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email: nelahq@nelahq.org  www.nela.org  FAX 866.593.7521 

September 16, 2014

VIA e-mail to mspb@mspb.gov

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

Re: Response to Interim Final Rule, 79 Fed.Reg. 48,941-48,946

Docket No. MSPB-2014-0007-0001

Dear Mr. Spencer:

The National Employment Lawyers Association (NELA) respectfully submits the following 

comments in response to the Merit Systems Protection Board’s Interim Final Rule implementing 

Section 707 of the Veterans’ Access to Care through Choice, Accountability and Transparency 

Act of 2014, Pub.L. 113-146 (“Section 707”), published in the Federal Register on August 19, 

2014, 79 Fed.Reg. 48,941-48,946 (as amended 79 Fed.Reg. 49,423 (August 21, 2014)).

NELA is the largest professional membership organization in the country comprised of lawyers 

who represent employees in labor, employment, wage and hour, and civil rights disputes. NELA 

advances employee rights and serves lawyers who advocate for equality and justice in the 

American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of 

over 4,000 attorneys who are committed to working on behalf of those who have been illegally 

treated in the workplace. NELA has filed numerous amicus curiae briefs before the United States 

Supreme Court and other federal appellate courts regarding the proper interpretation of federal 

civil rights and worker protection laws, as well as undertaking other advocacy actions on behalf 

of workers throughout the United States. A substantial number of NELA members’ clients are 

federal employees, and thus we have an interest in the modifications to MSPB’s procedural 

regulations.

NELA appreciates the opportunity to provide suggestions concerning potential modifications to 

the Board’s procedural regulations for adverse action appeals. NELA strongly opposes Section 

707 as an abrogation of due process and as a slippery slope to eroding civil service protections; 

these comments on the Interim Final Rule should not be construed as any sort of endorsement by 

NELA of Section 707 itself, but instead merely NELA’s observations to assist the Board in its 

burdensome task of trying to implement Section 707 for as long as the statute remains on the 

books. NELA broadly concurs with the Board’s well-stated concerns regarding the likely 

unconstitutionality of Section 707. NELA also supports the Board’s attempt—in the face of 

harsh statutory restrictions—to preserve the semblance of the Board’s hearing process to the 
2

extent not prohibited by Section 707. NELA also strongly supports the language of 5 C.F.R. §

1210.20(c) that renders Section 707 decisions nonprecedental and un-citeable outside the Section 

707 context as perhaps the best way to limit the likely adverse impact of Section 707 decisions 

on the rest of the Board’s body of precedent.

NELA requests that the Board amend the interim 5 C.F.R. Part 1210 regulations to clarify that 

Section 707 procedures stand independent of—and do not truncate—causes of action which give 

rise to independent causes of action subject to procedural elections (for example, EEO claims, 

(b)(8) and (b)(9) Prohibited Personnel Practice claims subject to an Independent Right of Action

appeal, and USERRA claims) because they could also be raised as affirmative defenses in 

Otherwise Appealable Actions under Board jurisdiction. Given that the procedures under Section 

707 so severely truncate the process normally due to review removals, it is unfair to deem a 

Section 707 appeal as a procedural election to such proceedings. Accordingly, NELA urges the 

Board to adopt a new 5 C.F.R. § 1210.20(e) stating that, “5 CFR §§ 1201.3(c), 1201.154(a), 

1208.11, 1209.2(d) shall have no application to appeals under Section 707, and Section 707

appeals shall not be considered to be an election of remedies barring pursuit of other 

statutory or regulatory appeal or complaint processes.” The effect of this proposed rule

would be to preserve for whistleblowers the right to pursue a claim of reprisal under the 

Whistleblower Protection Act even if the Section 707 proceeding resulted in an adverse outcome 

(such as failure of the MSPB hearing judge to issue a decision within 21 days), to preserve the 

right of employees to pursue claims of discrimination through the EEOC-governed EEO process, 

and to preserve the rights of veterans to pursue their USERRA claims.

