[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Rules and Regulations]
[Pages 62350-62375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24130]
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Vol. 77
Friday,
No. 198
October 12, 2012
Part III
Merit Systems Protection Board
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5 CFR Parts 1200, 1201, 1203, et al.
Practices and Procedures; Final Rule
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 /
Rules and Regulations
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Parts 1200, 1201, 1203, 1208, and 1209
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board),
following an internal review of MSPB regulations, publication of a
proposed rule, and consideration of comments received in response to
the proposed rule, hereby amends its rules of practice and procedure in
order to improve and update the MSPB's adjudicatory processes.
DATES: Effective November 13, 2012.
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: [email protected].
SUPPLEMENTARY INFORMATION: On June 7, 2012, the Merit Systems
Protection Board (MSPB or Board) proposed numerous amendments to its
regulations. 77 FR 33663. In response to publication of this proposed
rule, the MSPB received 105 pages of comments from 25 commenters. The
comments received by the MSPB are available for review by the public at
www.mspb.gov/regulatoryreview/index.htm.
Comments and Summary of Changes to the Proposed Rule
Set forth below is a short summary of the changes proposed by the
MSPB, a discussion of the comments addressing the proposed rule, and a
summary of the changes the MSPB is making to the proposed rule. Readers
desiring a more detailed summary of the amendments proposed by the MSPB
should consult the proposed rule at 77 FR 33663.
This Final Rule will become effective 30 days after publication in
the Federal Register. The MSPB is aware that changes to its
adjudicatory procedures may pose special problems in cases that are
pending on the date this Final Rule takes effect. In any such case,
judges have authority under 1201.12 to waive a regulation for good
cause, except where a statute requires application of the regulation.
Section 1200.4 Petition for Rulemaking
The MSPB proposed adding this new regulation to set forth
procedures for filing petitions for rulemaking under 5 U.S.C. 553(e).
Numerous commenters objected to this proposed regulation on the grounds
that the MSPB should always employ notice and comment rulemaking due to
its unique mission as an adjudicative body and the regulation could be
read as authorizing the MSPB to publish a direct final rule not
authorized under the Administrative Procedure Act (APA). However, the
APA does not require notice and comment in all instances of agency
rulemaking. 5 U.S.C. 553(b). While the MSPB does have a unique mission,
publication of a direct final rule remains an important tool to quickly
implement minor technical amendments. However, in an effort to address
the concerns raised by these commenters, the MSPB has added a
requirement to the regulation that final rules will be issued
``consistent with the Administrative Procedure Act.''
A commenter suggested that the MSPB, either by regulation or
practice, should post petitions for rulemaking and responses thereto on
the MSPB's Web site. The MSPB agrees that this proposal has merit and
will undertake in the future to post such information on its Web site.
A commenter suggested that the regulation include advice concerning a
petitioner's right to judicial review. The MSPB has chosen not to amend
the regulation as requested. Finally, a commenter suggested that the
MSPB include a procedure for seeking reconsideration of a denial of a
petition for rulemaking. The regulation presently gives each petitioner
a full opportunity to present his or her petition to the Board. No
further procedures for reconsideration will be included in the final
rule.
Section 1201.3 Appellate Jurisdiction
The amendments proposed by the MSPB explained that this regulation
is not a source of MSPB jurisdiction and that jurisdiction depends on
the nature of the employment or position held by the employee as well
as the nature of the action taken. The proposed regulation also revised
the listing of appealable actions within the MSPB's appellate
jurisdiction.
A commenter suggested several editorial changes to paragraph (a)
and, in response, the MSPB has amended this regulation. A commenter
pointed out that the MSPB has jurisdiction over ``suitability
actions,'' not ``suitability determinations.'' The MSPB has amended the
proposed regulation to address this comment.
A commenter recommended that the regulation should be amended to
include more specific information concerning what constitutes a
suitability determination and how a suitability determination is made.
In response, the MSPB has included changes to paragraph (a)(9).
A commenter suggested that the statement in paragraph (a)(3) of the
proposed rule that appeals of probationary terminations ``are not
generally available to employees in the excepted service'' is
insufficient for pro se appellants. The commenter further suggested
that the regulation should be revised to clearly identify when an
excepted service employee has the right to appeal such an action by
listing any exceptions to the general rule. In response, the MSPB notes
that one such exception to the general rule exists for Veterans
Readjustment Act appointments. While appointments under this authority
are excepted service appointments, because they are positions that
would otherwise be in the competitive service, many competitive service
rules apply to them, including those at 5 CFR part 315, subpart H. See
McCrary v. Department of the Army, 103 M.S.P.R. 266, ] 11 (2006); 5 CFR
307.103-.104. The MSPB therefore believes the use of the term
``generally'' is justified. In addition, given the possibility that the
MSPB might overlook an exception that ought to be included in such a
list or that the list could become outdated at some future point, the
MSPB is satisfied that the use of the term ``generally'' is
appropriate. Finally, MSPB administrative judges are required to
identify jurisdictional elements to the parties after an appeal is
filed and, therefore, there is no need to amend this regulation as
requested.
The MSPB has also made several minor changes in the proposed rule.
First, in paragraph (a)(10), we changed the citation to authority for
this grant of jurisdiction. There is no longer any Subpart E to 5 CFR
Part 752. The correct sources of jurisdiction are 5 U.S.C. 7543(d) and
5 CFR 752.605. Second, in paragraph (a)(11), we pluralized ``right'' in
the first grant of jurisdiction and broke out the particular grants of
jurisdiction into separate paragraphs (a)(11)(i) through (a)(11)(vii).
Section 1201.4 General Definitions
The MSPB proposed revising subsection (a) to eliminate the phrase
``attorney-examiner'' and revising subsection (j) due to a concern that
the term ``date of service'' was unclear.
In response to a concern expressed by a commenter that the term
``grievance'' should be defined, the MSPB has added a new paragraph (o)
defining a ``grievance'' as ``[a] complaint by an employee or labor
organization under a negotiated grievance procedure covered
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by 5 U.S.C. 7121.'' While this definition was not included in this
regulation in the proposed rule, the MSPB believes it is appropriate to
include this new material here because the MSPB did propose to amend
1201.153 to substitute the term ``under a negotiated grievance
procedure'' for the word ``grievance.'' The new definition of
``grievance'' is intended simply to recognize the need to clarify the
meaning of the term ``grievance'' throughout the MSPB's regulations.
A commenter objected to the current definition of ``date of
service'' in paragraph (j) as circular and suggested that it should
take the form of a narrative definition without reference to ``date of
filing.'' The MSPB rejects this suggestion as the date of service and
date of filing are intended to be identical.
A commenter suggested that the MSPB delete ``calendar'' as a
description of days in paragraph (j) because days is already a defined
term in paragraph (h). The final rule adopts this suggestion.
Several commenters suggested that language authorizing that 5 extra
days will be provided when a pleading is filed by mail should be moved
to 1201.23 or that a reference to 1201.23 should be added to the
proposed language in paragraph (j). A commenter also suggested that the
MSPB amend the language of paragraph (j). In response to these
suggestions, the MSPB has amended the language of paragraph (j) and
moved the language providing 5 extra days when a pleading is filed by
mail to 1201.23.
A commenter expressed a concern that the MSPB's definition of
``date of service'' is flawed because it fails to recognize that
irradiation of mail delays receipt of mail by Federal agencies. The
MSPB is aware that when an appellant files via regular mail, and the
agency representative is located in Washington, DC, the pleading will
go to an irradiation center and it may take more than 5 days for the
agency to receive it. While this is a valid concern, the MSPB does not
think it justified a special provision in the regulations. If
irradiation has caused a significant delay that adversely impacts an
agency's opportunity to submit a responsive pleading, the agency can
ask for additional time or seek to excuse a late response, and there is
no reason to believe our judges will not deal with such matters
appropriately.
A commenter suggested that the MSPB amend the definition of
``judge'' in paragraph (a) to add ``any member of the Merit Systems
Protection Board'' to the listing of persons who can be a judge and
further amend the regulation to make clear that only individuals
``experienced in hearing appeals'' may hear an appeal of a removal
action. We have revised the regulation to include Members of the Board
in the definition of the word ``judge.'' The MSPB is cognizant of the
requirement in 5 U.S.C. 7701(b)(1) that a removal case shall be heard
by the Board, an employee experienced in hearing appeals, or an
administrative law judge. The MSPB ensures that cases are assigned to
experienced judges in accordance with the statutory requirement.
Section 1201.14 Electronic Filing Procedures
The MSPB proposed adding new language to reflect current MSPB
policy and procedures regarding Sensitive Security Information (SSI)
and classified information. The MSPB proposed to revise paragraph (m)
to make the regulation consistent with the intent expressed by the
Board when it originally published this provision at 73 FR 10127, 10128
(2008). Finally, additional language was added to provide that amici
are not permitted to e-file.
A commenter suggested that the MSPB should change the restriction
on SSI so that it applies only when a document has been marked by the
agency as containing SSI. The MSPB believes the current language
concerning filing of SSI and classified information is more appropriate
in so far as it contemplates additional scenarios in which a party
other than the agency submits a pleading containing information that it
knew or should have known contains SSI. A commenter objected to the
MSPB's restrictions on filing pleadings containing SSI as overly broad.
However, these restrictions are compelled by the fact that SSI and
classified information require security beyond that available in the
MSPB e-filing system. A commenter questioned the continued exclusion of
class appeal-related filings and requests to appear as amici from the
MSPB's e-appeal system. As the MSPB noted in the proposed rule, we
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 systemic change outweighed the
benefit of e-filing by amici. A commenter observed that the MSPB should
adjust its e-filing system to account for regional time differences
rather than address this issue in a regulation. While the e-filing
system of the Federal judiciary may accommodate such difference, the
MSPB remains concerned that such a change to its e-filing system risks
compromising the reliability and integrity of its filing process.
Section 1201.21 Notice of Appeal Rights
The MSPB proposed 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.
Subsection (g)(3) of 5 U.S.C. 7121 provides that an individual who has
been subjected to an otherwise appealable action and who alleges
retaliation for whistleblowing must elect one of 3 actions: (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 Individual Right of Action
appeal filed with the Board (5 U.S.C. 1221). Subsection (g)(4) provides
that an election is deemed to have been made based on which of the 3
actions the individual files first. 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.
A commenter suggested that the MSPB should define what constitutes
a grievance. In response to this comment, the MSPB has added a new
definition in a new paragraph (o) in 1201.4.
Several commenters suggested that the MSPB clarify its proposed
regulation and/or provide ``model'' language for agencies to use with
respect to the Board's requirements in paragraphs (d) and (e) relating
to elections between different forums that employees are required to
make with respect to claims of retaliation for protected whistleblowing
disclosures or claims of unlawful discrimination. The Board does not
believe that detailed model language is required, as the regulations at
5 CFR 1209.2 and 29 CFR 1614.301 and .302 provide adequate guidance.
A commenter pointed out that while the proposed regulation would
require agencies to give notice of rights under 5 U.S.C. 7121(g), it
failed to require notice of rights under 5 U.S.C. 7121(c)(1) and (d).
