Changes in the Final Rule

1200.4 Petition for Rulemaking. 

* This new regulation sets forth procedures for filing and MSPB review of 

rulemaking petitions filed pursuant to 5 U.S.C. § 553(e). 

* The MSPB anticipates that this amendment will generate additional

suggestions for improving MSPB regulations. The MSPB will post all 

rulemaking petitions on its website. 

1201.3 Appellate Jurisdiction. 

* Explains that section 1201.3 is not a source of Board jurisdiction and 

directs parties to consult the cited laws and regulations need to determine 

the nature of the Board’s jurisdiction. 

* Cautions that jurisdiction depends on the appellant’s status, e.g., the type 

of employment held, as well as the nature of the action or decision being 

appealed. 

* List of appealable actions in subsection (a) has been revised to make it

more understandable to laypersons. 

1201.4 General definitions. 

* The definition of “date of service” has been modified to clarify that the 

phrase refers to when a document is sent out, not when it is received. 

1201.21 Notice of appeal rights. 

* Requires agencies to provide notification regarding elections between the 

IRA process and the regular appeal process when an allegation is made that 

an otherwise appealable action was taken in retaliation for protected 

whistleblowing. See 1209.2 regarding elections under 5 U.S.C. § 7121(g). 

* Requires agencies to give appellants notice of their options regarding 

claims of discrimination (EEOC mixed case complaint, Board appeal, or 

grievance). 
1201.22 Filing an appeal and responses to appeals. 

* States that a decision notice sent to the appellant’s address of record is 

“presumed to have been duly delivered to the addressee.” This is a 

rebuttable presumption. 

* Provides that an appellant “may not avoid service of a properly addressed 

and mailed decision by intentional or negligent conduct which frustrates 

actual service,” and provides examples of how the regulation will be 

applied.

1201.23 Computation of time. 

* Provides that “[u]nless a different deadline is specified by the Board or its 

designee, 5 days are added to a party’s deadline for responding to a 

document served on the party by mail” to redress perceived inequities 

resulting from a party serving a pleading on the other party by regular mail. 

1201.24 Content of an appeal; right to a hearing. 

* Reduces the scope of requested attachments from any relevant documents” 

to a copy of the notice of proposed action, the agency decision and, if 

available, the SF-50 or similar notice of personnel action. The Board 

believes that these are all that is necessary in order to docket a new appeal 

and issue appropriate acknowledgment and jurisdictional orders. This 

amendment will limit duplicative filings of the same documents. 

* The language regarding the right to a hearing was clarified to state that 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.”

1201.28 Case Suspension procedures.

* The revised regulation allows for two suspension periods of up to 30 days 

each, instead of the current single suspension period. Suspensions are most 

often used by the parties to complete discovery and explore settlement. 

1201.29 Dismissals without prejudice. 

* This new regulation largely codifies existing case law and should be 

helpful to litigants, especially pro se appellants. 
1201.43 Sanctions. 

* The provisions regarding sanctions for contumacious conduct by parties 

and representatives were moved from section 1201.31 to this section. 

* Gives explicit authority for suspending or terminating a hearing that has 

begun and deletes the requirement of a show cause order in favor a general 

requirement that, before imposing a sanction, the judge must provide a 

prior warning and document the reasons for any sanction. 

* Eliminates the provision for the automatic approval of a request for an 

interlocutory appeal of a sanction for contumacious behavior. The MSPB 

feels review of sanctions of this nature via petition for review should be 

sufficient and delaying the entire proceeding to adjudicate the 

appropriateness of a sanction is not warranted. 

1201.51 Scheduling the hearing (and Appendix III, Hearing Locations). 

* In an effort to increase flexibility to hold hearings on locations where the 

travel costs will be lowest, the comprehensive list of fixed hearing 

locations in Appendix III has been deleted in favor of a statement in 

section 1201.51 that the Board “has established certain approved hearing 

locations, which are listed on the Board’s public website (www.mspb.gov). 

* Parties, for good cause, may file motions requesting a different hearing 

location. Rulings on those motions will be based on a showing that a 

different location will be more advantageous to all parties and to the 

Board.” 

