Possible Changes to MSPB Adjudicatory Regulations 

Present Regulation Possible Revised Regulation 

Reco

This would be a new regulation. § 1200.4 Petition for rulemaking. 

(a) Any interested person may petition the MSPB for 

the issuance, amendment, or repeal of a rule. Each petition shall: (1) Be submitted to the Clerk of the Board, 1615 M 

Street, N.W., Washington, D.C., 20419; 

(2) Set forth the text of substance of the rule or 

amendment proposed or specify the rule sought to be repealed; 

(3) Explain the interest of the petitioner in the 

action sought; and 

(4) Set forth all data and arguments available to the 

petitioner in support of the action sought. 

(b) No public procedures will be held directly on the 

petition before its disposition. If the MSPB finds that the petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate. If the Board finds that the petition does not contain adequate justification, the petition will be denied by letter or other notice, with a brief statement of the ground for denial. The Board may consider new evidence at any time; however, repetitious petitions for rulemaking will not be considered. 

A petition foauthorized by 

states that "[einterested perthe issuance, rule." The Msuch a petitioThe MSPB hfor respondinsearch of the Regulations hFederal agenplace for deaThe proposed identified abo

§ 10.20, a regDepartment oDevelopmen
Present Regulation Possible Revised Regulation 

Reco

§ 1201.3 Appellate jurisdiction. (a) Generally. The Board has jurisdiction 

over appeals from agency actions when the appeals are authorized by law, rule, or regulation. These include appeals from the following actions: 

§ 1201.3 Appellate jurisdiction. (a) Generally. The Board’s appellate jurisdiction is not 

plenary or general; rather, it is limited to those matters over which it has been given jurisdiction by law, rule or regulation. Potential appellants are cautioned that the Board’s jurisdiction does not depend solely on the nature of the action or decision taken or made, but may also depend on the type of federal appointment the individual received, e.g., competitive or excepted service, whether an individual is preference eligible, and other factors. Accordingly, the laws and regulations cited below, which are the source of the Board’s jurisdiction, should be consulted to determine not only the nature of the actions or decisions that are appealable, but also the limitations as to the types of employees, former employees, or applicants for employment who may assert them. Instances in which a law or regulation authorizes the Board to hear an appeal or claim include the following: 

The purpose that this reguBoard jurisdilaws and reguconsulted as jurisdiction. emphasizes tthe nature of held as well ataken. 

2
Present Regulation Possible Revised Regulation 

Reco

1201.3 Appellate Jurisdiction (a) . . . 

. . . (13) Employment of another applicant 

when the person who wishes to appeal to the Board is entitled to priority employment consideration after a reduction-inforce action, or after partial or full recovery from a compensable injury (5 CFR 302.501, 5 CFR 330.209); 

1201.3 Appellate Jurisdiction (a) . . . 

. . . (13) Failure to afford reemployment priority rights 

pursuant to a Reemployment Priority List (RPL) following separation by reduction in force (RIF), or full recovery from a compensable injury after more than 1 year, because of the employment of another person (5 CFR 330.209; 302.501. 

The revised vgravamen of 330.209 or 3afford an apppriority rightentitled, ratheanother appli

§ 1201.4 General definitions. (j) Date of service. The date on which 

documents are served on other parties. 

§ 1201.4 General definitions. (j) Date of service. “Date of service” has the same 

meaning as “date of filing” under paragraph (l) of this section. Unless a different deadline is specified by the administrative judge or other designated Board official, whenever a regulation in this part bases a party’s deadline for filing a pleading on the date of service of some previous document, and the previous document was served on the party by mail, the filing deadline will be extended by 5 calendar days. 

Under the cudefinition of circular (“the are served”) is defined as a copy of any and other parthe date of sepleading is sedate, or when Parties have service” both regulation reproviding thawhen a documit is receivedHaving resolof service,” t

3
Present Regulation Possible Revised Regulation 

Reco

issue, in that by one party time that the response. Fo§ 1201.55(b)from the date motion by thobjection to tfiling the momail rather thcuts the other objection in hare at least 20 regulations wfiling a pleadservice of a pThe amount ofile a pleadinmethod of separty. To redproposed reg“whenever a a party’s deaon the date odocument, anwas served ofiling deadlincalendar daypresumption documents arpostmark dat

4
Present Regulation Possible Revised Regulation 

Reco

§ 1201.14 Electronic Filing Procedures . . . (c) Matters excluded from electronic filing. 

Electronic filing may not be used to: (1) File a request to hear a case as a 

class appeal or any opposition thereto (§ 1201.27); 

(2) Serve a subpoena (§ 1201.83); or (3) File a pleading with the Special 

Panel (§ 1201.137). 

§ 1201.14 Electronic Filing Procedures . . . (c) Matters excluded from electronic filing. Electronic 

filing may not be used to: (1) File a request to hear a case as a class appeal or 

any opposition thereto (§ 1201.27); 

(2) Serve a subpoena (§ 1201.83); or (3) File a pleading with the Special Panel 

(§ 1201.137). 

(4) File a pleading that contains Sensitive Security 

Information (SSI) (49 CFR parts 15 and 1520); 

or 

(5) File a pleading that contains classified 

information (32 CFR part 2001). 

(6) File a request to participate as an amicus curiae 

or file a brief as amicus curiae pursuant to § 1201.34 of this part. 

The new subcurrent policy SSI and classe-Appeal Onsufficiently sor classified 

§ 1201.14 Electronic Filing Procedures . . . (m) Date electronic documents are filed 

and served. (1) As provided in § 1201.4(l) of this 

Part, the date of filing for pleadings filed via e-Appeal Online is the date of electronic submission. All pleadings filed via e-Appeal Online are time 

§ 1201.14 Electronic Filing Procedures . . . (m) Date electronic documents are filed and served. 

(1) As provided in § 1201.4(l) of this Part, the date 

of filing for pleadings filed via e-Appeal Online is the date of electronic submission. All pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the timeliness of a pleading will be determined based on the time zone from which the pleading was 

The regulatioconsistent wiprovision, wh

Paragraph pleadings and time oTime Zona pleading on the timpleading w

5
Present Regulation Possible Revised Regulation 

Reco

stamped with Eastern Time, but the timeliness of a pleading is assessed based on the time zone where the pleading is being filed. For example, a pleading filed at 11 p.m. Pacific Time on August 20 will be stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. However, if the pleading was required to be filed with the Western Regional Office on August 20, it would be considered timely, as it was submitted prior to midnight Pacific Time on August 20. 

. . . 

submitted. For example, a pleading filed at 11 p.m. Pacific Time on August 20 will be stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. However, if the pleading was required to be filed with the Washington Regional Office (in the Eastern Time Zone) on August 20, it would be considered timely, as it was submitted prior to midnight Pacific Time on August 20. 

. . . 

73 Fed. Reg. proposed revconsistent wi

§ 1201.21 Notice of appeal rights. 

When an agency issues a decision 

notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: (a) Notice of the time limits for appealing 

to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal; 

(b) A copy, or access to a copy, of the 

§ 1201.21 Notice of appeal rights. 