The MSPB believes these concerns are already addressed in paragraphs
(d) and (e) of the regulation. We revised paragraph (e) to add the
phrase ``or to grieve allegations of unlawful discrimination'' and
added
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references to 5 U.S.C. 7121(d) and 29 CFR 1614.301 to clarify the
notice that must be provided regarding discrimination claims.
A commenter urged the MSPB to make clear that an appellant may make
separate elections of remedies for a proposed decision and a final
decision. This issue is presently addressed in Example 4 in 1209.2.
Commenters also were concerned that increasing the amount of
information already included in notices was unreasonable and that the
exact parameters of the notice required may not be clear at the time an
action is taken against a probationary employee. The complexity of
notices is a product of the complexity of the law governing Federal
employees. With regard to notices given to probationary employees, when
an agency takes an action against a probationary employee, it must
inform the employee of the circumstances in which such terminations are
appealable to the Board.
The MSPB has made two other amendments to this regulation. We
revised paragraph (e) because it only referred to elections between the
MSPB and the EEOC under 29 CFR 1614.302. This paragraph now also
addresses election of the negotiated grievance process for claims of
prohibited discrimination. In response to other comments regarding this
regulation, the MSPB also added a new paragraph (f) requiring agency
decision notices to include the name or title and contact information
for the agency official to whom the Board should send the
Acknowledgment Order and copy of the appeal. This minor change will
help ensure proper service of the MSPB's Acknowledgment Order, thereby
expediting the processing of appeals.
Readers also should review the discussion of comments under 5 CFR
1209.2.
Section 1201.22 Filing an Appeal and Responses to Appeals
The MSPB proposed to revise this regulation to include a new
section stating the MSPB's general rule about constructive receipt and
included several illustrative examples.
A commenter objected to the use of the terms ``relative'' and ``of
suitable age and discretion'' as overly vague. The MSPB does not use
the word ``relative'' in this regulation. The use of the term ``persons
of suitable age and discretion'' is taken from Rules 4 and 5 of the
Federal Rules of Civil Procedure.
A commenter asked the MSPB to modify the regulation to clarify
that, in cases where the appellant and his or her representative
receive a document on different dates, the date of the representative's
receipt should control. The MSPB has elected not to make this change as
the present rule is adequate and this proposal will introduce further
complexity.
A commenter objected to the use of examples because such examples
might be read as determinative in circumstances where they might be
misleading. The MSPB disagrees and views these examples as an effective
means to explain the rule to pro se litigants. However, the MSPB will
note in the examples that the cited circumstances in each example
``may'' establish the contested issue.
A commenter proposed that the MSPB require an agency to provide
contact information for the agency official designated to receive
notice of a change in an appellant's address. The MSPB has added a new
paragraph (f) in 1201.21 that will require the agency to supply contact
information for a responsible agency official in all decision notices.
Section 1201.23 Computation of Time
The MSPB proposed to amend 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.
A commenter requested the MSPB to incorporate constructive receipt
language from 1201.22 in this regulation. The MSPB will not implement
this suggestion because 1201.23 concerns solely with how time is
computed, not when receipt is effective. A commenter recommended a
change in wording to shorten the description of the 5 extra days
provided when a pleading is filed by mail. The commenter also
recommended moving this language from 1201.4 to 1201.23. The MSPB
agrees with these suggestions. The final rule contains a modified
version of this commenter's suggested language. The MSPB deleted the
word ``calendar'' as a description of days because it is already a
defined term in paragraph (h) of 1201.4.
Section 1201.24 Content of an Appeal; Right to Hearing
The MSPB proposed to change the scope of requested attachments to
an initial appeal from ``any relevant documents'' to a request for the
proposal notice, decision notice, and for the SF-50 if available. The
MSPB also proposed to amend the definition of ``right to hearing'' in
paragraph (d) to state 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.''
A commenter objected to the limitations on the amount of material
an appellant may submit with an appeal on the grounds that this change
will increase the time it takes an agency to assess the case and
provide an appropriate response. While the proposed amendment might
limit the initial receipt of relevant material in some cases, in many
others it will serve to curtail the submission of extraneous material,
while ensuring that the MSPB receives information necessary to identify
the nature of an appellant's claims.
A commenter agreed that evidence on jurisdiction should be filed in
response to Board orders but only if the Board would hold in abeyance
the agency's narrative response to the appeal until the question of
jurisdiction is resolved. The MSPB will not make any changes in
response to this suggestion since this issue can be addressed on a
case-by-case basis in acknowledgment of other orders issued by an
administrative judge.
A commenter objected to the proposed amendment on the grounds that
it disadvantages appellants and precludes the appellant from submitting
additional information that may be relevant. The MSPB disagrees with
this comment because the amendment to this regulation concerns only the
timing of submissions by an appellant and does not ultimately limit the
scope of what an appellant may submit.
A commenter suggested that in subparagraph (a)(7), the MSPB should
require that appellants in Veterans Employment Opportunities Act (VEOA)
and Individual Right of Action (IRA) cases submit relevant documents,
as these documents are almost always exclusively in the appellant's
possession. The MSPB believes that under current practice
jurisdictional and show-cause orders adequately address requirements
for appellants to show exhaustion in VEOA and IRA appeals.
A commenter suggested that the MSPB should develop a mechanism for
summary judgment and amend paragraph (d) to add information concerning
an appellant's right to a hearing where summary judgment is granted.
The Court of Appeals for the Federal Circuit has found that the MSPB
lacks authority to order summary judgment. Crispin v. Department of
Commerce, 732 F.2d 919, 924 (Fed. Cir. 1984). Therefore, we cannot make
the suggested changes.
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A commenter objected to the word ``generally'' in paragraph (d)
since 5 U.S.C. 7701 includes a right to a hearing. The MSPB has removed
the reference to 5 U.S.C. 7701 from this regulation because there are
other appeals that lack a right to a hearing.
Section 1201.28 Case Suspension Procedures
The MSPB proposed to overhaul its case suspension procedures to
allow for more than a single 30-day suspension period, eliminate
current restrictions on when a request must be filed, and remove
separate paragraphs for unilateral requests and joint requests.
A commenter suggested that the MSPB should grant its administrative
judges the power to initially suspend case processing for up to 60 days
instead of 30 in order to facilitate settlement. The MSPB believes that
further expansion of the initial suspension period to 60 days is
unwarranted because the proposed rule ultimately allows for suspension
up to 60 days and allowing an initial suspension period of 60 days
could negatively affect the time it takes to issue a decision in an
initial appeal. However, in light of this comment, and another comment
seeking to amend the regulation to suspend a case referred to the
MSPB's Mediation Appeals Program (MAP), the MSPB has added a new
paragraph (d) suspending the processing of an appeal that is accepted
into MAP. This amendment reflects the MSPB's current practice.
Several commenters suggested that suspension sought jointly by the
parties should be granted automatically. The MSPB disagrees and
believes that its judges need to retain control of case processing and
will exercise suitable discretion in acting upon jointly filed
suspension requests.
A commenter asked the MSPB to consider amending the regulation to
specify that adjudication of a motion to compel discovery does not
require termination of the suspension period. The regulation states
that a judge may terminate the suspension period when the parties
request the judge's assistance and the judge's involvement is likely to
be extensive but does not require termination. We believe that leaving
such matters to the judge's discretion preserves the maximum
flexibility for efficient and effective case processing.
Section 1201.29 Dismissal Without Prejudice
The MSPB proposed adding this new regulation that codified existing
case law on the subject of dismissals without prejudice.
A commenter suggested that there was a typographical error in
paragraph (a) and that the correct reference should be to 1201.22, not
1201.12. The reference to 1201.12 was intentional because we wanted to
allow for certain exceptions where the Board's reviewing court has held
that the MSPB should not specify a date certain for refiling. The MSPB
has modified paragraph (c) to specify the exception.
A commenter suggested that the MSPB should rewrite paragraph (c) to
provide that a waiver of a late refiling will be granted where an
appellant establishes good cause for the untimely filing. The MSPB
believes that requiring judges to liberally construe such requests is
more appropriate. See 5 CFR 1201.29(d).
A commenter suggested that the MSPB revise the regulation to
require that a judge notify the parties and give them an opportunity to
object before dismissing an appeal without prejudice. While the MSPB
agrees with this suggestion in principle, we remain convinced that the
current provision must be retained in order to allow a judge to dismiss
a case without prejudice sua sponte in exceptional circumstances, such
as when a hurricane closes a regional office for an extended period.
A commenter recommended allowing the judge to set the refiling
deadline based on an applicable triggering event instead of a date
certain. Board case law does not allow judges to set the refiling date
based solely on a subsequent triggering event, without also providing
an alternate date certain.
A commenter recommended requiring that judges set a refiling date
within 6 months of the order dismissing the appeal and that the MSPB
mandate that an appeal may not be dismissed without prejudice for more
than two 6-month periods. Administrative judges are in the best
position to set a refiling date. Based upon experience, the MSPB
believes that a 12-month period may not be sufficient in all
circumstances.
A commenter expressed a preference for the automatic refiling of
all cases dismissed without prejudice, especially retirement cases.
Automatic refiling is not practical in all cases. In many cases,
refiling is neither necessary nor desired because the matter has been
fully resolved. For example, when an adverse action has been dismissed
without prejudice so that the appellant can pursue an application for
disability retirement, if the application is granted, no further action
is required.
A party suggested that the proposed regulation should be revised
and reorganized. In response, we have made non-substantive revisions to
the organization and language of the regulation.
Section 1201.31 Representatives
The MSPB proposed to add the phrase ``or after 15 days after a
party becomes aware of the conduct'' 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 to a party wishing to challenge
the designation of a representative. The MSPB also proposed to move
provisions governing exclusion and other sanctions for contumacious
behavior by parties and representatives to 5 CFR 1201.43. Readers are
advised to review comments under 1201.43.
A commenter suggested that the MSPB should offer appellants the
option to obtain an interlocutory appeal of a disqualification of his
or her representative. One reason for the change from the current
regulation is the practical consideration that allowing an automatic
interlocutory appeal, as the current regulation does, would
unnecessarily delay the processing of the appeal. Another is that the
revised regulation does not prohibit a request for an interlocutory
appeal in these circumstances; it simply does not provide for the
automatic certification of an interlocutory appeal that does not meet
the requirements of section 1201.92(b), including that the matter in
question ``involves an important issue of law or policy about which
there is substantial ground for difference of opinion.'' A party
affected by the exclusion of a representative who believes that an
interlocutory appeal would meet the requirements of 1201.92 remains
free to seek one.
Section 1201.33 Federal Witnesses
The MSPB proposed adding language to clarify that an agency's
responsibility under this regulation includes producing witnesses at
depositions as well as at hearings.
A commenter observed that ``to appear at a deposition'' appears in
the first sentence of (a), but not in the second sentence. This issue
has been addressed in the final rule.
