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Daily Rules, Proposed Rules, and Notices of the Federal Government

MERIT SYSTEMS PROTECTION BOARD

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

Practices and Procedures

AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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:mspb@mspb.gov.
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 atwww.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 theFederal 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 1200.4Petition 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 1201.3Appellate 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 McCraryv.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 1201.4General 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 coveredby 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 1201.14Electronic 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 1201.21Notice 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 addedreferences 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 1201.22Filing 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 1201.23Computation 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 1201.24Content 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.

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 1201.28Case 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 1201.29Dismissal 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 1201.31Representatives

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 1201.33Federal 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 apportionthese 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 toUnited 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 1201.34Intervenors 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 throughFederal Registernotices 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 1201.36Consolidating 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 1201.41Judges

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 1201.42Disqualifying 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 1201.43Sanctions

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 theproposed 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 1201.51Scheduling 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 1201.52Public 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 1201.53Record 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 orderthe 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 1201.56Burden 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 1201.58Closing 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 1201.62Producing 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 1201.71Purpose 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 1201.73Discovery 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.

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 § 1201.72(a) and (b)), the MSPB has modified paragraph (c)(1)(i), to refer back to 1201.72.

Section 1201.81Requests 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 1201.93Procedures

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 1201.101Explanation 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 1201.111Initial 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 1201.112Jurisdiction 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 1201.113Finality 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 avoidthis 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 1201.114Petition 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.See5 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 1201.115Criteria 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 oth