1

Further, to prevent independent claims from being impaired by factual findings coming from 

Section 707 proceedings—and to give full effect to the non-citation provision of 5 C.F.R. §

1201.20(c), NELA urges the Board to amend 5 C.F.R. § 1201.20(c) to state also that “A 

decision by an administrative judge under this Part shall not have the effect of res judicata 

or collateral estoppel in any proceeding not filed pursuant to 38 U.S.C. § 713(e)(2).” This 

rule flows naturally from the concept that res judicata cannot attach to proceedings that fail to 

comport with basic due process. See Hansberry v. Lee, 311 U. S. 32, 40 (1940). Finally, NELA 

also urges the Board to modify Part 1210 to state that Section 707 in no way modifies the 

Office of Special Counsel’s prosecutorial authority under 5 U.S.C. § 1215. NELA notes that 

these proposed modifications represent a reasonable interpretation of Section 707 under two

familiar canons of legislative interpretation. First, both the Board and its chief reviewing court, 

the U.S. Court of Appeals for the Federal Circuit, recognize the common law canon of expressio 

unius est exclusio alterius. See, e.g., Delalat v. Dept. of the Air Force, 557 F.3d 1342, 1344 

(Fed.Cir. 2009); Edwards v. Dept. of Homeland Security, 110 M.S.P.R. 243 (2008). Had 

Congress intended to abrogate fully the WPA, EEO statutes, or other laws for those employees 

covered by Section 707, or to truncate OSC’s prosecutorial authority, it could have easily done 

so in the same fashion that it abrogated the Board’s stay authority in 38 U.S.C. § 713(e)(4) 

 1 NELA contends it would be a perverse result for Pub.L. 113-146—a statute intended by 

Congress to protect veterans—to have the effect of stripping veterans of their protections for 

discrimination based on their uniformed service by truncating their rights to raise USERRA 

claims (and similarly objects to truncating rights arising under other anti-discrimination statutory 

remedies applicable to broader classes of employees, as more fully explained infra). 
3

Second, as the Board teaches, “It is a cardinal principle of statutory construction that repeals by 

implication are strongly disfavored and will not be found unless the intention of the legislature to 

repeal is clear and manifest.” Schott v. Dept. of Homeland Security, 97 M.S.P.R. 35 (2004) 

(citing Rodriguez v. United States, 480 U.S. 522, 524 (1987)). No provision of Pub.L. 113-146

expressly abrogates Title VII, the Age Discrimination in Employment Act, the Rehabilitation 

Act, the Genetic Information Nondiscrimination Act, the Whistleblower Protection Act or 

USERRA with regard to SES employees at the Department of Veterans Affairs, and so it is 

necessary to preserve affected employees’ rights under those statutes in order to avoid repeal by 

implication.

 

Turning to the issue of developing the factual record for Section 707 appeals, NELA 

recommends several modifications to strengthen the Part 1210 regulations. NELA commends 

the Board’s decision to require production of the Response File with the initial adverse action 

decision and prior to appeal under 5 C.F.R. § 1210.5(c). NELA urges the Board to help ensure a 

complete document production in the response file by amending the definition of “response file” 

in 5 C.F.R. § 1210.2(c) as follows (using standard editing notation for additions and deletions to 

text):

The term response file means all documents and evidence the 

Secretary of the Department of Veterans Affairs, or designee, used

or created in making the decision to remove or transfer an 

employee covered by this part. It also may shall 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 as well as any exculpatory evidence known to the 

Department of Veterans Affairs, and shall also include a copy of

the employee’s official personnel file and performance file, names 

of all decision-makers and advisors on the decision, non-privileged 

intra-agency communications (including email) about the decision, 

Department of Veterans Affairs policies related to the decision, 

and any available data on comparator employees.