When an agency issues a decision notice to an 

employee on a matter that is appealable to the Board, the agency must provide the employee with the following: (a) Notice of the time limits for appealing to the Board, 

the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal; 

(b) A copy, or access to a copy, of the Board’s 

regulations; 

As discussed connection wappeals undeproposing to jurisprudence reprisal for w5 U.S.C. § 23employee haotherwise appprovisions of an employee one” of 3 remBoard under 

6
Present Regulation Possible Revised Regulation 

Reco

Board’s regulations; 

(c) A copy of the MSPB appeal form 

available at the Board’s Web site (http://www.mspb.gov), and 

(d) Notice of any right the employee has to 

file a grievance, including: (1) Whether the election of any 

applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board; 

(2) Whether both an appeal to the 

Board and a grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board; and 

(3) Whether there is any right to 

request Board review of a final decision on a grievance in accordance with § 1201.154(d). 

(c) A copy of the MSPB appeal form available at the 

Board’s Web site (http://www.mspb.gov), and 

(d) Notice of any right the employee has to file a 

grievance or seek corrective action under subchapters II and II of 5 U.S.C. chapter 12, including: (1) Whether the election of any applicable 

grievance procedure will result in waiver of the employee’s right to file an appeal with the Board; 

(2) Whether both an appeal to the Board and a 

grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board; 

(3) Whether there is any right to request Board 

review of a final decision on a grievance in accordance with § 1201.154(d); and . 

(4) The effect of any election under 5 U.S.C. 

7121(g), including the effect that seeking corrective action under subchapters II and II of 5 U.S.C. chapter 12 will have on the employee’s appeal rights before the Board. 

negotiated gror (C) correcsubchapters Ichapter 12, i.OSC (§ 1214by an IRA ap(§ 1221). Unelection is debased on whiindividual filA plain readiappear to indlongstanding individual whotherwise appseeks correctfiling an appeelected an IRthe rights assappeal, i.e., tBoard is whemore covered the appellant protected whthe agency neof its case, anraise other afThe proposed agencies to futheir rights in they can makamong the av

7
Present Regulation Possible Revised Regulation 

Reco

§ 1201.22 Filing an appeal and responses 

to appeals. 

. . . (b) Time of filing. 

(1) Except as provided in paragraph 

(b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days--for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board's acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part. 

(2) The time limit prescribed by 

paragraph (b)(1) of this section for filing an appeal does not apply 

§ 1201.22 Filing an appeal and responses to appeals. (b) Time of filing. 

. . . 

(3) An appellant is responsible for keeping the 

agency informed of his or her current address for purposes of receiving correspondence. For purposes of paragraph (b)(1) of this section, an appellant is deemed to have received the agency’s decision on the earliest date that: (i) The appellant personally receives the 

decision; 

(ii) A relative of the appellant who is at least 

18 years of age and of suitable discretion receives the decision at the appellant’s current address; 

(iii) A representative designated by the 

appellant to receive the agency decision receives the decision; 

(iv) The appellant would have received the 

decision if he or she had not failed to keep 

the agency informed of his or her current address; or 

(v) The appellant would have received the 

decision if he or she were not intentionally 

avoiding receipt. 

. . . 

The proposed new subparagsetting forth when an appereceived a deproposal is to Board’s doctCurrently, th1201.22 and 

appellant “redecision on treceives it. Tthe language compared wisection 1201

accounts for by an individpetitioner. Hpractice of chreceiving dec1201.22 and than when threceive themof Education

(2005); CreaJustice, 84 MThe Board alcharging petireceipt of inithan those in1201.114(d). 

of the Air Fo

8
Present Regulation Possible Revised Regulation 

Reco

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 title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Pub. L. 105–339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests. . . . 

& n.2 (2010)We believe thappropriate findividual widecision, but this matter shregulations, wmisleading in Board’s currefiling periods ascertained frinconsistent wan open and tprocess. The litigants to be constructive before they happeals, and relatively simcase law. Thproposed sub(v). Fed. R. 

a model for d[More discus

§ 1201.24 Content of an appeal; right to 

hearing. 

(a) Content. Only an appellant, his or her 

designated representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form. An 

§ 1201.24 Content of an appeal; right to hearing. (a) Content. Only an appellant, his or her designated 

representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form. An appeal may be filed in electronic form provided that the requirements of § 1201.14 have been satisfied. All 

The proposed the scope of r“any relevant the decision oappealed.” In the only docuthe items of i§ 1201.24(a)

9
Present Regulation Possible Revised Regulation 

Reco

appeal may be filed in electronic form provided that the requirements of § 1201.14 have been satisfied. All appeals must contain the following: . . . (7) The notice of the decision to take 

the action being appealed, along with any relevant documents; 

. . . 

appeals must contain the following: . . . (7) Where applicable, a copy of the decision or 

notice of the action being appealed. No other attachments should be included with the appeal, as the agency will be submitting the documents required by § 1201.25 of this part, and there will be several opportunities to 

submit evidence and argument after the appeal is filed. 

. . . 

order to dockappropriate Ajurisdictional regulation, apnumerous attwill be includFile, and otherelevant to thWe note that does not mandocuments ththe appellant jurisdictional an administraVEOA appeasuch documeacknowledgmorders issued We also note Appeal Form numerous dorevision is adto revise the consistent wi

§ 1201.24 Content of an appeal; right to 

hearing. 

. . . (d) Right to hearing. Under 5 U.S.C. 

7701, an appellant has a right to a hearing. 

§ 1201.24 Content of an appeal; right to hearing. . . . (d) Right to hearing. In an appeal under 5 U.S.C. 7701, 

an appellant generally has a right to a hearing if the appeal has been timely filed and the Board has jurisdiction over the appeal. 

The revised rappellant doeright to a heathe right exisappeal has beappellant has over the appeof the Navy, 7

10
Present Regulation Possible Revised Regulation 

Reco

(1996). Even conditions hato a hearing iextend to VEaddendum prfor enforcemattorney feesconsidered liright to a heamight not capfuture decisioFederal Circu

1201.28 Case suspension procedures. (a) Joint requests. The parties may submit 

a joint request for additional time to pursue discovery or settlement. Upon receipt of such request, an order suspending processing of the case for a period up to 30 days may be issued at the discretion of the judge. 

(b) Unilateral requests. In lieu of 

participating in a joint request, either party may submit a unilateral request for additional time to pursue discovery as provided in this subpart. Unilateral requests for additional time of up to 30 days may be granted for good cause shown at the discretion of the judge. 

(c) Time for filing requests. The parties 

1201.28 Case suspension procedures. (a) Suspension period. An administrative judge may 

suspend case processing for one or more periods that may not exceed a combined total of 60 days. (1) Joint requests. The parties may file a joint 

request to suspend case processing, and such a request is granted in the discretion of the 

administrative judge. 