Several commenters asked the MSPB to amend the regulation to
clarify that the employing agency is responsible for pay and benefit
costs resulting from the production of witnesses not employed by the
responding agency. Other commenters objected that the proposed
amendment appears to make party agencies responsible for ensuring the
appearance of individuals employed by nonparty agencies. The proposed
regulation is not intended to apportion
[[Page 62354]]
these costs, which are for the involved agencies to resolve. However,
we have revised the regulation to indicate that the Board and the
parties will implement this provision, to the maximum extent possible,
to avoid conflict with other regulations such as those issued pursuant
to United States, ex rel. v. Touhy, 340 U.S. 462, 467 (1951) regarding
the production of evidence from Federal employees in matters in
litigation.
A commenter recommended adding a provision requiring that the
nonparty agency be served with any order requiring testimony of one of
its employees. This commenter further suggested that the nonparty
agency be given an opportunity to object or seek modification of such
an order before it becomes effective. The Board is disinclined at this
time to formalize such a process in this regulation in order to
minimize the risk of collateral litigation. However, administrative
judges currently have the authority to resolve any such objections.
A party recommended that the MSPB eliminate the possibility of an
adverse inference against a respondent agency with respect to non-
appearance of any employee not under its control. Under the MSPB's
regulations, when a party fails to comply with an order, the judge may
draw an inference in favor of the requesting party with regard to the
information sought. The existing regulation does not provide for such a
sanction against a party when a nonparty violates an MSPB order.
A commenter suggested that the MSPB amend the regulation to
``permit a witness, who is a nonparty Federal employee, to provide
telephonic or video testimony at the hearing upon the agency's
request.'' Such a request may be submitted to the judge, but the MSPB
cannot tie the judge's hands with a blanket rule that gives the agency
power to decide whether a witness will testify in-person or by video or
telephone.
A commenter suggested that the MSPB should amend this regulation to
require agencies to pay for travel to depositions and that depositions
should be taken in the local commuting area where the witness resides,
if possible, or where there are videoconferencing capabilities. The
parties to an MSPB appeal are free to make such arrangements to control
costs and present the issue to the judge when the parties cannot agree
on such cost control measures.
A party suggested that the MSPB review and clarify its regulations
regarding third party discovery. The MSPB is willing to consider any
specific suggestions to improve its regulations and procedures in this
area and invites any interested party to submit a petition for
rulemaking addressing this area of MSPB practice and procedure.
Section 1201.34 Intervenors and Amicus Curiae
The MSPB proposed to amend this regulation to address the fact that
it receives motions to file amicus briefs for the first time on
petition for review and provide further explanation as to what an
amicus is permitted to do. The proposed amendment also included general
guidelines indicating when requests to file amicus briefs will be
granted or denied.
A commenter generally approved of the proposed amendments but
suggested that the MSPB should reference its recent practice of
soliciting amicus briefs through Federal Register notices if it intends
to continue using this practice. The MSPB has revised the final
regulation to include a provision stating that the MSPB may solicit
amicus briefs on its own motion.
A commenter suggested that the MSPB should include a provision
stating that, when the Board solicits amicus briefs on its own
initiative, the Board will serve the amicus briefs on the parties. The
MSPB currently serves the amicus briefs on the parties and sees no need
to include this level of detail in the regulation.
A commenter suggested that the MSPB add to the regulation a
provision stating that an amicus curiae is not entitled to receive
service of any pleadings or submit replies to briefs filed by the
parties. As currently drafted, subparagraph (e)(5) of the regulation
states that amici are not parties and may not participate in hearings
but does not explicitly say that amici should not be served with copies
of pleadings. However, the MSPB will not make the suggested change as
the draft regulation makes clear that amici are not parties and, as
such, plainly implies that they need not be served with copies of
pleadings.
A party recommended that the MSPB should require that requests for
participation as an amicus be served on the parties, assuming the
identity of the parties is known to the amicus. This issue was not
addressed in the MSPB's proposed rule. However, the MSPB is willing to
consider any specific suggestions to improve its regulations and
procedures in this area and invites any interested party to submit a
petition for rulemaking addressing this area of MSPB practice and
procedure.
Section 1201.36 Consolidating and Joining Appeals
The MSPB proposed to substitute ``removal'' for ``dismissal'' as
the latter is not a term used by the Board to describe an employee's
separation from employment for disciplinary reasons. The MSPB received
no comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1201.41 Judges
The MSPB proposed to amend this regulation to reflect the language
used in the MSPB Strategic Plan. The MSPB received no negative comments
concerning its proposed changes to this regulation and is adopting the
proposed rule as final.
Section 1201.42 Disqualifying a Judge
The MSPB proposed to amend this regulation to reflect the fact that
under current MSPB practice a judge who considers himself or herself
disqualified notifies the Regional Director, not the Board. The MSPB
received no comments concerning its proposed changes to this regulation
and is adopting the proposed rule as final.
Section 1201.43 Sanctions
The MSPB proposed moving its regulation regarding exclusion of
parties and representatives for contumacious behavior from 5 CFR
1201.31 to this regulation. The MSPB further proposed to provide judges
with explicit authority to suspend or terminate a hearing already
underway and to delete the requirement of a show cause order,
substituting instead a requirement that judges provide adequate prior
warning before imposing a sanction and document the reasons for any
such sanction. The MSPB proposed to eliminate the provision for an
interlocutory appeal of a sanction for contumacious behavior and allow
a judge to limit participation by a representative without excluding
the representative from the case entirely. Finally, the proposed rule
deleted the term ``appellant's representative'' and instead substitutes
the term ``party's representative.''
A commenter observed that it was unclear whether the MSPB was
expanding a judge's authority for sanctioning contumacious behavior to
include witnesses or other persons rather than just parties or
representatives. MSPB judges had authority to exclude persons other
than parties from participation in a proceeding prior to publication of
the proposed rule under 1201.31(d), and the
[[Page 62355]]
proposed rule continues to include this authority.
A commenter suggested that the MSPB amend the regulation to state
that, when the judge excludes a party's representative, the judge will
give the party a reasonable time to obtain another representative. The
proposed and final rules include this provision in paragraph (d).
A commenter suggested that the MSPB revise the first sentence of
this regulation to state that the Board or a judge may impose sanctions
``for good cause shown, and as necessary to serve the ends of
justice.'' The MSPB will not amend the regulation as suggested because
the definition of ``judge'' now expressly includes the Board and the
addition of the phrase ``for good cause shown'' does not usefully add
to the proposed standard, ``as necessary to serve the ends of
justice.''
Three commenters urged the MSPB to maintain the interlocutory
appeal process in cases where a sanction is imposed. The proposed
change recognizes, however, that providing for an automatic
interlocutory appeal, as the current regulation does, may unnecessarily
delay the processing of an appeal. Moreover, the revised regulation
does not prohibit a request for an interlocutory appeal of an imposed
sanction. A sanctioned party who believes an interlocutory appeal would
meet the requirements of 1201.92 remains free to seek one. In making
proposed amendments to our regulations, the Board did not propose
changes to the substantive criteria in 1201.92 for granting
interlocutory appeals. It would be inappropriate to publish a final
rule that goes beyond the scope of the proposed amendments. However,
the MSPB is willing to consider any specific suggestions to improve its
regulations and procedures in this area and invites any interested
party to submit a petition for rulemaking addressing this area of MSPB
practice and procedure.
Section 1201.51 Scheduling the Hearing
The MSPB proposed to delete the current list of approved hearing
sites contained in Appendix III, in favor of a posting of such sites on
the Board's Web site, thereby facilitating greater flexibility in the
selection of cost effective locations.
Several commenters expressed the concern that this section appears
to be aimed at saving the MSPB travel expenses but is likely to result
in greater costs for the responding agency. These commenters suggested
that the regulation should be amended to maximize savings to the
Federal Government as a whole. The MSPB's intent in proposing this
amendment was not to minimize MSPB travel expenses at the expense of
the parties, however, but rather to ensure that hearing site locations
can be flexibly adjusted in response to ongoing changes in the relative
costs of travelling to particular sites. Parties may request a change
in an approved site if lower costs can be achieved in a particular
case.
A commenter recommended that the last sentence should be modified
to state that rulings on motions requesting a different hearing
location should ``be based on a showing that a different location will
result in lower cost to the government as a whole.'' The MSPB does not
believe that this suggestion accounts for the costs borne by appellants
and therefore will not adopt the commenter's proposal.
A commenter approved of the proposed regulation but recommended
that the MSPB expressly authorize telephonic or video hearings and
direct parties to its Web site for resources. The MSPB did not address
the question of expressly authorizing telephonic or video hearings in
its regulations and therefore the MSPB will not address this issue
herein, except to say that this has been noted and may be considered in
the future.
Finally, a commenter reported that in his experience judges have
displayed poor judgment by scheduling hearing and prehearing deadlines
far before the completion of discovery, unilaterally setting hearing
dates for personal convenience, and denying unopposed motions to
reschedule hearings. This commenter also suggested that the MSPB has
seemingly taken the approach of cutting short discovery to meet the
prehearing dates selected by the judge. Parties may request a
suspension under 1201.28 when additional time is needed for discovery.
Concerns that a judge is improperly managing a particular case should
be directed to the appropriate Regional Director or Chief
Administrative Judge.
Section 1201.52 Public Hearings
The MSPB proposed to amend this regulation to give administrative
judges express authority to control the use of electronic devices at a
hearing.
A commenter suggested that this regulation should be broken out
into two parts, one addressing closure of a hearing and the other
addressing use of electronic devices. The MSPB agrees that this
proposed change will improve the regulation, and the final rule has
been amended accordingly.
A commenter objected to language in this regulation allowing a
judge to close hearings and recommended that such authority be limited
to appeals involving classified information or in the case of a
pseudonymous or anonymous appeal. Another commenter suggested that the
MSPB replace the second sentence with: ``However, the judge may order a
hearing or any part of a hearing closed when [Sensitive Security
Information (SSI)] or classified information will be discussed, and/or
when doing so would be in the best interests of the appellant, a
witness, the public or any other person affected by the proceeding.'' A
different commenter suggested that the MSPB amend this regulation to
state that all or part of a hearing may be closed when doing so is in
the best interests of a party, instead of limiting the inquiry to the
best interests of an appellant. The MSPB has amended this regulation to
substitute ``interests of a party'' for ``interests of an appellant''
since a respondent may offer good reasons to close a hearing, including
the possible disclosure of classified information or SSI. The MSPB
otherwise declines to further restrict when a hearing may be closed to
the public, based on the foreseeability of circumstances where the
closure of a hearing may be justified and necessary.
A commenter recommended clarifying that the section's reach extends
to devices which have electronic recording and two-way communication
functionality, even if those are not the device's primary functions. A
commenter suggested that, because cell phones are often used as clocks,
a representative should be allowed to keep a cell phone in silent mode
or a laptop with them during the hearing. This commenter further
observed that an administrative judge can issue an order at the outset
of the hearing that requires representatives to comply with all terms
and sanction any party for not complying. Another commenter observed
that the MSPB should reasonably control the use of cellphones during a
hearing rather than deny such use. The proposed rule gives the
administrative judge sufficiently broad flexibility to address the
concerns raised in these comments on a case-by-case basis.
