This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

48941 

Vol. 79, No. 160 

Tuesday, August 19, 2014 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201 and 1210 

Practices and Procedures; Appeal of 

Removal or Transfer of Senior 

Executive Service Employees of the 

Department of Veterans Affairs 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Interim final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) hereby 

amends its rules of practice and 

procedure to adapt the Board’s 

regulations to legislative changes that 

have created new laws applicable to the 

removal or transfer of Senior Executive 

Service employees of the Department of 

Veterans Affairs. 

DATES: This interim final rule is 

effective on August 19, 2014. Submit 

written comments concerning this 

interim final rule on or before 

September 18, 2014. 

ADDRESSES: Submit your comments 

concerning this interim final rule by one 

of the following methods and in 

accordance with the relevant 

instructions: 

Email: mspb@mspb.gov. Comments 

submitted by email can be contained in 

the body of the email or as an 

attachment in any common electronic 

format, including word processing 

applications, HTML and PDF. If 

possible, commenters are asked to use a 

text format and not an image format for 

attachments. An email should contain a 

subject line indicating that the 

submission contains comments 

concerning the MSPB’s interim final 

rule. The MSPB asks that parties use 

email to submit comments if possible. 

Submission of comments by email will 

assist MSPB to process comments and 

speed publication of a final rule. 

Fax: (202) 653–7130. Faxes should be 

addressed to William D. Spencer and 

contain a subject line indicating that the 

submission contains comments 

concerning the MSPB’s interim final 

rule. 

Mail or other commercial delivery: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington DC 20419. 

Hand delivery or courier: Should be 

addressed to William D. Spencer, Clerk 

of the Board, Merit Systems Protection 

Board, 1615 M Street NW., Washington, 

DC 20419, and delivered to the 5th floor 

reception window at this street address. 

Such deliveries are only accepted 

Monday through Friday, 9 a.m. to 4:30 

p.m. Eastern Time, excluding Federal 

holidays. 

Instructions: As noted above, MSPB 

requests that commenters use email to 

submit comments, if possible. All 

comments received will be included in 

the public docket without change and 

will be made available online at the 

Board’s Web site, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information or other information whose 

disclosure is restricted by law. Those 

desiring to submit anonymous 

comments must submit them in a 

manner that does not reveal the 

commenter’s identity, include a 

statement that the comment is being 

submitted anonymously, and include no 

personally-identifiable information. The 

email address of a commenter who 

chooses to submit comments using 

email will not be disclosed unless it 

appears in comments attached to an 

email or in the body of a comment. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

phone: (202) 653–7200; fax: (202) 653– 

7130; or email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: 

This interim final rule is necessary to 

adapt the MSPB’s regulations to recent 

amendments to Federal law contained 

in section 707 of the Veterans’ Access to 

Care through Choice, Accountability, 

and Transparency Act of 2014, Public 

Law 113–146 (the Act). The Act was 

signed by the President on August 7, 

2014, and took effect on that same date. 

Summary of Section 707 of the Act 

The sole provision of the Act relevant 

to this interim final rule is section 707. 

Paragraph (a) of section 707 of the Act 

creates a new statute, 38 U.S.C. 713, 

which sets forth new rules for the 

removal or transfer of Senior Executive 

Service employees of the Department of 

Veterans Affairs (covered SES 

employees) for performance or 

misconduct and requires expedited 

review of such actions by the MSPB. 

Under 38 U.S.C. 713(a), the Secretary of 

the Department of Veterans Affairs may 

remove or transfer a covered SES 

employee if the Secretary determines 

that the covered employee’s 

performance or misconduct warrants 

such action. Covered employees have a 

right to appeal a removal or transfer to 

the MSPB pursuant to 38 U.S.C. 

713(d)(2)(A) and 5 U.S.C. 7701. Such an 

appeal must be filed with the MSPB 

within 7 days after the date of the 

removal or transfer. 38 U.S.C. 

713(d)(2)(B). Review of the removal or 

transfer must be undertaken by an 

MSPB administrative judge, and a 

decision must be issued by the MSPB 

administrative judge within 21 days 

after the appeal is filed. 38 U.S.C. 

713(e). If a decision is not issued within 

21 days, the Secretary’s decision is final. 

38 U.S.C. 713(e)(3). An administrative 

judge’s decision shall not be subject to 

further appeal. 38 U.S.C. 713(e)(2). 

Paragraph (b) of section 707 of the Act 

requires the MSPB to develop and to put 

into effect expedited procedures for 

processing appeals filed pursuant to 38 

U.S.C. 713 within 14 days of passage of 

the Act, specifies that 5 CFR 1201.22 is 

not applicable to appeals filed under 38 

U.S.C. 713, and authorizes the MSPB to 

waive any other regulation to provide 

the expedited review required under 38 

U.S.C. 713. Paragraph (b) also requires 

the MSPB to submit a report to Congress 

within 14 days that addresses the steps 

the Board is taking to conduct the 

expedited review required under the 

Act. The report must also identify any 

additional resources the Board 

determines to be necessary to complete 

expedited reviews. 