(2) Unilateral requests. Either party may file a 

unilateral request to suspend case processing in order to pursue discovery or for another significant reason. Unilateral requests must 

explain the attempts the moving party has made to obtain the consent of the nonmoving party, and must be supported by a showing of good cause. Any opposition to a unilateral request must be received by the Board within 5 days of the filing of the request or such shorter 

The most sigallow for mosuspension pvalid reasons adjudication circumstancecan arise at aAccordingly, provides for with the limisuspended foeliminates thwhen a requethe current reregulation dosubsections fjoint requests

11
Present Regulation Possible Revised Regulation 

Reco

must file a joint request that the adjudication of the appeal be suspended within 45 days of the date of the acknowledgment order (or within 7 days of the appellant's receipt of the agency file, whichever date is later). 

(d) Untimely requests. The judge may 

consider requests for suspensions that are filed after the time limit set forth in paragraph (c) of this section. Such requests may be granted at the discretion of the judge. 

(e) Early termination of suspension period. 

The suspension period may be terminated prior to the end of the agreed upon period if the parties request the judge's assistance relative to discovery or settlement during the suspension period and the judge's involvement pursuant to that request is likely to be extensive. 

(f) Limitation on suspension period. No 

case may be suspended for more than a total of 30 days under the provisions of this section. 

(g) Termination after 30 days. If the final 

day of the 30-day suspension period falls on a day on which the MSPB is closed for business, adjudication shall resume as of the first business day 

period ordered by the administrative judge. 

(b) Time for Filing. All requests for suspension of case 

processing shall be filed within 45 days after issuance of the acknowledgment order. 

(c) Late suspension requests. Requests for suspension 

of case processing that are filed more than 45 days after issuance of the acknowledgment order must be supported by a showing of good cause for the late filing, and must be approved by the appropriate Regional Director or Chief Administrative Judge. 

(d) Early termination of suspension period. The 

administrative judge, in his or her discretion, may terminate the suspension period at any time for any appropriate reason. For example, the judge may terminate the suspension period in cases where the parties request the judge’s assistance and the judge’s involvement pursuant to that request is likely to be extensive. 

(e) End of suspension period. If the final day of any 

suspension period falls on a day on which the Board is closed for business, adjudication shall resume as of the first business day following the expiration of the period. 

12
Present Regulation Possible Revised Regulation 

Reco

following the expiration of the 30-day period. 

No existing regulation. This would be a new provision. 

1201.29 Dismissal Without Prejudice. 

A dismissal of an appeal without prejudice is a 

dismissal which allows for the refiling of the appeal in the future. A judge has wide discretion to control Board proceedings, and a dismissal of an appeal without prejudice to its subsequent refiling is a procedural option committed to the judge’s sound discretion. A dismissal without prejudice is appropriate when it furthers the interests of fairness, due process, and administrative efficiency. Accordingly, where the judge determines that such a dismissal is appropriate and does not prejudice the interests of either party, the judge may issue a decision dismissing an appeal without prejudice, and setting a date certain by which the appeal must be refiled. 

This codifies e.g., Wheeler 113 M.S.P.R

Department o

¶ 13 (2001). 

§ 1201.31 Representatives. . . . (d)(1) A judge may exclude a party, a 

representative, or other person from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice. 

(d) As set forth in paragraphs (d) and (e) of section 1201.43 of this part, a judge may exclude a representative from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice. 

The provisionother sanctiobehavior by phave been moto section 12section for pr

13
Present Regulation Possible Revised Regulation 

Reco

. . . 

§ 1201.33 Federal witnesses. (a) Every Federal agency or corporation 

must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate). 

. . . 

§ 1201.33 Federal witnesses. (a) Every Federal agency or corporation, including 

nonparties, must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. The responding agency shall arrange for the presence of approved Federal employee witnesses to include those who are employed by other Federal agencies or corporations. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status ( i.e., entitled to pay and benefits including travel and per diem, where appropriate). 

. . . 

This proposeadministrativappearance owitnesses reqwho work foagency. Ageresponsible ftheir own emthe presence witnesses emFederal agen

§ 1201.34 Intervenors and amicus 

curiae. 

. . . (e) Amicus curiae. An amicus curiae is a 

person or organization that, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may, in the discretion of the judge, be granted permission to 

§ 1201.34 Intervenors and amicus curiae. . . . (e) Amicus curiae. 

(1) An amicus curiae is a person or organization 

who, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge or the Board regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may request permission to file an amicus brief. 

(2) A request to file an amicus curiae brief must 

The present ramicus curiathat files a brthat persons/discretion of permission to the Board hamotions to fitime on petitiBoard has bethose requestaddresses thiprovides furt

14
Present Regulation Possible Revised Regulation 

Reco

file an amicus curiae brief. include a statement of the person’s or 

organization’s interest in the appeal and how the brief will be relevant to the issues involved. 

(3) The request may be granted, in the discretion of 

the judge or the Board, if the person or organization has a legitimate interest in the proceedings, and such participation will not unduly delay the outcome and may contribute materially to the proper disposition thereof. 

(4) The amicus curiae shall submit its brief within 

the time limits set by the judge or the Board, and must comply with any further orders by the judge or the Board. 

(5) An amicus curiae is not a party to the 

proceeding and may not participate in any way in the conduct of the hearing, including the presentation of evidence or the examination of witnesses. The Board may, in its discretion, invite an amicus curiae to participate in oral argument in proceedings in which oral argument is scheduled. 

an amicus caIn addition, tcriteria in the requests to figranted or deregulation allof flexibility, parties or OAmembers witrequest will bproposed regguidelines whlanguage that requests may (or Board’s) guidelines (ledelay, materidisposition) athe regulationadjudicatory 

C.F.R. § 180Housing & UC.F.R. § 68.138 C.F.R. § 1Veterans Aff(Department Services); 43 (Department § 821.9 (DepWe note that being proposthat amici ca

15
Present Regulation Possible Revised Regulation 

Reco

discussion as Online shoulsuch filings, accessing the Privacy Act cthat the time worthwhile cBoard receiv

§ 1201.43 Sanctions. 

The judge may impose sanctions upon 

the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), and (c) of this section. . . . § 1201.31 Representatives. . . . (d) (1) A judge may exclude a party, a 

representative, or other person from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice. (2) When a judge determines that a 

person should be excluded from participation in a proceeding, the judge shall inform the person of this determination through issuance of an order to show 

§ 1201.43 Sanctions. 

The judge may impose sanctions upon the parties 

as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of this section. Before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record. . . . (d) Exclusion of a representative or other person. A 

judge may exclude a representative or other person from further participation in the case for contumacious misconduct or conduct prejudicial to the administration of justice. When the judge excludes an appellant’s representative, the judge will afford the appellant a reasonable time to obtain another representative before proceeding with the case. 

(e) Cancellation, suspension, or termination of hearing. 

A judge may cancel a scheduled hearing, or suspend or terminate a hearing in progress, for 

Excluding pafor contumaccovered by 1We believe thcovered undeexclusion or contumaciouThe revised rexplicit authoterminating a As a related mdeletes the reorder in favothat, before imjudge must pdocument the A formal shofeasible wheror during a hrevised regulprovision for a sanction foWe believe ththis nature vi

16
Present Regulation Possible Revised Regulation 

Reco

cause why he or she should not be excluded. The show cause order shall be delivered to the person by the most expeditious means of delivery available, including issuance of an oral order on the record where the determination to exclude the person is made during a hearing. The person must respond to the judge’s show cause order within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the order, unless the judge provides a different time limit, or forfeit the right to seek certification of a subsequent exclusion order as an interlocutory appeal to the Board under paragraph (d)(3) of this section. 