Section 1201.53 Record of Proceedings
The MSPB proposed to make several changes to the regulation. The
term ``tape recording'' was replaced by the word ``recording'' and the
term ``written transcript'' was replaced by ``transcript.'' The MSPB
also proposed to allow a judge or the Board to order
[[Page 62356]]
the agency to pay for a transcript in certain circumstances.
A commenter objected to the proposed deletion of paragraph (e),
which specifies the contents of the official record of the appeal. The
deletion of this paragraph was unintentional. The paragraph has been
reinserted into the final rule with minor amendments.
Several commenters argued that the MSPB lacks the authority to
require that agencies pay for transcripts as proposed in paragraph (b).
While not conceding that it lacks authority to take such action, the
MSPB is removing this provision from the final rule.
A commenter offered a complete rewrite of this regulation to
correct what it viewed as redundant and internally inconsistent
provisions. In response, the MSPB has deleted a sentence in paragraph
(a) that is duplicative of language in paragraph (c). The matter
identified as inconsistent related to the requirement that an agency
procure a transcript and has been addressed by the deletion of that
provision.
Section 1201.56 Burden and Degree of Proof; Affirmative Defenses
The Board proposed to amend this regulation in an attempt to
reconcile the existing regulation with a significant body of Board case
law holding that some jurisdictional elements may be established by
making nonfrivolous allegations. The MSPB received numerous helpful
comments concerning the proposed amendments to this regulation.
Commenters suggested that the regulation's discussion of the varying
degrees of proof would be confusing to pro se appellants and the phrase
``jurisdictional hearing'' should be substituted with the word
``hearing,'' to avoid any suggestion that a hearing with respect to a
jurisdictional element confers any fewer rights with respect to
discovery and other elements of MSPB due process, in a hearing on the
merits. Other commenters recommended that the MSPB revise the
definition of a ``nonfrivolous allegation'' and insert a sentence
stating that a judge may dismiss a case for not meeting the
nonfrivolous allegation standard. Finally, a commenter suggested that
the MSPB offer further clarification of the burden that IRA appellants
must meet to establish jurisdiction so as to avoid the dismissal of
meritorious IRA appeals at the jurisdictional stage.
Considering these comments, and after additional internal review,
the Board has determined that it is appropriate to withdraw the
proposed amendments to this regulation. We agree with many of the
comments and conclude that it would be inappropriate to publish a final
rule that goes beyond the scope of the proposed amendments. The MSPB
plans to reconsider the current regulation in its entirety and, if
amendments are determined to be necessary, offer proposed amendments to
this regulation in a future rulemaking.
Section 1201.58 Closing the Record
The MSPB proposed amending this regulation to conform with case law
indicating that, notwithstanding an order setting the date on which the
record will close, a party must be allowed to submit evidence or
argument to rebut new evidence submitted by the other party just prior
to the close of the record.
A commenter generally agreed with the proposed amendment but was
concerned that the addition of the words ``or argument'' could be
interpreted to allow a party to add additional arguments that they had
failed to raise before the filing deadline. The final rule revises the
proposed language in 1201.58(c) to address this concern and clarifies
that the regulation is intended to allow new evidence or argument that
is offered in rebuttal of new evidence or argument submitted by the
other party just before the record closed.
A party observed that acknowledgment orders often include
conflicting provisions that theoretically allow for discovery but close
the record on issues of jurisdiction or timeliness before discovery can
be completed. This commenter suggested that this regulation should be
amended to require judges to properly address the relationship between
the closing of the record on a particular issue and the close of
discovery. This complaint was aired by more than one commenter. The
MSPB is willing to consider any specific suggestions to improve its
regulations and procedures in this area and invites any interested
party to submit a petition for rulemaking addressing this area of MSPB
practice and procedure.
Section 1201.62 Producing Prior Statements
The MSPB proposed to delete this regulation in its entirety as it
has virtually never been invoked or applied and is believed to be
unnecessary. The MSPB received no comments concerning its proposed
deletion of this regulation and the final rule makes the proposed
deletion.
Section 1201.71 Purpose of Discovery
The MSPB proposed an amendment adding a sentence stating that
discovery requests and discovery responses should not ordinarily be
filed with the Board, as is currently done in standard orders.
A commenter voiced complaints about the current rule requiring that
a motion to compel be filed within 10 days. This commenter instead
suggested that such motions should be filed within a reasonable time
prior to the prehearing conference or the current standard should be
changed to allow the parties to agree upon a longer period of time in
which to file the motion to compel. This area of discovery practice was
not addressed in the proposed rule. However, the MSPB is willing to
consider any specific suggestions to improve its regulations and
procedures in this area and invites any interested party to submit a
petition for rulemaking addressing this area of MSPB practice and
procedure.
Section 1201.73 Discovery Procedures
The MSPB proposed to eliminate the initial disclosure requirement
of subsection (a), eliminate unnecessary distinctions between discovery
on parties and nonparties, increase the time period in which initial
discovery requests must be served, 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, and amend subparagraph (c)(i) to reflect 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.
A commenter queried why certain text in paragraph (c) was absent
from the proposed regulation. The changes proposed in the comprehensive
rewrite of this regulation were explained in the supplementary
information section of the proposed rule.
A commenter suggested that the MSPB should address the application
of (d)(1) and (d)(4) to matters refiled following a dismissal without
prejudice by stating that the time for conducting discovery should
restart on the date the judge issues an order reinstating the appeal.
The MSPB believes that this change would be unwise and prefers to allow
judges to address this matter in specific cases.
A commenter proposed to add the word ``final'' before the phrase
``prehearing or close of the record conference.'' The MSPB will not
make this change as there are not multiple prehearing or close of the
record conferences in a case.
[[Page 62357]]
A commenter suggested that the MSPB replace ``file'' with ``serve''
in the first sentence of paragraph (d)(2) so it is clear that discovery
responses should not be filed with the Board unless in connection with
a motion to compel. The MSPB has amended paragraph (d)(2) by
substituting the word ``serve'' for the word ``file'' to clarify that
responses to discovery requests are served on the other party.
A commenter suggested that the MSPB should require that all
discovery requests made upon nonparties be served on the opposing
party. A party can request in discovery that such requests be
disclosed.
A commenter agreed with the elimination of initial disclosures for
agencies but objected to the elimination of initial disclosure
requirements for appellants because the agency will lack key
information about the appellant's witnesses if it must affirmatively
ask for this information through discovery. The MSPB believes that
removing the initial disclosures requirements for one party but not the
other would be unfair.
A commenter recommended adding limits on discovery and
interrogatory requests, including subparts, consistent with those under
the Federal Rules of Civil Procedure. Such limits are set forth in
paragraph (e) of the proposed rule.
A commenter suggested that the MSPB add a requirement similar to
FRCP 26(b)(5), which requires a party to produce a privilege log when
it asserts a privilege as the basis for withholding otherwise
discoverable information. In making proposed amendments to our
regulations, the Board did not propose changes to this area of
discovery practice. It would be inappropriate to publish a final rule
that goes beyond the scope of the proposed amendments. However, the
MSPB is willing to consider any specific suggestions to improve its
regulations and procedures in this area and invites any interested
party to submit a petition for rulemaking addressing this area of MSPB
practice and procedure.
A commenter suggested that the MSPB should set prehearing deadlines
to accommodate the completion of discovery instead of limiting
discovery to meet prehearing dates. The scheduling of a prehearing
conference must be left to the discretion of the judge. If a party
believes insufficient time is available for discovery, he or she may
seek a suspension under 1201.28.
A commenter suggested that the MSPB include a provision mandating
an automatic stay of all discovery deadlines if the Board's
jurisdiction is called into question, with the stay remaining in effect
until the jurisdictional issues are adjudicated. The MSPB has
determined that adding such a provision is inadvisable because it would
add significant delay to the adjudication of cases ultimately found to
be within its jurisdiction. A party is free to ask for such a stay in
an individual case.
A commenter opposed the requirement of (c)(1)(i) that the party
moving to compel discovery produce ``a statement showing that the
information is relevant and material and the scope of the request is
reasonable'' as contrary to the proper standard for discovery--that the
information sought is likely to lead to the discovery of admissible
evidence. In response to this comment and the differing scopes of
discovery that apply to parties and nonparties (see Sec. 1201.72(a)
and (b)), the MSPB has modified paragraph (c)(1)(i), to refer back to
1201.72.
Section 1201.81 Requests for Subpoenas
The MSPB did not offer any amendments to this regulation in the
proposed rule. However, in light of the amendment in the final rule to
1201.73(c)(1)(i) regarding motions to compel or issue a subpoena, the
MSPB also deemed it appropriate to amend 1201.81(c) so that it is
consistent with the standard described in section 1201.72(b):
``Discovery requests that are directed to nonparties and nonparty
Federal agencies and employees are limited to information that appears
directly material to the issues involved in the appeal.''
Section 1201.93 Procedures
The MSPB proposed to replace ``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 MSPB also
proposed to use the term ``stay the processing of the appeal'' in lieu
of the term ``stay the appeal'' to avoid any ambiguity.
A party observed that the proposed rule allows a stay during an
interlocutory appeal, but it is unclear whether this stay is charged
against the 60-day aggregate limit on case suspensions. We agree and
have revised the regulation to clarify that a stay granted in response
to an interlocutory appeal is not related to a case suspension under
1201.28 and therefore any time the case is subject to such a stay is
not counted against the time allowed for case suspensions under
1201.28.
Section 1201.101 Explanation and Definitions
The MSPB proposed an amendment to 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. The MSPB received no comments concerning its
proposed changes to this regulation and is adopting the proposed rule
as final.
Section 1201.111 Initial Decision by the Judge
The MSPB proposed to delete language about serving the Office of
Personnel Management (OPM) and the Clerk of the Board with initial
decisions to conform with longstanding Board practice under which OPM
has access to all of the Board's initial and final decisions via the
MSPB Extranet.
A party recommended against deleting all reference to the Board's
responsibility to serve OPM, as this is a statutory duty under 5 U.S.C.
7701(b)(1). The MSPB has amended the proposed rule to address this
comment.
Section 1201.112 Jurisdiction of the Judge
The MSPB proposed an amendment that 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. The MSPB received no
comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1201.113 Finality of Decision
The MSPB proposed to amend paragraph (a) to conform this regulation
to the proposed revision to 5 CFR 1201.112(a)(4) described above. The
MSPB proposed to add paragraph (f) 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.
A commenter suggested that the MSPB address the difficulty that
arises when a judge orders compliance with an initial decision on a
date prior to the date the initial decision becomes final. Except for
orders granting interim relief, compliance should not be ordered before
the finality date and the MSPB's standard orders are formatted to avoid
[[Page 62358]]
this from occurring. The MSPB sees no need to address this situation in
its regulations.
Several commenters pointed out a typographical error in the opening
sentence. The MSPB has corrected this error.
A commenter noted that the proposed language places no restriction
on the timeframe for a final decision. There is no time limit within
which the Board must issue a decision on a pending petition for review,
but the Board attempts to resolve cases as quickly as it can.