The MSPB currently plays an 

important role in protecting the rights of 

our nation’s veterans by adjudicating 

appeals filed under the Veterans 

Employment Opportunities Act and the 

Uniformed Services Employment and 

Reemployment Rights Act. In addition, 


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the Board Members and MSPB 

employees, including a significant 

number of veterans, support any 

comprehensive legislation that improves 

conditions for our nation’s veterans. 

Nevertheless, the MSPB has concerns 

regarding the constitutionality of section 

707 of the Act. Specifically, the MSPB 

questions the constitutionality of any 

provision of law that prohibits 

presidentially-appointed, Senateconfirmed Officers of the United States 

Government from carrying out the 

mission of the agency to which they 

were appointed and confirmed to lead. 

Justification for Interim Final Rule 

Effective Immediately 

Ordinarily, the Administrative 

Procedure Act (APA) requires an agency 

to provide notice of proposed 

rulemaking and a period of public 

comment before the promulgation of a 

new regulation. 5 U.S.C. 553(b) and (c). 

However, section 553(b) of the APA 

specifically provides that the notice and 

comment requirements do not apply: 

(A) To interpretative rules, general 

statements of policy, or rules of agency 

organization, procedure, or practice; or 

(B) when the agency for good cause 

finds (and incorporates the finding and 

a brief statement of reasons therefor in 

the rules issued) that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest. The APA also requires the 

publication of any substantive rule at 

least 30 days before its effective date, 5 

U.S.C. 553(d), except where the rule is 

interpretive, where the rule grants an 

exception or relieves a restriction, or ‘‘as 

otherwise provided by the agency for 

good cause found and published with 

the rule.’’ Id. 

A finding that notice and comment 

rulemaking is unnecessary must be 

‘‘confined to those situations in which 

the administrative rule is a routine 

determination, insignificant in nature 

and impact, and inconsequential to the 

industry and to the public.’’ Mack 

Trucks, Inc. v. Envtl. Prot. Agency, 682 

F.3d 87, 94 (D.C. Cir. 2012). The Board 

finds that publication of this interim 

final rule effective upon publication is 

warranted for several reasons. The 

procedures created in Part 1210 reflect 

changes that have already been enacted 

into law by the Act. Komjathy v. 

National Transp. Safety Bd., 832 F.2d 

1294, 1296–97 (D.C. Cir. 1987) (notice 

and comment unnecessary where 

regulation does no more than repeat, 

virtually verbatim, the statutory grant of 

authority); Gray Panthers Advocacy 

Comm. v. Sullivan, 936 F.2d 1284, 

1291–92 (D.C. Cir. 1991) (no reason 

exists to require notice and comment 

procedures where regulations restate or 

paraphrase the detailed requirements of 

the statute). 

The Act took effect upon signature by 

the President. Given the extremely 

limited time within which the Board 

was required to implement procedures 

to accommodate the expedited review 

required under the Act, the Board finds 

that good cause exists to publish these 

amendments to its regulations in an 

interim final rule that is effective 

immediately. The Board finds that this 

expedited rulemaking is necessary to 

reduce potential confusion among 

appellants and agency representatives 

caused by outdated regulations and 

ensure that procedures are in place to 

facilitate the expedited case processing 

required under the Act. Philadelphia 

Citizens in Action v. Schweiker, 669 

F.2d 877, 882–84 (3d Cir. 1982) (finding 

good cause to dispense with notice and 

comment where Omnibus Budget 

Reconciliation Act amendments enacted 

by Congress became effective by statute 

on a specific date, shortly after 

enactment). 

Summary of Amendments 

Section 1201.3 is amended to add 38 

U.S.C. 713 to the list of sources of MSPB 

appellate jurisdiction. 

Section 1210.1 sets forth the MSPB’s 

authority to issue decisions under 38 

U.S.C. 713 and notes several relevant 

provisions of that statute. 

Section 1210.2 defines several words 

and terms used in part 1210. 

Section 1210.3 addresses the 

applicability of 5 CFR part 1201 to 

appeals filed under part 1210. 

Section 1210.4 repeats the Act’s 

provision allowing the Board to waive 

any MSPB regulation to provide the 

expedited review required by the Act. 

Section 1210.5 sets forth certain items 

that must be included in an agency 

notice of removal or transfer issued 

pursuant to 38 U.S.C. 713. 

Section 1210.6 requires parties to use 

the MSPB e-filing system (e-Appeal 

Online), observe filing procedures 

ordered by the administrative judge, and 

check frequently to see whether 

additional pleadings or orders have 

been added to the e-Appeal Online 

Repository. 