(3) When, after consideration of the 

person’s response to the show cause order, or in the absence of a response to the show cause order, the judge determines that the person should be excluded from participation in the proceeding, the judge shall issue an order that documents the reasons for the exclusion. The person may obtain review of the judge’s ruling by filing, within three days (excluding Saturdays, Sundays, 

contumacious misconduct or conduct prejudicial to the administration of justice on the part of the appellant or the appellant’s representative. If the judge suspends a hearing, the parties must be given notice as to when the hearing will resume. If the judge cancels or terminates a hearing, the judge must set a reasonable time during which the record will be kept open for receipt of written submissions. 

be sufficient. proceeding to appropriatenewarranted. 

17
Present Regulation Possible Revised Regulation 

Reco

and Federal holidays) of receipt of the ruling, a motion that the ruling be certified to the Board as an interlocutory appeal. The judge shall certify an interlocutory appeal to the Board within one day (excluding Saturdays, Sundays, and Federal holidays) of receipt of such a motion. Only the provisions of this paragraph apply to interlocutory appeals of rulings excluding a person from a proceeding; the provisions of §§ 1201.91 through 1201.93 of this part shall not apply. 

(4) A proceeding will not be delayed 

because the judge excludes a person from the proceeding, except that: (i) Where the judge excludes a 

party’s representative, the judge will give the party a reasonable time to obtain another representative; and 

(ii) Where the judge certifies an 

interlocutory appeal of an exclusion ruling to the Board, the judge or the Board may stay the proceeding sua sponte or on the motion of a party for a stay of the 

18
Present Regulation Possible Revised Regulation 

Reco

proceeding. 

(5) The Board, when considering a 

petition for review of a judge’s initial decision under subpart C of this part, will not be bound by any decision of the judge to exclude a person from the proceeding below. 

§ 1201.51 Scheduling the hearing. . . . (d) The Board has established certain 

approved hearing locations, which are published as a Notice in the Federal Register. See appendix III. 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. 

. . . Appendix III to Part 1201 – Approved 

Hearing Locations by Regional Office 

[Appendix III lists approved hearing sites for each regional and field office.] 

§ 1201.51 Scheduling the hearing. . . . (d) The Board has established certain approved hearing 

locations, which are listed on the Board’s public website (www.mspb.gov). The judge will advise parties of these hearing sites as appropriate. Parties, for good cause, may file motions requesting a different hearing location. Rulings on those motions will be based on a showing that a different location will be more advantageous to all parties and to the Board. 

. . . [Appendix III to Part 1201 would be deleted.] 

The current ehearing sites inefficiencies budgetary coas the cost of by GSA each court reporteone city to thGovernment Atlanta to Peless than $20Al., less than is over $1,00change approto year by chBoard’s publthe situation 

19
§ 1201.52 Public hearings. 

Hearings are open to the public. The 

judge may order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge's decision. Any objections to the order will be made a part of the record. 

§ 1201.52 Public hearings. 

Hearings are open to the public. The judge may 

order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge's decision. Any objections to the order will be made a part of the record. Absent express approval from the judge, no two-way communications devices may be operated and/or powered on in the hearing room; all cell phones, text devices, and all other two-way communications devices shall be powered off in the hearing room. Further, no cameras, recording devices, and/or transmitting devices may be operated, operational, and/or powered on in the hearing room without the consent of the judge. 

The last two to give adminauthority to cdevices at a h

§ 1201.53 Record of proceedings. (a) Preparation. A word-for-word record 

of the hearing is made under the judge's guidance. It is kept in the Board's copy of the appeal file and it is the official record of the hearing. Only hearing tape recordings or written transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. When the judge assigned to the case tape records a hearing (for example, a telephonic hearing in a retirement appeal), the 

§ 1201.53 Record of proceedings. (a) Preparation. A word-for-word record of the 

hearing is made under the judge's guidance. It is kept in the Board's copy of the appeal file and it is the official record of the hearing. Only hearing recordings or transcripts prepared by the official hearing reporter will be accepted by the Board as the official record of the hearing. A “transcript” refers not only to printed copies of the hearing testimony or recordings transcribed by the official hearing reporter, but also to electronic versions of the reporter’s transcription of the hearing testimony 

or recordings. When the judge assigned to the case records a hearing (for example, a telephonic 

Several chanBecause of th“e-transcripts formats, the thas been repldefinition of In light of chterm “tape reby the word “A new subsewhich providthe official cotranscript and 

20
judge is the “official hearing reporter” 

under this section. 

(b) Copies. When requested and when 

costs are paid, a copy of the official record of the hearing will be provided to a party. A party must send a request for a copy of a hearing tape recording or written transcript to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. A request for a copy of a hearing tape recording or written transcript sent by a non-party is controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests for hearing tape recordings or written transcripts under the Freedom of Information Act must be sent to the appropriate Regional Director, the Chief Administrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC. 

(c) Exceptions to payment of costs. A 

party may not have to pay for a hearing tape recording or written transcript if he has a good reason to support a request for an exception. If a party believes he has a good reason and the request is made before the judge issues an initial decision, the party must send the request for an exception to the judge. If the request is made after the judge issues an initial 

hearing in a retirement appeal), the judge is the “official hearing reporter” under this section. 

(b) Requests for Transcripts. Any party may request 

that the official hearing reporter prepare a transcript. If no party requests a transcript, the judge or the Clerk of the Board may direct that a transcript (full or partial) be prepared. 

(c) Copies. When requested and when costs are paid, a 

copy of the official record of the hearing will be provided to a party. Copies of recordings will be provided to parties free of charge. Unless ordered by the Board, transcripts will be prepared at the requesting party's expense. A party must send a request for a copy of a hearing recording or transcript to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. A request for a copy of a hearing recording or transcript sent by a non-party is controlled by the Board's rules at 5 CFR part 1204 (Freedom of Information Act). Requests for hearing recordings or transcripts under the Freedom of Information Act must be sent to the appropriate Regional Director, the Chief Administrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC, as appropriate. 

(d) Exceptions to payment of costs. A party may not 

have to pay for a transcript if he has a good reason to support a request for an exception. If a party believes he has a good reason and the request is made before the judge issues an initial decision, the party must send the request for an exception to the judge. If the request is made after the judge issues an initial decision, the request must be sent to the 

such a requesthe Board maprepared. In accordancpractice, the 

recordings wno cost. Subsection (eto a transcripslightly, and for correctionthe Clerk of tjudge where Subsection (fclarify that Mavailable for copying, but FOIA Act req

21
decision, the request must be sent to 

the Clerk of the Board, who shall have authority to grant or deny such requests. The party must clearly state the reason for the request in an affidavit or sworn statement. 

(d) Corrections to written transcript. 

Corrections to the official written transcript may be made on motion by a party or on the judge's own motion. Motions for corrections must be filed within 10 days after the receipt of a written transcript. Corrections of the official written transcript will be made only when substantive errors are found and only with the judge's approval. 