A commenter objected to the ``reason to believe'' standard for
referral of a prohibited personnel practice to OSC as too low and
vague. The commenter further suggested that referral to OSC should
remain limited to IRA appeals in which the Board found that the agency
retaliated against the appellant and that such a referral divests the
agency of its responsibility to address the issue internally. In the
MSPB's view, the reasonable belief standard is neither too vague nor
too low. In any event, the ``reason to believe'' standard is prescribed
by statute, 5 U.S.C. 1221(f)(3), and the Board is not free to modify
it. The Board has an obligation to make such a referral whenever it
makes a finding that an appellant in a Board proceeding suffered
retaliation for protected whistleblowing in violation of 5 U.S.C.
2302(b)(8). In our view, a referral by the Board to OSC does not in any
way prevent the agency in question from taking appropriate disciplinary
action. The Board proceeding focuses on whether the appellant suffered
such retaliation; it does not focus on who was responsible for the
retaliation, whether such official(s) should be disciplined, and, if
so, what the extent of such discipline should be. OSC is the agency
charged with making those determinations.
Section 1201.114 Petition and Cross Petition for Review--Content and
Procedure
The MSPB proposed page limitations for pleadings on petition for
review, to allow for replies to responses to petitions for review, and
to define petitions for review and cross petitions for review.
Paragraph (b) was amended to specify that a petition or cross petition
for review must include ``all of the party's legal and factual
arguments.''
A commenter noted that the references in (a)(1), (2), (4), and (5)
to ``a party'' are incomplete to the extent they do not include OPM and
the Special Counsel. The phrase ``a party'' includes both of these
agencies. See 5 CFR 1201.4(e).
A commenter asked the MSPB to clarify in its regulations whether a
reply to a response to a petition for review is permitted. The proposed
regulations clearly indicate that such a pleading is authorized.
Commenters recommended spacing limits and/or word limits, in
addition to page limits and set forth the consequences of
noncompliance. In response to this comment, the MSPB has modified
paragraph (h) to include alternate word count requirements (in addition
to page limits) and modified other language slightly. Paragraph (l) was
added to address the consequences of noncompliance.
A commenter noted that paragraph (f) only allows a party to file an
extension ``before the date on which the petition for review is due''
and that the MSPB should provide for extenuating circumstances that may
arise on the date of filing. This comment was addressed in a minor
amendment to paragraph (f).
A commenter recommended that the MSPB, when the timeliness of a
petition for review is at issue, should address the timeliness issue of
a petition for review before the agency is required to submit its
response on the merits. While this suggestion has some merit, it is
impractical for the MSPB to adopt this suggestion given the number of
petitions for review it receives. In addition, adopting this suggestion
would inevitably delay the resolution of those petitions for review
ultimately found to have been timely filed.
A commenter was unsure of the value of a reply brief and suggested
that the MSPB allow the filing of such brief on a trial basis. The MSPB
does not plan to implement this change as a trial project. If this new
pleading proves unhelpful, the MSPB may address it in a future
rulemaking.
A commenter noted that the provisions on extensions of time and
late filings seem to provide that an extension request made prior to
the filing deadline serves as an extension without a formal ruling by
the Board, at least until such a formal ruling is made and suggested
that the automatic extension created by the filing of an extension
request should be made explicit in the paragraph addressing extensions
of time to file. The proposed rule does not provide that an extension
request made on or before the filing deadline serves as an extension
without a formal ruling by the Board.
Section 1201.115 Criteria for Granting Petition or Cross Petition for
Review
The MSPB proposed an amendment to address the criteria for granting
petitions and cross petitions for review.
A commenter objected that the use of the phrase ``including but not
limited to'' when describing situations in which the MSPB may grant a
petition or cross petition for review left the MSPB's authority too
open-ended. The MSPB's intent in using this language was to give the
MSPB the authority in other rare circumstances, either not foreseen in
the regulation or inadvertently left out of the regulation, to grant
such a petition. The general intent of the regulation is to grant a
petition for review whenever the petitioner shows that: (1) The case
was incorrectly decided based on the existing record; (2) new and
material evidence indicates that the outcome should be different than
in the initial decision; or (3) the petitioner did not get a full and
fair adjudication process. As written, the regulation tries to capture
the most common situations in which these conditions are present, but
it could not capture all such circumstances.
A commenter suggested amending paragraph (e) to be clearer and
preserve the power to reopen in 1201.118. We modified the wording of
paragraph (e) to convey the meaning more clearly.
A commenter suggested that the MSPB adopt a 30-day time limit for
reopening appeals. The MSPB believes such a rule lacks sufficient
flexibility.
A commenter objected to the inclusion of ``or legal argument'' in
the discussion in paragraph (d) concerning reliance upon new evidence
or legal argument at the petition for review level. The MSPB's intent
in this regulation is to allow parties to raise new legal arguments
arising from the discovery of new evidence, not any new legal argument
a party wishes to raise belatedly. In addition, this language
anticipates situations in which governing law has changed since the
initial decision was issued.
Section 1201.116 Compliance With Orders for Interim Relief
The MSPB proposed to amend this regulation to combine the existing
contents of 5 CFR 1201.116 with the provisions of 5 CFR 1201.115(b) and
(c).
A commenter suggested that this regulation should be revised to
provide an agency the opportunity to seek a stay of interim relief
while its petition for review is pending. Another commenter expressed
the concern that under paragraph (g) an appellant could be granted full
interim relief although he or she is not the prevailing party in the
final Board order. The Board declines to adopt these suggestions
because stays of interim relief undermine the very purpose of granting
such relief and risk engendering collateral litigation. The
[[Page 62359]]
MSPB sees no value in creating a separate system of reviewing this
aspect of an initial decision while the petition for review is being
considered.
A commenter suggested that the language of (d) should state that
``[i]f the agency files a petition for review or a cross petition for
review or has not provided required interim relief * * *.'' The MSPB
will not implement this change as the dismissal of a petition or cross
petition for review for failure to provide required interim relief is
only possible in cases where such a pleading has been filed.
A commenter suggested that the regulation was unclear and asked if
it is intended to give the appellant a discretionary opportunity to
request dismissal of an agency petition for review for lack of proper
interim relief under (d) and to provide another opportunity to
challenge the completeness of interim relief under (g) in the event the
agency petition for review is granted. The commenter's interpretation
of the proposed rule is correct, and the proposed rule is unambiguous.
Section 1201.117 Procedures for Review or Reopening
The MSPB proposed to amend subparagraph (a)(1) to reflect 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.
A commenter requested that the MSPB reconsider its distinction
between nonprecedential final orders and precedential opinions and
orders as the commenter failed to see the characterization of a
decision as ``non-precedential'' as meaningful. As the commenter noted,
this request concerns an issue not addressed in the proposed rule.
Therefore, while the MSPB has taken note of this comment, no amendment
to the MSPB's regulations is contemplated in this final rule. The MSPB
is willing to consider any specific suggestions to improve its
regulations and procedures in this area and invites any interested
party to submit a petition for rulemaking addressing this area of MSPB
practice and procedure.
Section 1201.118 Board Reopening of Final Decisions
The MSPB proposed to amend this regulation 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 also amended this regulation to incorporate well-established case
law addressing the rare and limited circumstances in which the Board
will reopen a final decision.
A commenter objected to the MSPB's proposed amendment on the
grounds that it would establish a very high standard that will make it
difficult for OPM or other Federal agencies to successfully seek relief
from an erroneous decision. The Board thinks the proposed standard is
an appropriate general standard for reopening an appeal and believes
that the concern that OPM will have difficulty seeking reopening is
unwarranted as OPM can seek reconsideration under 5 U.S.C. 7701(e) and
1201.119.
A commenter observed that the amended regulation includes no time
limit on the Board's authority to reopen a case. The MSPB does not
believe that a preset time limit for filing a request to reopen an
appeal is appropriate and is confident that that current language
stating that such a request must generally be filed within a short time
after the decision becomes final is sufficient to guard against late-
filed requests.
A commenter was concerned that the proposed regulation would
severely limit the MSPB's authority to reopen and reconsider cases on
its own motion and appears to conflict with the broad authority granted
the MSPB under 5 U.S.C. 7701(e)(1). The Board believes that reopening
or reconsidering a final decision must be confined to rare and limited
circumstances and that nothing in the proposed regulation conflicts
with the grant of authority given to the MSPB under 5 U.S.C.
7701(e)(1).
A commenter requested clarification of the impact of the proposed
amendments on petitions for review. The proposed rule has no effect on
petitions for review.
Section 1201.119 OPM Petition for Reconsideration
The MSPB proposed 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 is an Opinion and Order or a ``Final Order.''
The MSPB received no comments concerning its proposed changes to
this regulation and is adopting the proposed rule as final.
Section 1201.122 Filing Complaint; Serving Documents on Parties
This proposed rule was intended to correct an oversight in the
MSPB's regulations relating to the use of e-Appeal in original
jurisdiction actions. The MSPB also proposed to amend paragraph (a) to
require OSC to file a single copy of the complaint. Paragraphs (d) and
(e) were deleted as unnecessary.
The MSPB received no comments concerning its proposed changes to
this regulation and is adopting the proposed rule as final.
Section 1201.128 Filing Complaint; Serving Documents on Parties
The proposed amendments to this regulation were similar to the
proposed amendments to 5 CFR 1201.122. The MSPB received no comments
concerning its proposed changes to this regulation and is adopting the
proposed rule as final.
Section 1201.134 Deciding Official; Filing Stay Request; Serving
Documents on Parties
The proposed amendments to this regulation were similar to the
proposed amendments to 5 CFR 1201.122. The MSPB received no comments
concerning its proposed changes to this regulation and is adopting the
proposed rule as final.
Section 1201.137 Covered Actions; Filing Complaint; Serving Documents
on Parties
The proposed amendments to this regulation were similar to the
proposed amendments to 5 CFR 1201.122. A commenter recommended that the
MSPB eliminate the requirement in paragraph (c) that the agency file
two copies of the complaint on the MSPB. The MSPB has made this change
in the proposed rule.
Section 1201.142 Actions Filed by Administrative Law Judges
The MSPB proposed to correct a typographical error in this
regulation. The MSPB received no comments concerning its proposed
changes to this regulation and is adopting the proposed rule as final.
Section 1201.143 Right to Hearing; Filing Complaint; Serving Documents
on Parties
The proposed amendments to this regulation were similar to the
proposed amendments to 5 CFR 1201.122. A minor technical amendment has
been made to paragraph (c) to be consistent with requirements for
filing new appeals under the Board's appellate jurisdiction. Section
1201.26(a) provides
[[Page 62360]]
that the appellant ``must file two copies of both the appeal and all
attachments with the appropriate Board office, unless the appellant
files an appeal in electronic form under Sec. 1201.14. Unlike the
original jurisdiction appeals under 1201.122, .128, and .134, the MSPB
needs a second copy for service on the opposing party.
Section 1201.153 Contents of Appeal
The MSPB proposed to amend (a)(2) to clarify that not all
discrimination matters may be raised with the Board and 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. The MSPB received no
comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1201.154 Time for Filing Appeal; Closing Record in Cases
Involving Grievance Decisions
The MSPB proposed to incorporate by reference the rules governing
constructive receipt as proposed in 5 CFR 1201.22(b)(3). The MSPB
received no comments concerning its proposed changes to this regulation
and is adopting the proposed rule as final.
