension of filing deadline. The 
appellant's deadline for filing an individual right of action appeal 
with the Board after receiving written notification from the Special 
Counsel that it was terminating its investigation of his or her 
allegations is subject to the doctrine of equitable tolling, which 
permits the Board to extend the deadline where the appellant, despite 
having diligently pursued his or her rights, was unable to make a 
timely filing. Examples include cases involving deception or in which 
the appellant filed a defective pleading during the statutory period.
    (c) * * *
    68. In Sec.  1209.6 revise paragraph (b) to read as follows:


Sec.  1209.6  Content of appeal; right to hearing.

* * * * *
    (b) Right to hearing. An appellant generally has a right to a 
hearing if the appeal has been timely filed and the Board has 
jurisdiction over the appeal.
* * * * *

William D. Spencer,
Clerk of the Board.
[FR Doc. 2012-13655 Filed 6-6-12; 8:45 am]
BILLING CODE 7400-01-P