(e) Official record. Exhibits, the official 

hearing record, if a hearing is held, all papers filed, and all orders and decisions of the judge and the Board, make up the official record of the case. 

Clerk of the Board, who shall have authority to 

grant or deny such requests. The party must clearly state the reason for the request in an affidavit or sworn statement. 

(e) Corrections to transcript. Any discrepancy between 

the transcript and the recording shall be resolved by the judge or the Clerk of the Board as appropriate. Corrections to the official transcript may be made on motion by a party or on the judge's own motion or by the Clerk of the Board as appropriate. Motions for corrections must be filed within 10 days after the receipt of a transcript. Corrections of the official transcript will be made only when substantive errors are found by the judge, or by the Clerk of the Board, as appropriate. 

(f) Official record. Hearing exhibits and pleadings that 

have been accepted into the record, the official hearing record, if a hearing is held, and all orders and decisions of the judge and the Board, make up the official record of the case. Other than the Board’s initial and final decisions, the official record is not available for public inspection and copying. The official record is, however, subject to requests under both the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 

552a) pursuant to the procedures contained in 

5 C.F.R. parts 1204 and 1205. 

§ 1201.71 Purpose of discovery. 

Proceedings before the Board will be 

conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to 

§ 1201.71 Purpose of discovery. 

Proceedings before the Board will be conducted as 

expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the 

A sentence hthis section srequests and not be ordinaBoard. Altho

22
obtain relevant information needed to 

prepare the party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention. 

party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention. Discovery requests and responses thereto are not to be filed with the Board, except in connection with a motion to compel discovery under § 1201.73(c) or a motion to subpoena discovery under § 1201.73(d). 

effect are curorders, it coumessage in th

§ 1201.73 Discovery procedures. (a) Initial disclosures. Except to the extent 

otherwise directed by order, each party must, without awaiting a discovery request and within 10 days following the date of the MSPB's acknowledgment order, provide the following information to the other party: (1) The agency must provide: 

. . . 

(2) The appellant must provide: 

. . . 

(3) Each party must make its initial 

disclosure based upon the information then reasonably available to the party. . . . 

(b) Discovery from a party. A party 

seeking discovery from another party must start the process by serving a request for discovery on the 

1201.73 Discovery procedures. (a) Initiating discovery. A party seeking discovery 

must start the process by serving a request for discovery on the representative of the party or nonparty, or, if there is no representative, on the party or nonparty themselves. The request for discovery must state the time limit for responding, as prescribed in § 1201.73(d), and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for discovery to the official or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer 

or employee as necessary in providing relevant information that is available to the agency. 

(b) Responses to discovery requests. A party or 

nonparty must answer a discovery request within the time provided under paragraph (d)(2) of this section, either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the 

The revised vincludes seveThe initial disubsection (aentirety. The 

provision is b

26(a)(1). Altmakes a greacourts, it makadjudication and foremostcomparable ithe Agency Fproceeding. by § 1201.25contained in action” being experience, trequirement runfruitful moboth parties fmatters, such Agency File 

23
representative of the other party or the 

party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in §1201.73(f), and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for discovery to an officer or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer or employee as necessary in providing relevant information that is available to the agency. 

(c) Discovery from a nonparty, including a 

nonparty Federal agency. Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly. If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of 

particular request and the reasons for the objection. Parties and nonparties may respond to discovery requests by electronic mail if authorized by the requesting party. 

(c) Motions to compel or issue a subpoena. (1) If a 

party fails or refuses to respond in full to a discovery request, the requesting party may file a motion to compel discovery. If a nonparty fails or 

refuses to respond in full to a discovery request, the requesting party may file a motion for the issuance of a subpoena directed to the individual or entity from which the discovery is sought under the procedures described in § 1201.81. The requesting party must serve a copy of the motion on the other party or nonparty. Before filing any motion to compel or issue a subpoena, the moving party shall discuss the anticipated motion with the opposing party or nonparty and the litigants shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. The motion shall include: 

(i) A copy of the original request and a 

statement showing that the information sought is relevant and material; 

(ii) A copy of the response to the request 

(including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. § 1746 supporting the statement (See appendix IV to party 1201.); and 

(iii) A statement that the moving party has 

discussed or attempted to discuss the anticipated motion with the opposing 

timeliness anThe present rsubsections gparty and disThat distinctiunnecessary. process for udiscovery froparty seeking order from thdiscovery takinsufficient, a and issued. Under the prorequirements for parties andiscovery reqor nonparty aIf a discovery forthcoming must be madinformally. Iunsuccessfulthe judge. If is a party, a mis filed. If thnon-party, a msubpoena undThe time limrequests has days to 30 dathe judge issuOrder. That production o

24
the particular information sought. If 

the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the MSPB will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any MSPB-approved discovery request and subpoena on the individual or entity, or for arranging for its service. 

(d) Responses to discovery requests . A 

party, or a Federal agency that is not a party, must answer a discovery request within the time provided under paragraph (f)(2) of this section, either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection. Parties and non-parties may respond to discovery requests by electronic mail if authorized by the 

party or nonparty, and made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. 

(2) The party or nonparty from whom discovery 

was sought may respond to the motion to compel or issue a subpoena within the time limits stated in paragraph (d)(3) of this section. 

(d) Time limits. (1) Unless otherwise directed by the 

judge, parties must serve their initial discovery 

requests within 30 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.(2) A party or nonparty must file a response to a 

discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed by the judge. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place. 

(3) Any motion for an order to compel or issue a 

subpoena must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel or subpoena discovery must be filed with the judge within 10 days of the date of service of the motion. 

days. The inshould ensurappellants hainitiate discowhat is in the already the cpermission to deadline has permission shappropriate. Subsection (dother deadlindiscovery muthan the prehconference. 

25
requesting party. 

(e) Motions to compel discovery. (1) If a 

party fails or refuses to respond in full to a discovery request, or if a nonparty fails or refuses to respond in full to a MSPB-approved discovery order, the requesting party may file a motion to compel discovery. The requesting party must file the motion with the judge, and must serve a copy of the motion on the other party and on any nonparty entity or person from whom the discovery was sought. Before filing any motion to compel discovery, the moving party shall discuss the anticipated motion with the opposing party either in person or by telephone and the parties shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. The motion shall include: 

(i) A copy of the original request 

and a statement showing that the information sought is relevant and material; and 

(ii) A copy of the response to the 

request (including the objections to discovery) or, 

where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the 

(4) Discovery must be completed within the time 

period designated by the judge or, if no such period is designated, no later than the prehearing or close of record conference. 

(e) Limits on the number of discovery requests. (1) 

Absent prior approval by the judge, interrogatories . . . . 

26
statement (See appendix IV 

to part 1201.); and 

(iii) A statement that the parties 

have discussed the anticipated motion and have made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. 

(2) The other party and any other 

entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (f)(4) of this section. 

(f) Time limits. (1) Parties who wish to 

make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response. (2) A party or nonparty must file a 

response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of 

service of the prior response, unless the parties are otherwise directed. Deposition witnesses 

27
must give their testimony at the 

time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place. 