1201.53 Record of proceedings.

* Clarifies the distinction between recordings (oral) and transcripts (written). 

* Provides that the Board will provide recordings and already existing 

transcripts free of charge. 

* Deletes provision in proposed rule that would have allowed MSPB to order 

an agency to pay for a partial or complete hearing transcript. 

1201.56 Burden and degree of proof for establishing jurisdiction.

* The proposed rule attempted to clarify the burdens of proof for establishing 

jurisdiction and address conflict with Board case law that provides for 
establishing some jurisdictional elements by making nonfrivolous 

allegations. The proposed rule is withdrawn. MSPB plans to address this 

regulation in a rulemaking in the spring or summer of 2013. 

1201.73 Discovery procedures. 

 * Eliminates the initial disclosure requirement of § 1201.73(a). 

* Eliminates the separate provisions that governed discovery from a party 

from those governing discovery from a nonparty, other than the remedy 

when there are problems with discovery. When a party alleges that another 

party has failed to comply with its obligations, the appropriate procedure 

would be a motion to compel. When a party alleges that a nonparty has 

failed to comply, the appropriate procedure would be a motion to issue a 

subpoena. 

* Time limit for initial discovery requests has been increased from 25 days to 

30 days after the date on which the judge issues the Acknowledgment 

Order. 

1201.81 Requests for subpoenas.

* Revised to provide that a request for a subpoena to a nonparty “must be 

supported by a showing that the evidence sought is directly material to the 

issues involved in the appeal.” 

Subpart C: Petitions for Review. 

 * Reorganized so that: 

Section 1201.114 contains all the rules governing the content and 

procedures for pleadings on review, including some matters that were 

covered in 1201.115; 

section 1201.115 is now limited to the criteria for granting petitions and 

cross petitions for review; and 

section 1201.116 contains the rules governing compliance with interim 

relief orders, including those that were previously located at 1201.115(b) 

and (c). 
1201.114 Petition and cross petition for review – content and procedure. 

* Institutes length limits on PFR pleadings: 30 pages or 7500 words for 

PFRs and cross-PFRs and responses to either of those documents; and 15 

pages or 3750 words for a reply to a response to a PFR or cross-PFR. 

* Provides for a reply to a response to a PFR, but limits such a reply to the 

factual and legal issues raised by the other party in the response to the 

PFR, and provides that no other pleadings will be allowed. 

1201.115 Criteria for granting petition or cross petition for review. 

* Rewritten to conform the regulation to the broader criteria by which the 

Board has actually reviewed PFRs, including situations where the Board 

has denied a PFR but “reopened” the appeal “on its own motion” to address 

a petitioner’s arguments or vacate, modify, or reverse an initial decision. 

 * States that the Board will grant a PFR or cross-PFR when: 

(a) The initial decision contains erroneous findings of material fact; 

(b) the initial decision is based on an erroneous interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case;

(c) the judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse 

of discretion; and,

(d) the petitioner has new and material evidence or legal argument that was 

not available when the record closed despite the petitioner’s due diligence. 

1201.118 Board reopening of final decisions.

* Makes clear that the Board will exercise its discretion to reopen only in 

unusual or extraordinary circumstances, and only within a reasonably short 

period of time. 

* Revised to make clear that “reopening” only applies to, and is reserved for, 

instances in which the Board has already issued a final order or the initial 

decision has become the Board’s final decision by operation of law. 

* Changes the previous Board practice of reopening an appeal on the Board’s 

own motion under 5 C.F.R. § 1201.118 when a party’s petition for review 

is denied, but the Board deems it appropriate to issue an Opinion and Order 

for some reason.
1201.155 Requests for review of arbitrators’ decisions.

* Provides that, “If the negotiated grievance procedure permits allegations of 

discrimination, the Board will review only those claims of discrimination 

that were raised in the negotiated grievance procedure.” This overturns a 

longstanding Board practice, based on Jones v. Department of the Navy, 

898 F.2d 133 (Fed. Cir. 1990), wherein appellants were allowed to raise 

discrimination claims for the first time when requesting Board review of an 

arbitration decision. 