Section 1210.7 addresses the 

appropriate place for filing appeals, 

time limits for filing an appeal and a 

response, and time limits for filing 

appeals not covered under part 1210. 

Section 1210.8 repeats the Act’s 

provision prohibiting an administrative 

judge from granting a stay request in an 

appeal covered under part 1210. 

Section 1210.9 requires the appellant 

to include the agency’s decision notice 

and response file with the initial appeal. 

Section 1210.10 states that motions 

challenging the designation of a 

representative must be filed within 3 

days of notification of the identity of the 

representative. 

Section 1210.11 sets forth procedures 

for initial status conferences, including 

scheduling, issues likely to be 

addressed, and the possibility of 

scheduling additional conferences. This 

regulation also recognizes the 

administrative judge’s discretion in 

addressing these matters. 

Section 1210.12 requires initial 

disclosures, sets forth discovery 

procedures, and notes the 

administrative judge’s authority to alter 

discovery procedures. 

Section 1210.13 requires the filing of 

non-discovery motions within 5 days of 

the initial status conference and allows 

2 days for filing an opposition. This 

regulation recognizes the administrative 

judge’s authority to alter these 

deadlines. 

Section 1210.14 advises the parties 

that administrative judges have the 

authority to impose sanctions for failure 

to meet deadlines or obey orders. The 

regulation also makes clear that 

deadlines will be strictly enforced due 

to the statutorily-required expedited 

nature of appeals under part 1210. 

Section 1210.15 repeats the Act’s 

provision requiring the agency to 

provide such information and assistance 

as are required to expedite the 

processing of appeals under part 1210. 

This regulation also requires the agency 

to advise the MSPB when it takes an 

action under 38 U.S.C. 713. 

Section 1210.16 states that 

intervenors and amici curiae are 

permitted to participate in appeals 

under part 1210, that motions to 

intervene and requests to participate 

must be filed at the earliest possible 

time, and that intervenors and amici 

curiae must comply with the expedited 

procedures applicable to appeals under 

part 1210. 

Section 1210.17 addresses an 

appellant’s right to a hearing under 5 

U.S.C. 7701, hearing procedures, and 

the responsibility of the MSPB to ensure 

the presence of a court reporter. 

Section 1210.18 addresses burdens of 

proof, standards of review, and review 

of penalties. 

Section 1210.19 contains procedures 

for the issuance of bench decisions. 

Section 1210.20 states that decisions 

by an administrative judge under this 

part are effective upon issuance and 

may be cited as persuasive authority in 

other appeals under part 1210 (but may 


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not be cited in appeals not filed under 

part 1210). This regulation also states 

that the MSPB retains jurisdiction 

following the issuance of a decision 

under part 1210 for purposes of 

enforcement of decisions and orders and 

attorney fees, witness fees, litigation 

expenses and damages. 

List of Subjects in 5 CFR Parts 1201 and 

1210 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, the Board amends 5 

CFR parts 1201 and 1210: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 1. 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. 

■ 2. Section 1201.3 is amended by 

revising paragraph (a)(10) to read as 

follows: 

§ 1201.3 Appellate jurisdiction. 

(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); 

Furlough of a career appointee (5 CFR 

359.805); Removal or transfer of a 

Senior Executive Service employee of 

the Department of Veterans Affairs (38 

U.S.C. 713 and 5 CFR part 1210); and 

* * * * * 

■ 3. Add a new part 1210 to read as 

follows: 

PART 1210—PRACTICES AND 

PROCEDURES FOR AN APPEAL OF A 

REMOVAL OR TRANSFER OF A 

SENIOR EXECUTIVE SERVICE 

EMPLOYEE BY THE SECRETARY OF 

THE DEPARTMENT OF VETERANS 

AFFAIRS 

Sec. 

1210.1 Authority to issue decisions under 

this part. 

1210.2 Definitions. 

1210.3 Application of practices and 

procedures to appeals filed under this 

part. 

1210.4 Waiver of MSPB regulations. 

1210.5 Determination of the Secretary 

effecting a removal or transfer; required 

notice of expedited procedures; initial 

disclosures. 

1210.6 Electronic filing procedures; 

expedited filing procedures. 

1210.7 Filing an appeal and a response to 

an appeal. 

1210.8 Stay requests. 

1210.9 Disclosures of information required 

with initial appeal. 

1210.10 Representatives. 

1210.11 Initial status conference; 

scheduling the hearing. 

1210.12 Discovery. 

1210.13 Deadlines for filing motions. 

1210.14 Sanctions for failure to meet 

deadlines. 

1210.15 Agency duty to assist in expedited 

review. 

1210.16 Intervenors and amici curiae. 

1210.17 Hearings. 

1210.18 Burden of proof, standard of 

review, and penalty. 