(3) Any motion to depose a nonparty 

(along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (f)(1) of this section or as the judge otherwise directs. 

(4) Any motion for an order to compel 

discovery must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel discovery must be filed with the judge within 10 days of the date of service of the motion. 

(5) Discovery must be completed 

within the time the judge designates. 

(g) Limits on the number of discovery 

requests . . . . 

28
§ 1201.93 Procedures. 

. . . (c) Stay of Hearing. The judge has the 

authority to proceed with or to stay the hearing while an interlocutory appeal is pending with the Board. Despite this authority, however, the Board may stay a hearing on its own motion while an interlocutory appeal is pending with it. 

§ 1201.93 Procedures. . . . (c) Stay of Appeal. The judge has the authority to 

proceed with or to stay the appeal while an interlocutory appeal is pending with the Board. If the judge does not stay the appeal, the Board may do so while an interlocutory appeal is pending with it. 

The word “heby “appeal.” pending hearinterlocutory to the Board. 

§ 1201.112 Jurisdiction of judge. (a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to: 

. . . (4) Vacate an initial decision before that decision becomes final under § 1201.113 in order to accept a settlement agreement into the record. 

. . . 

§ 1201.112 Jurisdiction of judge. (a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to: 

. . . (4) Vacate an initial decision to accept into the record a settlement agreement that is filed before the initial decision becomes final under 1201.113. 

. . . 

This change administrativdecision to acagreement insettlement agparties prior petition for reuntil after the decision woufinal decision 

§ 1201.113 Finality of decision. 

The initial decision of the judge will 

become final 35 days after issuance. Initial 

§ 1201.113 Finality of decision. 

The initial decision of the judge will become final 

35 days after issuance. Initial decisions are not 

The revision this regulatio§ 1201.112(a

29
decisions are not precedential. 

(a) Exceptions. The initial decision will not 

become final if any party files a petition for review within the time limit for filing specified in § 1201.114 of this part, or if the Board reopens the case on its own motion. 

. . . 

precedential. (a) Exceptions. The initial decision will not become 

final if within the time limit for filing specified in 1201.114 of this part, any party files a petition for review or, if no petition for review is filed, files a request that the initial decision be vacated for the 

purpose of accepting a settlement agreement into the record, or if the Board reopens the case on its own motion. 

. . . (f) When the Board, by final decision or order, finds 

there is reason to believe a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. § 2302(b)(8), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. § 1215. 

Paragraph (f) the Board wiinvestigate andisciplinary afinds that an reprisal for aprotected whPreviously, oonly required was found in referrals will retaliation foin an otherwi

Subpart C – Petitions for Review of 

Initial Decisions, §§ 1201.114 to .116 

Subpart C – Petitions for Review of Initial 

Decisions, §§ 1201.114 to .116 

We have reorthese sectionproposed revall the rules gprocedures foincluding somcovered in § 1201.115 is nfor granting pfor review. Sthe rules govinterim relief that were pre§ 1201.115(b

30
§ 1201.114 Filing petition and cross 

petition for review. 

(a) Who may file. Any party to the 

proceeding, the Director of the Office of Personnel Management (OPM), or the Special Counsel may file a petition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under OPM's jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party's designated representative. 

(b) Cross petition for review. If a party, 

the Director of OPM, or the Special Counsel files a timely petition for review, any other party, the Director of OPM, or the Special Counsel may file a timely cross petition for review. The Board normally will consider only issues raised in a timely filed petition for review or in a timely filed cross petition for review. 

(c) Place for filing. A petition for review, 

cross petition for review, responses to those petitions, and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by 

§ 1201.114 Petition and cross petition for review – 

content and procedure. 

(a) Pleadings allowed. Pleadings allowed on review 

include a petition for review, a cross petition for review, a response to a petition for review, a response to a cross petition for review, and a reply to a response to a petition for review. (1) A petition for review is a pleading in which a 

party contends that an initial decision was incorrectly decided in whole or in part. 

(2) A cross petition for review has the same 

meaning as a petition for review, but is used to describe a pleading that is filed by a party when another party has already filed a timely petition for review. 

(3) A response to a petition for review and a cross 

petition for review may be contained in a single pleading. 

(4) A reply to a response to a petition for review is 

limited to the factual and legal issues raised by another party in the response to the petition for review. It may not raise new assignments of error. 

(5) No pleading other than the ones described in 

this paragraph will be accepted unless the party files a motion with and obtains leave from the Clerk of the Board. The motion must describe the nature of and need for the pleading. 

(b) Contents of petition or cross petition for review. A 

petition or cross petition for review states a party’s 

The suggestewould do sev(1) Institute ppleadings on parties can fuarguments wthose imposeand other adme.g., rules for for the D.C. C

Exchange Co

§ 201.154 an

Trademark Oand the FedeReview comm

§ 2700.75). administrativlength limitatnumber of pawords in a pladopted such it would makconfusing anabout half of before the Bo(2) Expressly responses to proposed regreply to a resreview, but wlimit for filinregulation, suonly if the re

31
commercial or personal delivery, by 

facsimile, by mail, or by electronic filing in accordance with § 1201.14. 

(d) Time for filing. Any petition for review 

must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. 

(e) Extension of time to file. The Board 

will grant a motion for extension of time to file a petition for review, a cross petition, or a response only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board before the date on which the petition or other pleading is due. The Board, in its discretion, may grant or deny those motions without providing 

objections to the initial decision, including all of the party’s legal and factual arguments, and must be supported by references to applicable laws or regulations and by specific references to the record. Any petition or cross petition for review that contains new evidence or argument must include an explanation why the evidence or argument was not presented before the record below closed (see § 1201.58). A petition or cross petition for review should not include documents that were part of the record below, as the entire administrative record will be available to the Board. 

(c) Who may file. Any party to the proceeding, the 

Director of the Office of Personnel Management (OPM), or the Special Counsel may file a petition for review or cross petition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under OPM's jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party's designated representative. 

(d) Place for filing. All pleadings described in 

paragraph (a) and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by commercial or personal delivery, by facsimile, by mail, or by electronic filing in accordance with § 1201.14. 

(e) Time for filing. Any petition for review must be 

filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days 

agency) files for review beproposed regpetitioners thsuch a pleadiappellate coutribunals alloor briefs. See NLRB Rule 

C.F.R. § 161response to aamended regpleading opprespect, it woproviding in pleading othe(PFR, cross-Pcross-PFR, aPFRs) will be requesting anClerk of the Bsome petition“supplementbefore and afhas closed. (3) Define pepetitions for (4) Subsectioreference the constructive § 1201.22(b)decision notiabove. (5) Paragraph 

32
the other parties the opportunity to 

comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include a specific and detailed description of the circumstances alleged to constitute good cause, and it should be accompanied by any available documentation or other evidence supporting the matters asserted. 