* Provides that the “Board, in its discretion, may develop the record as to a 

claim of prohibited discrimination by ordering the parties to submit 

additional evidence or forwarding the request for review to a judge to 

conduct a hearing.” The reasoning behind this was that remand to the 

arbitrator would not be practical or feasible in most cases. Arbitration is a 

matter of contract and, once the arbitrator has issued an award, the contract 

has been performed and the arbitrator has been paid. The arbitrator could 

not become involved with the case on remand unless the union and the 

agency agreed to create a new contract. 

1201.182 Petition for enforcement.

* Clarifies that the Board’s enforcement authority under 5 U.S.C. § 

1204(a)(2) extends to situations in which a party asks the Board to enforce 

the terms of a settlement agreement entered into the record for purposes of 

enforcement, as well as to situations in which a party asks the Board to 

enforce the terms of a final decision or order. 

1201.183 Procedures for processing petitions for enforcement. 

* Changes the nature of an administrative judge’s decision in a compliance 

proceeding from a “recommendation” to a regular initial decision. The 

goal is to ensure, to the extent feasible, that all relevant evidence is 

produced during the regional office proceeding, and that the initial decision 

actually resolves all contested issues.

* Provides that the “responsible agency official” whose pay may be 

suspended should a finding of noncompliance become the Board’s final 

decision will be served with a copy of any initial decision finding the 

agency in noncompliance.

* New paragraph (d) codifies existing case law regarding the different 

burdens of proof that apply in enforcement actions depending on whether 
the Board is adjudicating a petition to enforce relief ordered by the Board 

(typically status quo ante relief when the Board has not sustained an 

agency action), or a petition to enforce a settlement agreement that a party 

is alleging that the other party breached. 

1208.21 VEOA exhaustion requirement. 

 * Clarifies what is required to establish exhaustion in a VEOA appeal. . 

* New paragraph (b) provides that the deadline for filing a claim with DOL 

can be excused under the doctrine of equitable tolling. 

Equitable tolling: Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 

(1990) (federal courts have typically extended equitable relief sparingly, 

including those situations where the claimant has actively pursued his judicial 

remedies by filing a defective pleading during the statutory period, or where 

the complainant has been induced or tricked by his adversary’s misconduct 

into allowing the filing deadline to pass; it does not extend to what is at best a 

“garden variety” claim of excusable neglect). 

1208.22 Time of filing . 

* Paragraph (c) has been added to address the possibility of excusing an 

untimely appeal under the doctrine of equitable tolling. 

1208.23 Content of VEOA appeal. 

* New paragraph added to provide that a VEOA appeal must include 

evidence identifying the specific veterans’ preference claims that the 

appellant raised before the Secretary. 

1209.2 Jurisdiction in IRA appeals. 

* The revised regulation overrules a significant body of Board case law. 

Starting with its decision in Massimino v. Department of Veterans Affairs,

58 M.S.P.R. 318 (1993), the Board had consistently maintained the position 

that an individual who claims that an otherwise appealable action was 

taken against him in retaliation for making whistleblowing disclosures, and 

who seeks corrective action from the Special Counsel before filing an 

appeal with the Board, retains all the rights associated with an otherwise 

appealable action in the Board appeal. In 1994, the year after Massimino

was issued, Congress amended 5 U.S.C. § 7121 to add paragraph (g). 

Subsection (g)(3) provides that an employee affected by a prohibited 
personnel practice “may elect not more than one” of 3 remedies: (A) an 

appeal to the Board under 5 U.S.C. § 7701; (B) a negotiated grievance 

under § 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 (§ 1214), which can be 

followed by an IRA appeal filed with the Board (§ 1221). Under 

subsection (g)(4), an election is deemed to have been made based on which 

of the 3 actions the individual files first. A plain reading of § 7121(g) 

indicates that, contrary to Massimino, an individual who has been subjected 

to an otherwise appealable action, but who seeks corrective action from 

OSC before filing an appeal with the Board, has elected an IRA appeal, and 

is limited to the rights associated with such an appeal, i.e., the only issue 

before the Board is whether the agency took one or more covered personnel 

actions against the appellant in retaliation for making protected 

whistleblowing disclosures; the agency need not prove the elements of its 

case, and the appellant may not raise other affirmative defenses.