1210.19 Bench decisions. 

1210.20 Effective date of a decision issued 

by an administrative judge; continuing 

jurisdiction over certain ancillary 

matters. 

Authority: 5 U.S.C. 1204 and 7701, and 38 

U.S.C. 713. 

§ 1210.1 Authority to issue decisions 

under this part. 

(a) Under 38 U.S.C. 713(d)(2)(A), as 

created by the Veterans Access, Choice 

and Accountability Act of 2014 (the 

Act), an employee covered by this part 

may appeal a removal from the civil 

service or a transfer to a General 

Schedule position based upon 

performance or misconduct to the 

MSPB. 

(b) MSPB administrative judges have 

the authority to issue a decision in an 

appeal covered by this part. (38 U.S.C. 

713(e)(1)). 

(c) The administrative judge’s 

authority under this part to issue a 

decision terminates following the 

passage of 21 days after the appeal is 

initially filed. (38 U.S.C. 713(e)(3)). 

(d) An administrative judge’s decision 

in an appeal filed under this part is not 

subject to any further appeal. (38 U.S.C. 

713(e)(2)). 

(e) This part applies only to the 

Secretary’s authority to remove or 

transfer an employee covered under 38 

U.S.C. 713 and the Board’s authority to 

review such decisions. This authority is 

in addition to the authority already 

provided the agency in 5 U.S.C. 3592 

and the authority provided the Board 

under 5 U.S.C. 7541, et seq. to take an 

adverse action against an employee. (38 

U.S.C. 713(f)). 

§ 1210.2 Definitions. 

(a) The term employee covered by this 

part means an individual (a career 

appointee as that term is defined in 5 

U.S.C. 3132(a)(4) or an individual who 

occupies an administrative or executive 

position and is appointed under 38 

U.S.C. 7306(a) or 7501(1)) employed in 

a Senior Executive Service position at 

the Department of Veterans Affairs. (38 

U.S.C. 713(a) and (g)). 

(b) The term administrative judge 

means a person experienced in hearing 

appeals and assigned by the Board to 

hold a hearing and decide an appeal 

arising under this part. (38 U.S.C. 

713(e)(1)). 

(c) The term response file means all 

documents and evidence the Secretary 

of the Department of Veterans Affairs, or 

designee, used in making the decision to 

remove or transfer an employee covered 

by this part. It also may include any 

additional documents or evidence that 

the agency would present in support of 

the Secretary’s determination in the 

event that an appeal is filed. 

(d) The term misconduct includes 

neglect of duty, malfeasance, or failure 

to accept a directed reassignment or to 

accompany a position in a transfer of 

function. (38 U.S.C. 713(g)(2)). 

(e) The term transfer means the 

transfer of an employee covered by this 

part to a General Schedule position. (38 

U.S.C. 713(a)(1)(B)). 

§ 1210.3 Application of practices and 

procedures to appeals filed under this part. 

(a) The following provisions of part 

1201 of this chapter are inapplicable to 

appeals filed under this part: 

(1) Section 1201.22 (inapplicable to 

appeals brought under this part 

pursuant to Public Law 113–146, 

section 707(b)(2)); 

(2) Section 1201.27 (class appeals are 

not allowed as such appeals cannot be 

adjudicated within 21 days); 

(3) Section 1201.28 (case suspensions 

are not allowed because they are 

inconsistent with the requirement to 

adjudicate appeals under this part 

within 21 days); 

(4) Section 1201.29 (dismissals 

without prejudice are not allowed 

because those procedures are 

inconsistent with the requirement to 

adjudicate appeals under this part 

within 21 days); 

(5) Section 1201.56 (this regulation is 

not controlling; parties should refer to 

§ 1210.18); 

(6) Sections 1201.91 through 1201.93 

(interlocutory appeals are not allowed 

because the Board lacks authority to 

review appeals filed under this part); 

(7) Sections 1201.114 through 1201.20 

(petitions for review are not allowed 

because the decisions in appeals filed 

under this part are not subject to further 

appeal) (38 U.S.C. 713(e)(2)); 

(8) Sections 1201.121 through 

1201.145 (procedures for other original 

jurisdiction cases are not relevant to 

appeals filed under this part); 

(9) Sections 1201.152, 1201.153(b), 

1201.154, 1201.155, 1201.156, 1201.157, 

and 1201.161 (these provisions are 

inapplicable to appeals filed under 38 

U.S.C. 713). 


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(b) Except as modified by this part, 

the remaining relevant provisions of 

part 1201 of this chapter are applicable 

to appeals filed under this part. 

§ 1210.4 Waiver of MSPB regulations. 

The Board may waive any MSPB 

regulation in order to provide for the 

expedited review of an appeal covered 

by this part. Public Law 113–146, 

section 707(b)(3). 