This additional information would need to be produced by the Department of Veterans Affairs

either in the initial disclosure or in discovery under 5 C.F.R. § 1210.12.2 Because the written 

record in an adverse action is selectively collated by agency management solely to substantiate 

their adverse action decision, an expansive production not solely delimited to what the 

Department of Veterans Affairs wants to produce to justify its action is necessary to give a clear 

picture of the decisional process in lieu of the more expansive discovery process afforded under 

normal Board discovery procedures in 5 C.F.R. Part 1201. Further, a more expansive response 

file production may hypothetically reduce the burden on the Board in Section 707 cases through 

pre-appeal production of documents to employees that may well convince them that appeal in a 

given case might be unmeritorious, obviating the need for the appeal; absent this expanded 

 2 In the case of the official personnel folder and performance file, the employee would be 

also entitled to this information under the Privacy Act, 5 U.S.C. § 552a(d). 
4

definition, the employee would only receive that information after an appeal had been filed and 

discovery was underway.

As has been most often observed, depositions are the most valuable form of discovery for a 

number of reasons (including, for example, the ability to ask follow-up questions of the witness 

and the ability to lock in the witness’ testimony for purposes of trial preparation). Depositions 

are a unique discovery tool in their ability to explore issues of credibility by delving into the 

details of the recollections, motives, beliefs and experiences of the witness. It is natural that 

courts have favored depositions. Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (“It is 

very unusual for a court to prohibit the taking of a deposition and absent extraordinary 

circumstances, such an order would likely be in error”); accord Simmons Foods, Inc. v. Willis, et 

al., 191 F.R.D. 625, 630 (D. Kan. 2000) (“Courts do not favor thwarting a deposition”). 

Allowing the parties depositions would partially rebalance the procedural inequities among the 

parties. As in any adverse action the agency always has the ability to procure pre-adverse action 

witness statements and witness interviews through its internal investigations while the employee 

has no such opportunity. Because of the centrality of depositions to any discovery effort and 

these concerns of fairness, NELA strongly opposes the present 5 C.F.R. § 1210.12(d)(2), 

and urges the Board to add a new 5 C.F.R. § 1210.12(c)(4) permitting depositions. By 

enacting Section 707, Congress has expressed a sense of elevated importance for management of 

veterans’ services. That is all the more reason to assure that contested issues of performance, 

retaliation or deviations from policy be fully explored. If the Board deems some limit on 

depositions necessary, NELA proposes a limit of three (3) depositions for each side. In 

employment litigation, management actions are often the result of collaboration among managers 

and their superiors. Any number less than three would prevent an increasing number of 

appellants from finding key evidence of reprisal, disparate treatment or other highly relevant 

matters. Because of the lead time necessary to schedule depositions practicably, the Board 

should modify 5 CFR § 1210.12(c)(4) more specifically to allow the parties to note 

depositions prior to the initial status conference. NELA believes that, by doing so, it would 

be practicable for parties to complete depositions prior to hearing.3

 

On the related issue of discovery motions practice, the shortened time deadlines of a Section 707 

case present unique risks not fully addressed in the Interim Final Rule. In Section 707 cases, the 

normal information asymmetry in employment cases is further exacerbated by the short 

timeframes for discovery—leaving agencies the potential to sandbag appellants on discovery 

issues in hopes of running out the 21-day clock for the administrative judge to issue a decision 

on the appeal. To partially countervail this risk of prejudice, and to ensure that discovery 

objections are decided as soon as possible in this unique context, the Board should modify 5 

CFR 1210.12(b) to place the burden specifically on the Agency to move for a protective 

order if they are refusing to respond to a discovery request, rather than force the appellant 

to have to move to compel discovery. This modification would meaningfully put into force 38 

U.S.C. § 713(e)(6) by placing the burden of responding to discovery squarely on the Department 

 3 If the Board should decide to not authorize depositions (which NELA strenuously objects

to as agency-biased), it should clearly instruct administrative judges a party’s scope of permitted 

questioning at hearing should be the same as it would be at a deposition. 
5

of Veterans Affairs, as intended by Congress. Because additional documents are likely to be 

produced in discovery and additional witnesses identified in discovery, the Board should 

modify 5 C.F.R. § 1210.11(b) to allow parties to seek modification of their exhibit lists and 

witness lists prior to hearing. Finally, in the interest of gender neutrality in use of pronouns, 

NELA requests that the Board modify Example C from 5 C.F.R. § 1210.18(a) by rephrasing its 

last sentence to read “If the agency has not unduly delayed or refused to engage in discovery, the 

administrative judge may decline to impose sanctions and proceed to hearing for a determination 

on the merits.” 