Section 1201.155 Requests for Review of Arbitrators' Decisions
The MSPB proposed to remove the existing regulation as unnecessary
and put in its place a new regulation addressing requests for review of
arbitrators' decisions. The proposed rule also removed the existing
regulation at 5 CFR 1201.154(d) and moved it into 5 CFR 1201.155. The
MSPB has noted that the instructions in the proposed rule did not
actually delete paragraph (d) from section 1201.154; nor did it delete
paragraph (e), which also relates to review of arbitrators' decisions,
from section 1201.155. In addition, the MSPB had neglected to
incorporate language from paragraph (d) as to when a request for review
of an arbitrator's decision must be filed. The final rule corrects
these oversights. The requirement as to when a request for review must
be filed is now paragraph (b) in section 1201.155, and what had been
proposed as paragraphs (c) through (e) have become paragraphs (d)
through (f).
Several commenters objected to a provision in paragraph (d) (now
paragraph (e)) allowing an issue to be given to a judge for development
of the record. These commenters stated that where a remand is
necessary, the matter should be returned to the arbitrator, that the
MSPB's proposed rule conflicts with the collective bargaining process,
and that it would be prejudicial to the agency to allow the claim to be
raised for the first time upon the MSPB's review of an arbitrator's
award. We were concerned that remand to the arbitrator is not practical
or feasible in most cases. Arbitration is a matter of contract and,
once the arbitrator has issued an award, the contract has been
performed and the arbitrator has been paid. The arbitrator could not
become involved with the case on remand unless the union and the agency
agreed to create a new contract. We felt it would be more practical and
efficacious to forward such cases to MSPB judges where further
development of the record is required.
A commenter objects to paragraph (b), which would limit review to
cases in which the employee's claim of discrimination was raised in the
negotiated grievance procedure as inconsistent with the
``notwithstanding'' clause of 5 U.S.C. 7702. The Board does not believe
this change is inconsistent with the ``notwithstanding'' clause of
section 7702, and does not construe the Federal Circuit's decision in
Jones as compelling a contrary conclusion. An appellant who raises a
discrimination claim to the arbitrator in addition to the Title 5 or
other employment claim will be entitled to an adjudication of both. All
the Board is doing is specifying when the claim of discrimination must
be raised. We note that section 7121(d) provides for Board review of
``the final decision [of the arbitrator] pursuant to section 7702 of
this title * * *.'' If the Board were to adjudicate a claim of
discrimination that could have been but was not raised to the
arbitrator, it would not be reviewing the arbitrator's final decision
with respect to that claim; it would be adjudicating the claim de novo.
Section 1201.181 Authority and Explanation
The MSPB proposed non-substantive changes to this regulation that
merely reordered the information and added descriptive labels to each
paragraph. The MSPB received no comments concerning its proposed
changes to this regulation and is adopting the proposed rule as final.
Section 1201.182 Petition for Enforcement
The MSPB proposed to amend this regulation to 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.
A commenter observed that few agencies inform the appellant when
they believe that compliance is complete and therefore the time limit
for filing an enforcement petition will rarely be triggered by the
issuance of a notice of compliance by the agency. This commenter
suggested that the Board should provide a deadline for an agency to
issue a compliance notice and, if the compliance notice is issued,
provide the appellant 30 days to file an enforcement petition. The
commenter further suggested that, if the agency does not file a
compliance notice, the regulation should give the appellant a
reasonable period of time to file his or her petition after such notice
should have been filed by the agency. The MSPB recognizes and
appreciates the concerns raised by the commenter but believes that the
current rule is more appropriate, especially in light of the
complicated issues that sometimes arise in an agency's attempt to
comply with an MSPB order, such as when compliance with a Board order
requires the involvement of another agency.
Section 1201.183 Procedures for Processing Petitions for Enforcement
The MSPB proposed amendments to this regulation to 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 proposed regulation provided 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. The MSPB also proposed in paragraph (c) to
codify the different burdens of proof that apply in these enforcement
actions.
Commenters observed that the proposed rule, which eliminates the
``good faith'' consideration in evaluating a party's compliance with a
final decision, establishes a stricter standard than that provided for
under Rule 70 of the Federal Rules of Civil Procedure and arguably
establishes a strict liability standard. These commenters recommended
that the good faith
[[Page 62361]]
element be re-inserted into the regulation as there are occasions when
an agency, even if it acted with diligence in attempting to comply with
an order, cannot do so within the time frame specified by the order.
The objective behind the change to this regulation is threefold: (1) To
get the agencies to take their obligations seriously during the
regional office proceeding; (2) to get the judges to actually resolve
and make concrete what the agency's obligations are; and (3) to the
maximum feasible extent, get actual compliance at the regional office
level. Under this new framework, it is irrelevant whether the agency
has made a good faith attempt to comply with its obligations. What is
required is full and complete compliance. Retaining the ``good faith''
provision would run counter to these purposes.
A commenter recommended that the regulation be amended to require
that a copy of the initial decision finding noncompliance be served not
only on the responsible agency official, but also on all other parties
on the certificate of service. The MSPB will not make this proposed
amendment as nothing in the regulation suggests that the requirement to
serve the responsible agency official will affect service on any other
person.
A commenter pointed out that the Board stated in the notice of
proposed rulemaking that an initial decision finding noncompliance
would become final if neither party petitioned for review, but
paragraph (b) of the proposed regulation stated that, ``[f]ollowing
review of the initial decision and the written submissions of the
parties, the Board will render a final decision on the issues of
compliance.'' This seemed to imply that initial decisions would not
become final if no pleadings were filed. New paragraph (b) clarifies
this issue by providing that the initial decision will become the
Board's final compliance decision if the noncomplying party files
neither a petition for review nor a statement of compliance, and that
the matter will then be processed further under the enforcement
provisions of the regulation.
Heading of Subpart H
The Board proposed to revise the heading for Subpart H of Part 1201
to reflect that the subpart addresses attorney fees and related costs,
consequential damages, compensatory damages, and liquidated damages.
The MSPB received no comments concerning this proposed amendment and is
adopting the proposed change as previously published.
Section 1201.201 Statement of Purpose
The MSPB proposed to amend this regulation by adding a provision
relating to awards of liquidated damages under VEOA. The MSPB received
no comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1202.202 Authority for Awards
The MSPB proposed to amend this regulation by adding a provision
relating to awards of liquidated damages under VEOA. The MSPB received
no comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1201.204 Proceedings for Consequential, Liquidated, and
Compensatory Damages
The MSPB proposed 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 proposed to modify
this regulation to include requests for such damages. The MSPB received
no comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Appendix III to Part 1201
The MSPB proposed to remove and reserve Appendix III. See earlier
discussion regarding proposal to amend 5 CFR 1201.51(d).
Section 1203.2 Definitions
The MSPB proposed to revise this regulation to acknowledge that
there are now 12 prohibited personnel practices. The MSPB received no
comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1208.3 Application of 5 CFR Part 1201
The MSPB proposed to amend this section to reflect the references
to liquidated damages in section 5 CFR 1201.204. The MSPB received no
comments concerning its proposed changes to this regulation and is
adopting the proposed rule as final.
Section 1208.21 VEOA Exhaustion Requirement
The MSPB proposed to amend paragraph (a) to clarify and codify an
appellant's burden of proving exhaustion in a VEOA appeal. The MSPB
proposed in paragraph (b) to add a section addressing equitable
tolling. The MSPB received no comments concerning its proposed changes
to this regulation and is adopting the proposed rule as final.
Section 1208.22 Time of Filing
The MSPB proposed to add paragraph (c) to address the possibility
of excusing an untimely filed appeal under the doctrine of equitable
tolling.
A commenter stated that by providing examples of circumstances that
could support equitable tolling, the MSPB may be limiting the
circumstances that will be described by appellants and recommended that
the MSPB change the language from ``examples include'' to ``examples
include, but are not limited to.'' The MSPB sees no need to make this
change as the phrase ``examples include'' clearly indicates that the
stated examples are not an exclusive list of all available
circumstances that could support a claim of equitable tolling.
Section 1208.23 Content of a VEOA Appeal; Request for Hearing
The MSPB proposed to amend this regulation to reflect the fact that
it will scrutinize the exhaustion issue in a VEOA appeal in the same
way that it scrutinizes the exhaustion issue in an IRA appeal. The
proposed amendment therefore added 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 the Department of Labor. The MSPB received no comments
concerning its proposed changes to this regulation and is adopting the
proposed rule as final.
Section 1209.2 Jurisdiction
The MSPB proposed to change the reference in paragraph (a) from 5
U.S.C. 1214(a)(3) to 5 U.S.C. 1221(a). In addition, in light of a 1994
amendment to 5 U.S.C. 7121 adding paragraph (g), the MSPB proposed to
overrule a significant body of Board case law and amend this regulation
to provide 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). The proposed amendment also made clear that an election is
deemed to have been made based on which of the 3 actions the individual
files first. The proposed rule further stated that when taking an
otherwise
[[Page 62362]]
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.
Several commenters object to the new election of remedies provision
contained in paragraph (d). These commenters argue that the election
requirement in paragraph (d) is not required under 5 U.S.C. 7121(g)
because that statute applies only to employees covered by collective
bargaining agreements. As explained in the supplementary information
section of the proposed rule, the MSPB is convinced that a plain
reading of 5 U.S.C. 7121(g) indicates that 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.
The proposed rule therefore adopted the plain language reading of 5
U.S.C. 7121(g) and proposed to overrule Massimino v. Department of
Veterans Affairs, 58 M.S.P.R. 318 (1993) and its progeny.
An employee who is not covered by a negotiated grievance procedure
does not have all three of the options listed in subsection 7121(g)(3),
as he or she cannot elect the negotiated grievance procedure. That does
not mean, however, that the statute therefore contemplates that such an
individual may elect both of the other two options; it simply means
that the individual has to select one or the other of those two
options. We note in this regard that the term ``employee'' in 5 U.S.C.
chapter 71 is not limited to those covered by negotiated grievance
procedures. See 5 U.S.C. 7103(a)(2).
Several commenters expressed concern about the relationship between
elections following proposed and effected personnel actions. One
commenter noted that when an employee has filed a complaint with OSC at
the proposal notice stage and thereafter wants to file a direct appeal
once an action has been taken, the employee will be required to
withdraw the OSC complaint regarding the proposal notice in order to
get full direct appeal rights as to the removal. The MSPB does not
agree that the new election provision would require this result. In the
MSPB's view, an employee would be able to make separate elections for
both the proposed and effected actions and pursue the remedy selected
for each action. The MSPB understands that there remain practical
concerns when an individual wants to pursue with OSC the claim that a
proposal notice was retaliation for whistleblowing, while pursuing a
direct appeal with the Board for the effected adverse action. In
particular, there would be the possibility that the adverse action
appeal might proceed toward the issuance of an initial decision before
OSC has the opportunity to investigate the claim and pursue corrective
action on the individual's behalf. We note in this regard that the
appellant in the adverse action appeal could seek a stay under section
1201.28 or a dismissal without prejudice under section 1201.29, to
ensure that OSC has an opportunity to complete its investigation and
seek corrective action.