§ 1210.5 Determination of the Secretary 

effecting a removal or transfer; required 

notice of expedited procedures; initial 

disclosures. 

An agency notice of a removal or 

transfer pursuant to 38 U.S.C. 713 must 

include the following: 

(a) A statement identifying the action 

taken based on the Secretary’s 

determination, stating the factual 

reasons for the charge(s), and statement 

setting forth the basis for the Secretary’s 

determination that the performance or 

misconduct warrants removal or 

transfer. 

(b) Notice regarding the Board’s 

expedited procedures applicable to an 

appeal. Such notice shall include a copy 

of this part and access to the remainder 

of the Board’s adjudicatory regulations. 

(c) A copy of the materials the 

Secretary relied upon to remove or 

transfer the appellant (normally referred 

to as the ‘‘response file’’). 

(d) The name and contact information 

of the agency’s representative for any 

appeal filed with the MSPB under this 

part. 

(e) Notice that MSPB appeals must be 

filed with the appropriate Board 

regional or field office. See § 1201.4(d) 

of this chapter. 

§ 1210.6 Electronic filing procedures; 

expedited filing procedures. 

(a) Required use of MSPB e-filing 

system. All parties must electronically 

file all pleadings and documents listed 

in 5 CFR 1201.14(b) by using the 

MSPB’s e-filing system (e-Appeal 

Online). An attempt to file an appeal 

using any other method will result in 

rejection of the appeal and will not 

constitute compliance with the 7-day 

filing deadline under the Act, except in 

the limited circumstances described in 

§ 1210.7(c). 

(b) Expedited filing and service 

requirements. All documents and 

pleadings not otherwise covered in 

paragraph (a) of this section must be 

filed in accordance with any expedited 

filing and service procedures ordered by 

the administrative judge. 

(c) The parties should frequently 

check the Repository on e-Appeal 

Online to ensure that they are aware of 

new pleadings, orders and submissions 

in a timely fashion. A party’s failure to 

check for updates on e-Appeal Online 

may lead to a denial of a request to 

extend a deadline and/or the imposition 

of sanctions. 

§ 1210.7 Filing an appeal and a response 

to an appeal. 

(a) Place for filing an appeal and a 

response. Appeals, and responses to 

those appeals, must be filed with the 

appropriate Board regional or field 

office. See § 1201.4(d) of this chapter. 

(b) Time for filing an appeal and 

agency response. An appeal of an action 

taken pursuant to 38 U.S.C. 713 must be 

filed no later than 7 days after the 

effective date of the removal or transfer 

being appealed. (38 U.S.C. 713(d)(2)(B)). 

An agency response must be filed 

within 3 days of the filing of the appeal. 

(c) Timeliness of appeals. If an 

appellant does not submit an appeal 

within 7 days of the effective date of the 

action it will be dismissed as untimely 

filed. This deadline cannot be extended 

for any reason. (38 U.S.C. 713(d)(2)(B)). 

However, if an appellant establishes that 

he or she attempted to file an appeal 

using e-Appeal Online within the 7-day 

deadline and that the filing was 

unsuccessful due to a problem with eAppeal Online, the administrative judge 

may deem the filing to have been 

completed on the date it was attempted, 

provided the appellant took reasonable 

steps to immediately advise the MSPB 

of the failed attempt to file the appeal 

using e-Appeal Online. The 21-day 

deadline for issuance of a decision will 

commence on the day such an appeal 

was deemed to have been filed. 

(d) Time limits for other appeals not 

brought under 38 U.S.C. 713. The time 

limit prescribed by paragraph (b) of this 

section for filing an appeal does not 

apply where a law or regulation 

establishes a different time limit or 

where there is no applicable time limit. 

No time limit applies to appeals under 

the Uniformed Services Employment 

and Reemployment Rights Act (Pub. L. 

103–353), as amended; see part 1208 of 

this chapter for the statutory filing time 

limits applicable to appeals under the 

Veterans Employment Opportunities 

Act (Pub. L. 105–339); see part 1209 of 

this chapter for the statutory filing time 

limits applicable to whistleblower 

appeals and stay requests. 

§ 1210.8 Stay requests. 

An administrative judge may not 

grant a stay request in any appeal 

covered by this part. (38 U.S.C. 

713(e)(4)). 

§ 1210.9 Disclosures of information 

required with initial appeal. 

An appellant must attach to his or her 

appeal a copy of the agency’s decision 

notice and the response file that the 

agency is required to disclose to the 

appellant pursuant to § 1210.5(c). 

§ 1210.10 Representatives. 

Motions challenging the designation 

of a representative must be filed within 

3 days of the submission of the 

designation of representative notice. 

§ 1210.11 Initial status conference; 

scheduling the hearing. 