Because of the limits on hearing time in Section 707 matters, NELA is concerned about the risk 

of employees not being given adequate time to present their case. The Board instructs that “The 

party having the burden of proof usually presents its case first. The other party then presents its 

case, including any affirmative defenses.” MSPB Judges’ Handbook, Ch. 10, § 9.b. With the 

agency holding the burden of proving its charges in Section 707 cases, it would be far too easy 

for the agency’s case in chief to consume the entire hearing day, leaving the employee no chance 

to present their own case in chief. In normal appeals, that risk is avoided because hearings can 

be easily continued into multiple days, but the statutory limits of Section 707 preclude that 

flexibility. To avoid depriving the employee of the chance to present a case in chief at 

hearing, NELA urges the Board to revise Part 1210 to add new sections 1210.17(f, g) as 

follows:

(f) Each side in the hearing shall be afforded at least three (3) hours which 

the party may allocate to opening statements, witness examination (including 

such direct, cross, redirect and recross examinations as the party may 

undertake), objections and arguments thereon, and closing arguments.

(g) If the witness has not been deposed by the examining party, the 

examination of a witness may include such examination as would ordinarily 

occur at a deposition and shall be permissible so long as questions are 

reasonably calculated to lead to admissible evidence.

While the statutory time pressure of Section 707 creates some inherent constraints on the 

hearing, administrative judges should do their best to allow each side to present their case as they 

see fit, and not micromanage the parties’ presentation of their respective cases. If the pressure is 

one of presentation time, then that time limit should be the only additional constraint (other than 

the normal rules of evidence) on the subjects, witnesses, evidence and issues a party can present. 

Accordingly, NELA urges the Board to modify Part 1210 to instruct administrative judges 

expressly to not bar parties from presenting subjects, witnesses, evidence or issues to the 

greatest extent practicable. Errors of this sort in the normal hearings process can be fixed by 

the Board on Petition for Review; with Section 707 barring Petitions for Review and making the 

administrative judge’s decision final, there is no opportunity to fix an improper exclusion or 

limitation later, necessitating the Board laying out a bright line rule in advance to correctly 

instruct its administrative judges.

The second two sentences of 5 C.F.R. § 1210.18(a) deviate from the statutory burdens of 

proof and thus NELA strongly urges their repeal. The language in question states:
6

[...] 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.

This provision is not required by the plain text of Section 707 itself, and NELA believes that it is 

not only unnecessary, but unfairly shifts the agency’s burden of proof onto the employee. 

Adding an explicit presumption in favor of the Agency flatly violates Section 707. Specifically, 

38 U.S.C. § 713(d)(2) applies 5 U.S.C. § 7701 to Section 707 proceedings—and Section 7701 

(as long construed by the Board and the Federal Circuit) places the burden of proof on the 

underlying adverse action on the Agency. See, e.g., Jackson v. Veterans Admin., 768 F.2d 1325, 

1329 (Fed. Cir. 1985) (“By seeking ‘review,’ an employee puts the agency in the position of a 

plaintiff bearing the burden of first coming forward with evidence to establish the fact of 

misconduct, the burden of proof, and the ultimate burden of persuasion, with respect to the basis 

for the charge or charges.”). The first sentence of 5 C.F.R. § 1210.18(a) adequately states the 

agency’s burden of proof, broadly tracking the burdens of proof under Section 77014

:

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.