(f) Late filings. Any petition for review, 

cross petition for review, or response that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (e) of this section, or unless a motion for extension is pending before the Board. The motion must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include: 

(1) The reasons for failing to request an extension before the deadline for the submission; and (2) A specific and detailed description of the circumstances causing the late filing, 

after the date of issuance, within 30 days after the 

date the petitioner received the initial decision. For purposes of this section, the date that the petitioner receives the initial decision is determined according to the standard set forth at § 1201.22(b)(3) of this title, pertaining to an appellant’s receipt of a final agency decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. Any reply to a response to a petition for review must be filed within 10 days after the date of service of the response to the petition for review or cross petition for review. 

(f) Extension of time to file. The Board will grant a 

motion for extension of time to file a pleading described in paragraph (a) only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board before the date on which the petition or other pleading is due. The Board, in its discretion, may grant or deny those motions without providing the other parties the opportunity to comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include a specific and detailed description of the circumstances alleged to constitute good cause, and it should be 

petition or crinclude “all ofactual argumensure that atthe MSPB wwhere all thanotice of appand the Clerk promulgates 

33
accompanied by supporting 

documentation or other evidence. 

Any response to the motion may be included in the response to the petition for review, the cross petition for review, or the response to the cross petition for review. The response will not extend the time provided by paragraph (d) of this section to file a cross petition for review or to respond to the petition or cross petition. In the absence of a motion, the Board may, in its discretion, determine on the basis of the existing record whether there was good cause for the untimely filing, or it may provide the party that submitted the document with an opportunity to show why it should not be dismissed or excluded as untimely. 

(g) Intervention - 

. . . 

. . . (i) Closing the record. The record closes 

on expiration of the period for filing the response to the petition for review, or to the cross petition for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party 

accompanied by any available documentation or other evidence supporting the matters asserted. 

(g) Late filings. Any pleading described in paragraph 

(a) that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (f) of this section, or unless a motion for extension is pending before the Board. The motion must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include: . . . 

(h) Length limitations. A petition for review, a cross 

petition for review, or a response to a petition or cross petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages. A reply to a response to petition for review shall be limited to 15 pages. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins. The length limitation shall be exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 7 days before the filing deadline. Such requests must give the reasons therefore as well as the desired length of the pleading, and are granted only in exceptional circumstances or if the Board in specific cases changes the length limitation. 

(i) Intervention – [unchanged] (j) Service. [unchanged] 

34
submitting it shows that the evidence 

was not readily available before the record closed. 

(k) Closing the record. The record closes on expiration 

of the period for filing the reply to the response to the petition for review, or on expiration of the period for filing a response to the cross petition for review, whichever is later, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed. 

§ 1201.115 Contents of petition for 

review. 

(a) The petition for review must state 

objections to the initial decision that are supported by references to applicable laws or regulations and by specific references to the record. 

(b)(1) If the appellant was the prevailing 

party in the initial decision, and the decision granted the appellant interim relief, any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). (2) If the appellant challenges the 

agency's certification of 

1201.115 Criteria for granting petition or cross 

petition for review 

The Board normally will consider only issues 

raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing by the petitioner that: (a) The initial decision contains erroneous findings of 

material fact; (1) Any alleged factual error must be material, 

meaning of sufficient weight to warrant an outcome different from that of the initial decision. 

(2) A petitioner who alleges that the judge made 

erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. 

(b) The initial decision is based on an erroneous 

As noted abois limited to tpetitions and All of the ruland procedurare now contThe proposed the criteria foreview to refto cover situahas denied a “reopened” tmotion” to adarguments or an initial decAs for updatiapplicable caseminal decisDepartment o129, 133 (19

F.2d 613 (9th 

35
compliance with the interim relief 

order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant may respond to the agency's submission of evidence within 10 days after the date of service of the submission. 

(3) If an appellant or an intervenor 

files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency's compliance with the interim relief order, upon order of the Board the agency must submit evidence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). 

(4) Failure by an agency to provide the 

certification required by paragraph (b)(1) of this section with its petition or cross petition for review, or to provide evidence of compliance in response to a Board order in accordance with paragraph (b)(2) or (b)(3) of this section, may result in the dismissal of the agency's petition or cross petition for review. 

(c) Nothing in paragraph (b) of this section 

shall be construed to require any 

interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case; 

(c) The judge’s rulings during either the course of the 

appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, resulting in harmful error to the petitioner; 

(d) New and material evidence or legal argument is 

available that, despite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. 

the Board stawill be overtuan erroneous regulation as an erroneous or regulationrequired that been materiato warrant a de.g., Urist v. Transportatio(1983) (any ipresiding offaffect the outCochran v. DM.S.P.R. 343the presiding findings of fato sexual harhandicap discsignificant efcase, the BoadeterminationThe other adda petition for where, in the stated that it review for fathe regulationappeal “on itproblems witby the petitiothat we are c§ 1201.118 th“reopening” 

36
payment of back pay for the period 

preceding the date of the judge's initial decision or attorney fees before the decision of the Board becomes final. 

(d) The Board, after providing the other 

parties with an opportunity to respond, may grant a petition for review when it is established that: (1) New and material evidence is 

available that, despite due diligence, was not available when the record closed; or 

(2) The decision of the judge is based 

on an erroneous interpretation of statute or regulation. 

be reserved fBoard has alrthe initial decBoard’s final law. 

§ 1201.116 Appellant requests for 

enforcement of interim relief. 

(a) Before a final decision is issued. If the 

agency files a petition for review or a cross petition for review and has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument 

§ 1201.116 Compliance with orders for interim 

relief. 

(a) Certification of compliance. If the appellant was the 

prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). 

(b) Challenge to certification. If the appellant 

challenges the agency’s certification of compliance with the interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant 

As modified, the existing cthe provision

37
to the appellant's request to dismiss 

within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit. 

(b) After a final decision is issued. If the 

appellant is not the prevailing party in the final Board order, and if the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under § 1201.182. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under § 1201.183. 

may respond to the agency’s submission of evidence within 10 days after the date of service of the submission. 

(c) Allegation of noncompliance in petition or cross 

petition for review. If an appellant or an intervenor 

files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency’s compliance with the interim relief order, upon order of the Board the agency must submit evidence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). 

(d) Request for dismissal for noncompliance with 

interim relief order. If the agency files a petition for review or a cross petition for review and has not provided required interim relief, the appellant may request dismissal of the agency’s petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency’s petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant’s request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit. 

(e) Effect of failure to show compliance with interim 

relief order. Failure by an agency to provide the certification required by paragraph (a) of this section with its petition or cross petition for review, 

38
or to provide evidence of compliance in response 

to a Board order in accordance with paragraphs (b), (c), or (d) of this section, may result in the dismissal of the agency’s petition or cross petition for review. 

(f) Back pay and attorney fees. Nothing in this section 

shall be construed to require any payment of back pay for the period preceding the date of the judge’s initial decision or attorney fees before the decision of the Board becomes final. 

(g) Allegations of noncompliance after a final decision 

is issued. If the initial decision granted the appellant interim relief, but the appellant is not the prevailing party in the final Board order disposing of a petition for review, and the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under § 1201.182. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order disposing of a petition for review, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under § 1201.183. 

§ 1201.117 Procedures for review or 

reopening. 