A commenter agreed that the MSPB had no choice but to reconcile its
regulations regarding election of remedies with the requirements of 5
U.S.C. 7121(g) but argued that the MSPB should not apply the new
election provision retroactively as retroactive application is not
favored in the law and would lead to confusion and increased
litigation. The new election of remedies provision does not address
whether it may be applied retroactively. However, with regard to this
issue, it must be noted that Congress amended 5 U.S.C. 7121 to add
paragraph (g) in 1994. Public Law 103-424, section 9(b), 108 Stat.
4361, 4365-66 (1994). There would be difficult interim questions
concerning cases that are already in the pipeline. One issue would be
whether, despite the seemingly clear language and consequences of Sec.
7121(g), the appellant should be deemed to have made a valid and
binding election. An argument might be made that an election is not
binding unless it constitutes a knowing and informed decision. Cf.
Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1326-27 (Fed.
Cir. 2006) (concluding that the appellant made a knowing and informed,
and therefore binding, election under Sec. 7121(e)). The proposed
regulation does not resolve this question, which would be resolved in
particular appeals. If the Board were to hold that some elections were
not binding, a related question would be whether the Board should
excuse the untimely filing of the Board appeal, which would be filed
well after the 30-day deadline of 5 CFR 1201.22(b)(1). Again, this
would be resolved in particular appeals.
Section 1209.4 Definitions
The MSPB proposed to amend the definition of ``whistleblowing.''
The MSPB received no comments concerning its proposed changes to this
regulation and is adopting the proposed rule as final.
Section 1209.5 Time of Filing
The MSPB proposed 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 to revise the language
regarding equitable tolling consistent with the changes made in
sections 5 CFR 1208.21 and .22.
A commenter stated that by providing examples of circumstances that
could support equitable tolling, the MSPB may be limiting the
circumstances that will be described by appellants and recommended that
the MSPB change the language from ``examples include'' to ``examples
include, but are not limited to.'' The MSPB sees no need to make this
change as the phrase ``examples include'' clearly indicates that the
stated examples are not an exclusive list of all available
circumstances that could support a claim of equitable tolling.
Section 1209.6 Content of Appeal; Right to Hearing
As in the modification to 5 CFR 1201.24(d), the MSPB proposed to
clarify that an appellant does not automatically have a right to a
hearing in every Board appeal and that such a right exists, if at all,
only when the appeal has been timely filed and the appellant has
established jurisdiction over the appeal. The MSPB received no comments
concerning its proposed changes to this regulation and is adopting the
proposed rule as final.
Comments Beyond the Scope of the Proposed Rule
The MSPB solicited comments on any other aspect of its adjudicatory
regulations in its proposed rule. The MSPB received a number of
comments on such matters and appreciates the thoughtfulness with which
the commenters made their views known. The MSPB has reviewed these
submissions and will consider each of the commenters' ideas as it
continues to strive to improve its adjudicatory regulations.
One comment received by the MSPB addressed two issues that the
commenter, after noting that the two issues were beyond the scope of
matters addressed in the proposed rule, asked the MSPB to consider as a
petition for rulemaking. In keeping with the MSPB's proposed rule
regarding petitions for rulemaking and the MSPB's commitment to post
such requests on its Web site, the MSPB will shortly post this request
on its Web site with a request for comments from interested parties.
The petition asks the MSPB to replace the definition of
[[Page 62363]]
``preponderance of the evidence'' in 5 CFR 1201.56(c)(2) and correct a
perceived error regarding the burdens of proof in a case under 5 U.S.C.
4303 in its holding in Griffin v. Department of the Army, 23 M.S.P.R.
657 (1984).
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
amends 5 CFR parts 1200, 1201, 1203, 1208, and 1209 as follows:
PART 1200--[AMENDED]
0
1. The authority citation for 5 CFR part 1200 continues to read as
follows:
Authority: 5 U.S.C. 1201 et seq.
0
2. Add Sec. 1200.4 as follows:
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 1216.
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 under the Administrative Procedure
Act. 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
0
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.
0
4. In Sec. 1201.3, revise paragraph (a) 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
label or 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) Suitability Action. Action based on suitability determinations,
which relate to an individual's character or conduct that may have an
impact on the integrity or efficiency of the service. Suitability
actions include the cancellation of eligibility, removal, cancellation
of reinstatement eligibility, and debarment. A non-selection or
cancellation of eligibility for a specific position based on an
objection to an eligible or a pass over of a preference eligible under
5 CFR 332.406 is not a suitability action. (5 CFR 731.501, 731.203,
731.101(a));
(10) Various Actions Involving the Senior Executive Service.
Removal or suspension for more than 14 days (5 U.S.C. 7543(d) and 5 CFR
752.605); 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.
(i) Failure to afford reemployment priority rights pursuant to a
Reemployment Priority List following separation by reduction in force
(5 CFR 330.214);
(ii) Full recovery from a compensable injury after more than 1
year, because of the employment of another person (5 CFR 302.501);
(iii) Failure to reinstate a former employee after service under
the Foreign Assistance Act of 1961 (5 CFR 352.508);
(iv) Failure to re-employ a former employee after movement between
executive agencies during an emergency (5 CFR 352.209);
(v) Failure to re-employ a former employee after detail or transfer
to an international organization (5 CFR 352.313);
(vi) Failure to re-employ a former employee after service under the
Indian Self-Determination Act (5 CFR 352.707); or
[[Page 62364]]
(vii) Failure to re-employ a former employee after service under
the Taiwan Relations Act (5 CFR 352.807).
* * * * *
0
5. In Sec. 1201.4 revise paragraphs (a) and (j) and add new paragraph
(o) 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 the Board or any member
of the Board, or 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.
* * * * *
(o) Grievance. A complaint by an employee or labor organization
under a negotiated grievance procedure covered by 5 U.S.C. 7121.
0
6. In Sec. 1201.14 revise paragraphs (c) and (m)(1) to read as
follows:
Sec. 1201.14 Electronic Filing Procedures.
* * * * *
(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) * * *
(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.
* * * * *
0
7. In Sec. 1201.21 revise paragraphs (d) introductory text, (d)(2),
(d)(3) and add new paragraphs (d)(4), (e) and (f) to read as follows:
Sec. 1201.21 Notice of appeal rights.
* * * * *
(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:
* * * * *
(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 Sec. 1201.155 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 or to grieve allegations of
unlawful discrimination, consistent with the provisions of 5 U.S.C.
7121(d) and 29 CFR 1614.301 and 1614.302.
(f) The name or title and contact information for the agency
official to whom the Board should send the Acknowledgment Order and
copy of the appeal in the event the employee files an appeal with the
Board. Contact information should include the official's mailing
address, email address, telephone and fax numbers.
0
8. In Sec. 1201.22, add paragraph (b)(3) to read as follows:
Sec. 1201.22 Filing an appeal and responses to appeals.
* * * * *
(b) * * *
(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 may be deemed to have received the agency
decision.
Example B: An appellant who did not receive his or her mail
while in the hospital may overcome the presumption of actual
receipt.
Example C: An appellant may be deemed to have received an
agency decision received by his or her roommate.
* * * * *
0
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.
Unless a different deadline is specified by the Board or its designee,
5 days are added to a party's deadline for responding to a document
served on the party by mail.
Example 1: If an employee receives a decision notice that is
effective on July 1, the 30-day period for filing an appeal starts
to run on July 2. The filing ordinarily would be timely only if it
is made by July 31. If July 31 is a Saturday, however, the last day
for filing would be Monday, August 2.
Example 2: The judge orders the appellant to file a response to
a jurisdictional order no later than October 15, 2012, and that the
agency's response is due 10 days after the filing of the appellant's
pleading. If the appellant serves the agency with a pleading via
regular mail on October 15, the agency's deadline for filing a
response will be October 30, not October 25.
0
10. In Sec. 1201.24, revise paragraphs (a)(7) and (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
[[Page 62365]]
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. 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.
* * * * *
0
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.
(d) Mediation. Whenever an appeal is accepted into the Board's
Mediation Appeals Program (MAP), the processing of the appeal and all
deadlines are suspended until the mediator returns the case to the
judge. This provision does not apply where the parties enter into other
forms of alternative dispute resolution.
0
12. Add Sec. 1201.29 as follows:
Sec. 1201.29 Dismissal without prejudice.
(a) In general. Dismissal without prejudice is a procedural option
that allows for the dismissal and subsequent refiling of an appeal.
(b) Procedure. Dismissal without prejudice may be granted on the
judge's own motion or upon request by either party. The decision
whether to dismiss an appeal without prejudice is committed to the
sound discretion of the judge, and may be granted when the interests of
fairness, due process, and administrative efficiency outweigh any
prejudice to either party.
(c) Refiling. Except in certain USERRA appeals under Part 1208
involving the use of military leave, a decision dismissing an appeal
without prejudice will include a date certain by which the appeal must
be refiled. The judge will determine whether the appeal must be refiled
by the appellant or whether it will be automatically refiled by the
judge as of a date certain. When a dismissal without prejudice is
issued over the objection of the appellant, the appeal will be
automatically refiled as of a date certain.
(d) Waiver. When a dismissed appeal must be refiled by the
appellant, requests for waiver of a late filing based upon good cause
will be liberally construed.
0
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 Sec. 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.
* * * * *
0
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 a deposition or 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). When a desired witness is employed by an agency who
is not a party to the Board proceeding, the requesting party may avail
itself of the provisions of sections 1201.81 to 1201.85 of this part
regarding subpoenas to ensure the attendance of the witness. In
addition, the Board and the parties will implement this provision, to
the maximum extent possible, to avoid conflict with other regulations
governing the production of Federal employees in matters in litigation.
* * * * *
0
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. The Board
may solicit amicus briefs on its own motion.
(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, in
its discretion, may invite an amicus curiae to participate in oral
argument in proceedings in which oral argument is scheduled.
0
16. In Sec. 1201.36, revise paragraph (a)(2) to read as follows:
Sec. 1201.36 Consolidating and joining appeals.
(a) * * *
(2) Joinder occurs when one person has filed two or more appeals
and they
[[Page 62366]]
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.
* * * * *
0
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. * * *
* * * * *
0
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.
* * * * *
0
19. In Sec. 1201.43, revise the introductory paragraph and add 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.
0
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 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.
0
21. Revise Sec. 1201.52 to read as follows:
Sec. 1201.52 Public hearings.
(a) Closing the hearing. Hearings are generally 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 a party, 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.
(b) Electronic devices. Absent express approval from the judge, no
two-way communications devices may be operated and/or powered on in the
hearing room; all cell phones, text devices, and all other two-way
communications devices shall be powered off 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 consent of the judge.
0
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.
(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. 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. Nonparties 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 regulations. A
nonparty 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. Nonparties 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.
(e) Official record. Hearing exhibits and pleadings that have been
accepted into the record, the official hearing record, if a hearing is
held, and all orders and decisions of the judge and the Board, make up
the official record of the case. Other than the Board's decisions, the
official record is not available for public inspection and copying. The
official record is, however, subject to requests under both the Freedom
of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a)
pursuant to the procedures contained in 5 CFR parts 1204 and 1205.