This regulation contains guidance for 

the parties concerning when initial 

status conferences will occur and the 

issues that will be addressed. In any 

appeal under this part the 

administrative judge retains complete 

discretion in deciding when to schedule 

the initial status conference and in 

selecting the issues to be addressed. 

(a) Scheduling the conference. The 

administrative judge will schedule the 

initial status conference. Generally, the 

parties should expect that the initial 

status conference will take place within 

a week after the appeal is filed. 

(b) Issues likely to be addressed at the 

initial status conference. The parties 

should be prepared to discuss the 

following issues at the initial status 

conference: 

(1) The hearing date and anticipated 

length of the hearing; 

(2) Settlement; 

(3) Discovery deadlines and disputes; 

(4) Admission or rejection of exhibits; 

(5) Witnesses to be called to testify at 

the hearing; 

(6) Motions; and, 

(7) Any other issues identified by, or 

that require the involvement of, the 

administrative judge. 

(c) Additional status conferences. The 

administrative judge may schedule 

additional status conferences as 

necessary to fully develop the case for 

hearing. 

§ 1210.12 Discovery. 

Except as noted in paragraphs (a) 

through (d) of this section, 5 CFR 

1201.71 through 1201.75 apply to 

appeals filed under this part. 

(a) Initial disclosures. The parties 

must make the following initial 

disclosures prior to the initial status 

conference. 

(1) Agency. The agency must provide: 

(i) A copy of all documents in the 

possession, custody or control of the 

agency that the agency may use in 

support of its claims or defenses; and, 

(ii) The name and, if known, address, 

telephone number and email address for 


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each individual likely to have 

discoverable information that the 

agency may use in support of its claims 

or defenses. 

(2) Appellant. The appellant must 

provide: 

(i) A copy of all documents in the 

possession, custody or control of the 

appellant that the appellant may use in 

support of his or her claims or defenses; 

and, 

(ii) The name and, if known, address, 

telephone number and email address for 

each individual likely to have 

discoverable information that the 

appellant may use in support of his or 

her claims or defenses. 

(b) Time limits. The time limits set 

forth in § 1201.73 of this chapter shall 

not apply to an appeal under this part. 

The following time limits apply to 

appeals under this part: 

(1) Discovery requests must be served 

on the opposing party prior to the initial 

status conference. 

(2) Responses to discovery requests 

must be served on the opposing party no 

later than 3 days after the initial status 

conference. 

(3) Discovery motions, including 

motions to compel, must be filed no 

later than 5 days after the initial status 

conference. 

(c) Methods of discovery. Parties may 

use one or more of the following 

methods of discovery provided under 

the Federal Rules of Civil Procedure: 

(1) Written interrogatories; 

(2) Requests for production of 

documents or things for inspection or 

copying; 

(3) Requests for admissions. 

(d) Limits on discovery requests. 

Absent approval by the administrative 

judge, discovery is limited as follows: 

(1) Interrogatories may not exceed 10 

in number, including all discrete 

subparts; 

(2) The parties may not take 

depositions; and 

(3) The parties may engage in only 

one round of discovery. 

(e) Administrative judge’s discretion 

to alter discovery procedures. An 

administrative judge may alter 

discovery procedures in order to 

provide for the expedited review of an 

appeal filed under this part. 

§ 1210.13 Deadlines for filing motions. 

(a) Motions. All non-discovery 

motions must be filed no later than 5 

days after the initial status conference. 

(b) Objections. Objections to motions 

must be filed no later than 2 days after 

the motion is filed. 

(c) Administrative judge’s discretion 

to alter deadlines. An administrative 

judge may exercise discretion to alter or 

waive these deadlines. 

§ 1210.14 Sanctions for failure to meet 

deadlines. 

Section 1201.43 of this chapter, which 

allows administrative judges to impose 

sanctions on parties that do not comply 

with orders or do not file pleadings in 

a timely fashion, shall apply to any 

appeal covered by this part. Strict 

enforcement of deadlines will be 

required to meet the 21-day deadline for 

issuance of a decision by the 

administrative judge. 

§ 1210.15 Agency duty to assist in 

expedited review. 

(a) As required by 38 U.S.C. 713(e)(6), 

the agency is required to provide the 

administrative judge such information 

and assistance as may be necessary to 

ensure that an appeal covered by this 

part is completed in an expedited 

manner. 

(b) The agency must promptly notify 

the MSPB whenever it issues a 

Secretarial determination subject to 

appeal under this part. Such notification 

must include the location where the 

employee worked, the type of action 

taken, and the effective date of the 

action. Notification should be sent to 

VASES@mspb.gov. 

§ 1210.16 Intervenors and amici curiae. 