Sentences 2-3 of 5 C.F.R. § 1210.18(a), however, do violence to this assignment of burdens of 

proof under 38 U.S.C. § 713(d)(2) and 5 U.S.C. § 7701. Expecting an agency to carry its burden 

is minimally reasonable within the civil service merit principles that still apply, even in the 

Section 707 context. For similar reasons, 5 C.F.R. § 1210.18(d) should also be quashed, as 

inconsistent with 38 U.S.C. § 713(d)(2), as shifting the burden of showing the 

reasonableness of the penalty from the agency to the employee, and as preventing the 

application of the mitigation analysis in the Board’s signal case of Douglas v. Veterans 

Administration, 5 M.S.P.R. 280 (1981) when not expressly required to do so by Section 707. 

Turning to the issue of hearing transcripts, NELA advises the Board of an omission in the Part 

1210 procedures that needs clarification. Specifically, 5 C.F.R. § 1210.17(e) provides that court 

reporters will be present at the hearing and 5 C.F.R. § 1210.19(b) authorizes transcribed bench 

decisions, but neither section provides what will happen to transcripts after the hearing in the 

same fashion as 5 C.F.R. § 1201.53 or similar provisions do outside of the Section 707 context. 

To address this, NELA urges the Board to promulgate a new 5 C.F.R. § 1210.17(g): “The 

agency shall pay for transcription of the hearing, and copies of the transcript and exhibits 

will be provided to the MSPB, all parties, the Inspector General of the Department of 

Veterans Affairs and the chair and ranking member of the House and Senate committees 

 4 Compare, e.g., 5 C.F.R. § 1210.18(a) (first sentence) and 5 C.F.R. § 1210.18(c) to 5 

U.S.C. § 7701(c). 
7

overseeing the Department of Veterans Affairs.” Through this rule and distribution of the 

fact-finding record, the expedited process will serve its proper role in the holding of all agency 

officials accountable for the actions addressed in the hearing. Providing for mandatory 

transcription and transmittal to Congress is also a natural extension of the active oversight role 

that Congress retained for itself in Section 707 cases, as specified in 38 U.S.C. § 713(c). 

Finally, NELA understands that Section 707 reflects an apparent congressional frustration with 

what it (erroneously) perceived as lengthy delays in the Board’s appeal processes. NELA 

members, however, have historically observed no such delay in cases they have litigated before 

the Board, at least prior to the furlough appeals from the 2013 sequestration. NELA firmly 

believes that difficulties presented in implementing adverse actions against SES employees at the 

Department of Veterans Affairs were based upon then-agency management’s unwillingness to 

utilize the preexisting ample statutory mechanisms for discipline of SES employees.

5

 The 

agency’s failure to initiate adverse actions was thus caused by a defect in agency managerial 

culture and lack of supervisory intent to hold other managers accountable, and not caused by any 

defect in preexisting civil service law. To the extent that the Board—due chiefly to backlogs 

related to furlough appeals from the 2013 sequestration—has suffered delays recently, they have 

been far less than those observed by NELA members elsewhere, such as in the federal-sector 

EEOC complaints process or in proceedings before the Department of Labor's Office of 

Administrative Law Judges (OALJ). NELA believes that provision of adequate funding and 

resources to administrative adjudication agencies, and not evisceration of substantive civil 

service protections or due process rights, is the solution for reducing delays in these 

administrative adjudications.

Again, NELA appreciates the opportunity to respond to the Advance Notice of Proposed 

Rulemaking, and wishes to thank the Board for its attention and consideration. 

Respectfully submitted, 

Terisa E. Chaw

Executive Director

 5 While the congressional response found at Section 707 and in the Interim Final Rule are 

designed with the hope that they will be used to root out abusive managers, this mechanism can 

just as easily be used by agency management to protect abusive managers and to suppress those 

who would tolerate whistleblowers in the interest of hiding corruption rather than reporting it. 

The Board needs to ensure that its administrative judges have an adversarially-developed record 

based on the most thorough discovery practicable to prevent the Department of Veterans Affairs 

from taking unjustified Section 707 actions, and thus resuming its modus operandus of shooting 

the messenger to hide continuing corruption from Congress and the voters.