0
23. In Sec. 1201.58, revise paragraph (c) and add paragraph (d) 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:
(1) The party submitting it shows that the evidence or argument was
not readily available before the record closed; or
[[Page 62367]]
(2) It is in rebuttal to new evidence or argument submitted by the
other party just before the record closed.
(d) 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]
0
24. Remove Sec. 1201.62.
0
25. Amend Sec. 1201.71 by adding two new sentences at the end of the
section to read 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.
0
26. Revise Sec. 1201.73 to read as follows:
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 discoverable under section 1201.72;
(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 serve 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
(e)(1) and (e)(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.
0
27. In 1201.81, revise paragraph (c) to read as follows:
Sec. 1201.81 Requests for subpoenas.
* * * * *
(c) Relevance. The request must be supported by a showing that the
evidence sought is directly material to the issues involved in the
appeal.
* * * * *
0
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. The passage of time during any stay granted
under this section is not deemed, or accounted for, as a case
suspension under Sec. 1201.28 of this part. If the judge does not stay
the appeal, the Board may do so while an interlocutory appeal is
pending with it.
0
29. In Sec. 1201.101, revise paragraph (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.
0
30. In Sec. 1201.111, revise paragraph (a) to read as follows:
[[Page 62368]]
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. The Board satisfies its legal obligation under 5 U.S.C.
7701(b)(1) by making electronic copies of initial decisions available
to the Office of Personnel Management.
* * * * *
0
31. In Sec. 1201.112, revise paragraph (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.
* * * * *
0
32. In Sec. 1201.113, revise the introductory text, paragraph (a) and
add paragraph (f) to read as follows:
Sec. 1201.113 Finality of decision.
The initial decision of the judge will become the Board's final
decision 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. 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.
* * * * *
0
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 of why the evidence or argument was not presented before
the record below closed (see Sec. 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 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 Sec. 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 or 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.
(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 on or 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) of this
section 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:
The reasons for failing to request an extension before the deadline for
the submission, and 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
[[Page 62369]]
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 for review, whether computer
generated, typed, or handwritten, is limited to 30 pages or 7500 words,
whichever is less. A reply to a response to a petition for review is
limited to 15 pages or 3750 words, whichever is less. Computer
generated and typed pleadings must use no less than 12 point typeface
and 1-inch margins and must be double spaced and only use one side of a
page. The length limitation is 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 for a waiver as well as the desired length of the pleading and
are granted only in exceptional circumstances. The page and word limits
set forth above are maximum limits. Parties are not expected or
required to submit pleadings of the maximum length. Typically, a well-
written petition for review is between 5 and 10 pages long.
(i) Intervention. (1) By Director of OPM. The Director of OPM may
intervene in a case before the Board under the standards stated in 5
U.S.C. 7701(d). The notice of intervention is timely if it is filed
with the Clerk of the Board within 45 days of the date the petition for
review was filed. If the Director requests additional time for filing a
brief on intervention, the Board may, in its discretion, grant the
request. A party may file a response to the Director's brief within 15
days of the date of service of that brief. The Director must serve the
notice of intervention and the brief on all parties.
(2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special
Counsel may intervene as a matter of right, except as provided in
paragraph (i)(2)(ii) of this section. The notice of intervention is
timely filed if it is filed with the Clerk of the Board within 45 days
of the date the petition for review was filed. If the Special Counsel
requests additional time for filing a brief on intervention, the Board
may, in its discretion, grant the request. A party may file a response
to the Special Counsel's brief within 15 days of the date of service.
The Special Counsel must serve the notice of intervention and the brief
on all parties.
(ii) The Special Counsel may not intervene in an action brought by
an individual under 5 U.S.C. 1221, or in an appeal brought by an
individual under 5 U.S.C. 7701, without the consent of that individual.
The Special Counsel must present evidence that the individual has
consented to the intervention at the time the motion to intervene is
filed.
(3) Permissive intervenors. Any person, organization, or agency, by
motion made in a petition for review, may ask for permission to
intervene. The motion must state in detail the reasons why the person,
organization, or agency should be permitted to intervene. A motion for
permission to intervene will be granted if the requester shows that he
or she will be affected directly by the outcome of the proceeding. Any
person alleged to have committed a prohibited personnel practice under
5 U.S.C. 2302(b) may ask for permission to intervene.
(j) Service. A party submitting a pleading must serve a copy of it
on each party and on each representative, as required by paragraph
(b)(2) of Sec. 1201.26.
(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 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.
(l) Rejection for failure to comply. The Clerk of the Board may
reject material submitted for filing that does not substantially
conform to the procedural requirements of this subpart by issuing a
rejection letter advising the parties of the nature of the
nonconformity and the requirements and deadline for resubmission. Any
deadlines affected by the rejection will be addressed in the rejection
letter.
0
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 consider any issue in an appeal before it.
0
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 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
[[Page 62370]]
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 or cross petition for review and
has not provided the 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.
0
36. In Sec. 1201.117, revise paragraph (a)(1) to read as follows:
Sec. 1201.117 Board decisions; procedures for review or reopening.
(a) * * *
(1) Issue a decision that decides the case;
* * * * *
0
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]
0
38. In Sec. 1201.119(a), (b), and (d), remove the words ``final
order'' and add, in their place, the words ``final decision''.
0
39. In Sec. 1201.122, revise paragraph (b) and remove paragraphs (d)
and (e) to read 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 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 and the party's representative, as shown on the
certificate of service.
* * * * *
0
40. In Sec. 1201.128, revise paragraph (b) and remove paragraphs (d)
and (e) to read as follows:
Sec. 1201.128 Filing complaint; serving documents on parties.
* * * * *
(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.
* * * * *
0
41. In Sec. 1201.134, revise paragraph (d) and remove paragraphs (f)
and (g) to read 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.
* * * * *
0
42. In Sec. 1201.137, revise paragraph (c) and remove paragraphs (e)
and (f) to read as follows:
Sec. 1201.137 Covered actions; filing complaint; serving documents on
parties.
* * * * *
(c) Initial filing and service. The agency must file a copy 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 and the party's representative, as shown on the certificate of
service.
* * * * *
0
43. Revise Sec. 1201.142 to read as follows:
[[Page 62371]]
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 service
requirements of Sec. 1201.137 of this part apply. Such complaints
shall be adjudicated in the same manner as agency complaints under this
subpart.
0
44. In Sec. 1201.143, revise paragraph (c) and remove paragraphs (e)
and (f) to read as follows:
Sec. 1201.143 Right to hearing; filing complaint; serving documents
on parties.
* * * * *
(c) Initial filing and service. Except when filed electronically
under 1201.14, 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.
* * * * *
0
45. In Sec. 1201.153, revise paragraph (a)(2) to read as follows:
Sec. 1201.153 Contents of appeal.
(a) * * *
(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.
* * * * *
0
46. In Sec. 1201.154, revise the section heading and introductory
paragraph, and remove paragraph (d) and (e) to read as follows:
Sec. 1201.154 Time for filing appeal.
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:
* * * * *
0
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) When filed. The appellant's request for Board review must be
filed within 35 days after the date of issuance of the decision or, if
the appellant shows that he or she received the decision more than 5
days after the date of issuance, within 30 days after the date the
appellant received the decision.
(c) 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.
(d) Contents. The appellant must file the request with the Clerk of
the Board, Merit Systems Protection Board, 1615 M Street NW.,
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 agency decision to take the action, and other relevant documents.
Those documents may include a transcript or recording of the hearing.
(e) 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.
(f) 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.
0
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.
0
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
[[Page 62372]]
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.
* * * * *
0
50. In Sec. 1201.183, revise paragraphs (a)(2), (a)(5) through (a)(7),
(b), (c), (d), and add paragraphs (a)(8), (e), and (f) as follows:
Sec. 1201.183 Procedures for processing petitions for enforcement.
(a) * * *
(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
Sec. 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 Sec. Sec. 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.
(7) 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) of this
section.
(8) The complying party may file evidence and argument in response
to any submission described in paragraph (a)(6) of this section by
filing opposing evidence and argument with the Clerk of the Board
within 20 days of the date such submission is filed.
(b) Final Decision of noncompliance. If a party found to be in
noncompliance under paragraph (a)(5) of this section does not file a
timely pleading with the Clerk of the Board as required by paragraph
(a)(6) of this section, the findings of noncompliance become final and
the case will be processed under the enforcement provisions of
paragraph (c)(1) of this section.
(c) 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 1201.120 of this part.
(3) The Board's final decision on the issues of compliance is
subject to judicial review under Sec. 1201.120 of this part.
(d) 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.
(e) Certification to the Comptroller General. When appropriate, the
Board may certify to the Comptroller General of the United States,
under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a
certain Federal employee. This order may apply to any Federal employee,
other than a Presidential appointee subject to confirmation by the
Senate, who is found to be in noncompliance with the Board's order.
(f) Effect of Special Counsel's action or failure to act. Failure
by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C)
and subpart D of this part will not preclude the Board from taking
action under this subpart.
0
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)
* * * * *
0
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.
* * * * *
[[Page 62373]]
(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 appellant's veterans' preference rights.
0
53. In Sec. 1201.202, redesignate paragraph (d) as paragraph (e), and
add new paragraph (d) to read as follows:
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.
* * * * *
0
54. In Sec. 1201.204:
0
a. Remove the words ``consequential damages or compensatory damages''
wherever they appear, and add in their place, the words
``consequential, liquidated, or compensatory damages'', and;
0
b. Revise paragraph (h) introductory text 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:
* * * * *
Appendix III to Part 1201 [Removed and Reserved]
0
56. Remove and reserve Appendix III to Part 1201.
PART 1203--PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE
OFFICE OF PERSONNEL MANAGEMENT
0
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).
0
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
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS
EMPLOYMENT OPPORTUNITIES ACT
0
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.
0
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.
0
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 was 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.
0
62. In Sec. 1208.22, add a new paragraph (c) to read 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.
0
63. In Sec. 1208.23, revise paragraphs (a)(5) and (a)(6) to read as
follows:
Sec. 1208.23 Content of a VEOA appeal; request for hearing.
(a) * * *
(5) Evidence identifying the specific veterans' preference claims
that the appellant raised before the Secretary; and
(6)(i) Evidence that the Secretary has notified the appellant in
accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have
not resolved the complaint (a copy of the Secretary's notice satisfies
this requirement); or
(ii) Evidence that the appellant has provided written notice to the
Secretary of the appellant's intent to appeal to the Board, as required
by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to
the Secretary satisfies this requirement).
* * * * *
PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS
OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING
0
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.
0
65. Revise 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:
[[Page 62374]]
(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.
(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:
An appeal to the Board under 5 U.S.C. 7701; a negotiated grievance
under 5 U.S.C. 7121(d); or 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.
0
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 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.
* * * * *
0
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
[[Page 62375]]
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 is 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.
* * * * *
0
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. 2012-24130 Filed 10-11-12; 8:45 am]
BILLING CODE 7400-01-P