Intervenors and amici curiae are 

permitted to participate in proceedings 

under this part as allowed in § 1201.34 

of this chapter. Motions to intervene 

and requests to participate as an amicus 

curiae must be filed at the earliest 

possible time, generally before the 

initial status conference. All intervenors 

and amici curiae must comply with the 

expedited procedures set forth in this 

part and all orders issued by the 

administrative judge. The deadlines 

applicable to the timely adjudication of 

cases under this part will not be 

extended to accommodate intervenors 

or amici curiae. 

§ 1210.17 Hearings. 

(a) Right to a hearing. An appellant 

has a right to a hearing as set forth in 

5 U.S.C. 7701(a). 

(b) General. Hearings may be held inperson, by video or by telephone at the 

discretion of the administrative judge. 

(c) Scheduling the hearing. The 

administrative judge will set the hearing 

date during the initial status conference. 

A hearing generally will be scheduled to 

occur no later than 18 days after the 

appeal is filed. 

(d) Length of hearings. Hearings 

generally will be limited to no more 

than 1 day. The administrative judge, at 

his or her discretion, may allow for a 

longer hearing. 

(e) Court reporters. The MSPB will 

contract for a court reporter to be 

present at hearings. 

§ 1210.18 Burden of proof, standard of 

review, and penalty. 

(a) Agency. Under 5 U.S.C. 7701(c)(1), 

and subject to exceptions stated in 

paragraph (c) of this section, the agency 

(the Department of Veterans Affairs) 

bears the burden of proving that an 

appellant engaged in misconduct, as 

defined by 38 U.S.C. 713(g)(2), or poor 

performance, and the Secretary’s 

determination as to such misconduct or 

poor performance shall be sustained 

only if the factual reasons for the 

charge(s) are supported by a 

preponderance of the evidence. Proof of 

misconduct or poor performance shall 

create a presumption that the 

Secretary’s decision to remove or 

transfer the appellant was warranted. 

The appellant may rebut this 

presumption by establishing that the 

imposed penalty was unreasonable 

under the circumstances of the case. 

The following examples illustrate the 

application of this rule: 

Example A. The Secretary determines that 

the appellant intentionally submitted false 

data on the agency’s provision of medical 

care and that the misconduct warrants 

transfer to a General Schedule position. The 

appellant files an appeal with the Board. 

Following a hearing, the administrative judge 

finds that the agency proved its charge by 

preponderant evidence. The appellant’s 

transfer is presumed to be warranted, absent 

a showing that such a penalty was 

unreasonable under the circumstances of the 

case. 

Example B. The Secretary determines that 

the appellant’s performance or misconduct 

warrants removal, but the notice of the 

decision and the agency’s response file do 

not identify any factual reasons supporting 

the Secretary’s determination. The appellant 

files an appeal with the Board. The 

administrative judge may not sustain the 

removal because the agency, in taking its 

action, provided no factual reasons in 

support of its charge(s). 

Example C. The Secretary determines that 

the appellant’s performance or misconduct 

warrants removal. The appellant files an 

appeal with the Board. During the processing 

of the appeal, the appellant contends that the 

agency unduly delayed or refused to engage 

in discovery. If the agency has obstructed the 

appeal from being adjudicated in a timely 

fashion, the administrative judge may impose 

sanctions, up to and including the drawing 

of adverse inferences or reversing the 

removal action. Because the administrative 

judge finds that the agency has not unduly 

delayed or refused to engage in discovery, he 

declines to impose sanctions and affirms the 

removal. 

Example D. The Secretary decides to 

remove the appellant based on a charge that 

the appellant engaged in a minor infraction 

that occurred outside the workplace. The 


wreier-aviles on DSK5TPTVN1PROD with RULES
48946 Federal Register / Vol. 79, No. 160 / Tuesday, August 19, 2014 / Rules and Regulations 

appellant files an appeal with the Board. 

Following a hearing, the administrative judge 

finds that the agency proved its charge and 

further finds that the appellant established 

that the penalty of removal was unreasonable 

under the circumstances of the case. The 

presumption that the Secretary’s decision to 

remove was warranted is rebutted and the 

action is reversed. 

(b) Appellant. The appellant (a career 

member of the agency’s Senior 

Executive Service corps) has the burden 

of proof, by a preponderance of the 

evidence, concerning: 

(1) Issues of jurisdiction; 

(2) The timeliness of the appeal; and 

(3) Affirmative defenses. 

(c) Affirmative defenses. Under 5 

U.S.C. 7701(c)(2), the Secretary’s 

determination may not be sustained, 

even where the agency met the 

evidentiary standard stated in paragraph 

(a) of this section, if the appellant shows 

that: 

(1) The agency, in rendering its 

determination, committed harmful error 

in the application of its procedures; 

(2) The decision was based on any 

prohibited personnel practice described 

in 5 U.S.C. 2302(b); or 

(3) The determination is not otherwise 

in accordance with law. 

(d) Penalty review. As set forth in 

paragraph (a) of this section, proof of the 

agency’s charge(s) by preponderant 

evidence creates a presumption that the 

Secretary’s decision to remove or 

transfer the appellant was warranted. 

An appellant may rebut this 

presumption by establishing that the 

imposed penalty was unreasonable 

under the circumstances of the case, in 

which case the action is reversed. 

However, the administrative judge may 

not mitigate the Secretary’s decision to 

remove or transfer the appellant. 

§ 1210.19 Bench decisions. 

(a) General. The administrative judge 

may issue a bench decision at the close 

of the hearing. A bench decision is 

effective when issued. 

(b) Transcription of bench decision. A 

transcribed copy of the decision will be 

prepared by the court reporter under the 

administrative judge’s supervision to 

memorialize the oral decision. The 

official issuance of a bench decision is 

the date the administrative judge 

announces the decision and not the date 

the administrative judge signs the 

transcription. 

§ 1210.20 Effective date of a decision 

issued by an administrative judge; 

continuing jurisdiction over certain 

ancillary matters. 

(a) A decision by an administrative 

judge under this part will be effective 

upon issuance. 

(b) Pursuant to 38 U.S.C. 713(e)(2), a 

decision by the administrative judge is 

not subject to further appeal. 

(c) A decision by the administrative 

judge is nonprecedential. Such a 

decision may be cited as persuasive 

authority only in an appeal filed 

pursuant to 38 U.S.C. 713(e)(2). Such a 

decision may not be cited in any appeal 

not filed pursuant to 38 U.S.C. 713(e)(2). 

(d) Following issuance of a decision 

by the administrative judge under this 

part, the MSPB retains jurisdiction over 

the appeal covered by this part for 

purposes of the following ancillary 

matters: 

(1) Enforcement of decisions and 

orders. The procedures set forth in 

subpart F of 5 CFR part 1201 are 

applicable to petitions for enforcement 

filed after the administrative judge 

issues a decision in an appeal filed 

under this part; and, 

(2) Attorney fees, witness fees, 

litigation expenses, and damages. The 

procedures set forth in subpart H of 5 

CFR part 1201 (attorney fees, costs, 

expert witness fees, and litigation 

expenses, where applicable, and 

damages) are applicable to requests for 

fees and damages filed after the 

administrative judge issues a decision in 

an appeal filed under this part. (5 U.S.C. 

7701(g)). 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2014–19589 Filed 8–15–14; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 27 

[Docket No. FAA–2014–0596; Special 

Conditions No. 27–035–SC] 

Special Conditions: Robinson Model 

R66 Helicopter, § 27.1309, Installation 

of HeliSAS Autopilot and Stabilization 

Augmentation System (AP/SAS) 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final special conditions; request 

for comments. 

SUMMARY: These special conditions are 

issued for the modification of the 

Robinson Helicopter Company Model 

R66 helicopter. This model helicopter 

will have a novel or unusual design 

feature after installation of the HeliSAS 

helicopter autopilot/stabilization 

augmentation system (AP/SAS) that has 

potential failure conditions with more 

severe adverse consequences than those 

envisioned by the existing applicable 

airworthiness regulations. These special 

conditions contain the added safety 

standards the Administrator considers 

necessary to ensure the failures and 

their effects are sufficiently analyzed 

and contained. 

DATES: The effective date of these 

special conditions is August 7, 2014. We 

must receive your comments on or 

before October 3, 2014. 

ADDRESSES: Send comments identified 

by docket number [FAA–2014–0596] 

using any of the following methods: 

• Federal eRegulations Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30, U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery of Courier: Deliver 

comments to the Docket Operations, in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC between 9 

a.m., and 5 p.m., Monday through 

Friday, except federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Privacy: The FAA will post all 

comments it receives, without change, 

to http://regulations.gov, including any 

personal information the commenter 

provides. Using the search function of 

the docket Web site, anyone can find 

and read the electronic form of all 

comments received into any FAA 

docket, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). DOT’s 

complete Privacy Act Statement can be 

found in the Federal Register published 

on April 11, 2000 (65 FR 19477–19478), 

as well as at http://DocketsInfo.dot.gov. 

Docket: Background documents or 

comments received may be read at 

http://www.regulations.gov. Follow the 

online instructions for accessing the 

docket or go to the Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE., Washington, DC, between 9 

a.m., and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Mark Wiley, Aviation Safety Engineer, 

FAA, Rotorcraft Directorate, Regulations 

and Policy Group (ASW–111), 2601 

Meacham Blvd., Fort Worth, Texas 

76137; telephone (817) 222–5134; 

facsimile (817) 222–5961; or email to 

mark.wiley@faa.gov. 

SUPPLEMENTARY INFORMATION: 


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