(a) In any case that is reopened or 

reviewed, the Board may: (1) Issue a single decision that denies 

§ 1201.117 Procedures for review or reopening. (a) In any case that is reopened or reviewed, the Board 

may: (1) Issue a decision that decides the case; 

The minor rereflects the si§ 1201.118, w“reopening” Board memba final order 

39
or grants a petition for review, 

reopens an appeal, and decides the case; 

(2) Hear oral arguments; (3) Require that briefs be filed; (4) Remand the appeal so that the 

judge may take further testimony or evidence or make further findings or conclusions; or 

(5) Take any other action necessary 

for final disposition of the case. 

(b) The Board may affirm, reverse, 

modify, or vacate the initial decision of the judge, in whole or in part. The Board may issue a final decision and, when appropriate, order a date for compliance with that decision. 

(c) The Board may issue a final decision in 

the form of a Final Order or an Opinion and Order. In the Board’s sole discretion, a Final Order may, but need not, include additional discussion of the issues raised in the appeal. All Final Orders are nonprecedential and may not be cited or referred to except by a party asserting issue preclusion, claim preclusion, collateral estoppel, res judicata, or law of the case. Only an Opinion and Order is a precedential decision of the Board, and an Opinion and Order may be appropriately cited or referred to by any party. 

. . . [The rest of the regulation is unchanged.] become the B

operation of 

40
§ 1201.118 Board reopening of case and 

reconsideration of initial decision. 

The Board may reopen an appeal and 

reconsider a decision of a judge on its own motion at any time, regardless of any other 

provisions of this part. 

§ 1201.118 Board reopening of final decisions. 

Regardless of any other provision of this part, the 

Board may at any time reopen any appeal in which it has issued a final order or in which an initial decision has become the Board’s final decision by operation of law. The Board will exercise its discretion to reopen only in unusual or extraordinary circumstances, such as the discovery of misrepresentation or fraud after issuance of the final decision, and only within a reasonably short period of time. 

The primary would be to cpractice of “rthe Board’s o§ 1201.118” review is denappropriate tOrder for som“reopening” be reserved fBoard has alrthe initial decBoard’s final law. We think thamisinterpretawhich provid“shall be finaappeal or the petitions the days after the (B) the Board case on its owthis, if either for review, thand there is nBoard issues Final Order. In addition to which an appproposed revanomaly in ththat, as prese1201.118 app

41
of initial deci

1201.118 nor regulation diauthority undreopen a finaBoard itself. addresses reodecisions, whor when an inthe Board’s fincorporates as to the rare in which the decision. We note that § 1201.118 mon the closinManager and external repodisposition oreason is that closing codes “reopened.” situations in been used in be appropriatregulation. Adiscontinuity in the Board’reports that wSome changecodes and intrequired. 

42
§ 1201.153 Contents of appeal. 

(a) Contents. An appeal raising issues of 

prohibited discrimination must comply with § 1201.24 of this part, with the following exceptions: . . . (2) The appeal must state whether the 

appellant has filed a formal discrimination complaint or a grievance with any agency. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the complaint or grievance. 

. . . 

§ 1201.153 Contents of appeal. (a) Contents. An appeal raising issues of prohibited 

discrimination must comply with § 1201.24 of this part, with the following exceptions: . . . (2) The appeal must state whether the appellant has 

filed a formal discrimination complaint or a grievance with any agency regarding the matter being appealed to the Board. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the complaint 

or grievance. 

. . . 

The addition

the first senteclarifies that matters may 

§ 1201.154 Time for filing appeal; 

closing record in cases involving grievance decisions. 

Appellants who file appeals raising 

issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits: . . . 

§ 1201.154 Time for filing appeal; closing record in 

cases involving grievance decisions. 

For purposes of this section, the date an appellant 

receives the agency’s decision is determined according to the standard set forth at § 1201.22(b)(3) of this title. 

Appellants who file appeals raising issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits: . . . 

This incorporgoverning coproposed for explanation a

43
§ 1201.155 Remand of allegations of 

discrimination. 

If the parties file a written agreement 

that the discrimination issue should be remanded to the agency for consideration, and if the judge determines that action would be in the interest of justice, the judge may take that action. The remand order will specify a time period within which the agency action must be completed. In no instance will that time period exceed 120 days. While the issue is pending with the agency, the judge will retain jurisdiction over the appeal. 

§ 1201.156 Time for processing appeals 

involving allegations of discrimination. 

. . . (c) Discrimination issue remanded to 

agency. When the judge remands an issue of discrimination to the agency, adjudication will be completed within 120 days after the agency completes its action and returns the case to the Board. 

We recommend that these provisions be deleted. We believe th

unnecessary have not been Existing pracsuspensions awithout prejusituations covregulations. 

§ 1201.154 Time for filing appeal; 

closing record in cases involving grievance decisions. 

. . . 

(New) 1201.155 Requests for review of arbitrators’ 

decisions. 

(a) Scope. If an individual has filed a grievance of 

action appealable to the Board with the agency under a negotiated grievance procedure, he may ask the Board to review the final decision on the 

Although reqarbitrators’ d§ 7121(d) by claims of unl5 U.S.C. § 23different from 

44
(d) This paragraph does not apply to 

employees of the Postal Service or to other employees excluded from the coverage of the federal labormanagement relations laws at chapter 71 of title 5, United States Code. If the appellant has filed a grievance with the agency under a negotiated grievance procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. The appellant's request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain: (1) A statement of the grounds on 

which review is requested; 

(2) References to evidence of record 

grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. This section does not apply to employees of the Postal Service or to other employees excluded from the coverage of the federal labor management laws at Chapter 71 of title 5, United States Code. 

(b) Time for filing. The appellant's request for Board 

review must be filed within 35 days after the date of issuance of the final decision or, if the appellant 

shows that he received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. 

(c) Contents. The appellant must file the request with 

the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain: (1) A statement of the grounds on which review is 

requested; 

(2) References to evidence of record or rulings 

related to the issues before the Board; 

(3) Arguments in support of the stated grounds that 

refer specifically to relevant documents, and that include relevant citations of authority; and 

(4) Legible copies of the final grievance or 

arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or 

covered by Sthat they havthe Board’s radministrativprovisions of this, arbitratoa much more than are decijudges. See, of Agricultur(2008). Because of ththought that single regulaWe therefore coverage from it into 1201.1§ 1201.155 wof discriminawhich is beinIn addition to regulatory lan

a new paragrthat the Boar“develop the prohibited dithe parties to or forwarding judge to condthis regard thallows the grdiscriminatiosuch claim warbitrator. SeDepartment o

45
or rulings related to the issues 

before the Board; 

(3) Arguments in support of the stated 

grounds that refer specifically to relevant documents, and that include relevant citations of authority; and 

(4) Legible copies of the final 

grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or tape recording of the hearing. 

(e) The record will close upon expiration 

of the period for filing the response to the petition for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed. 

recording of the hearing. 

(d) Development of the Record. The Board, in its 

discretion, may develop the record as to a claim of prohibited discrimination by ordering the parties to submit additional evidence or forwarding the request for review to a judge to conduct a hearing. 

(e) The record will close upon expiration of the period 

for filing the response to the request for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed. 

135-36 (Fed. circumstanceinsufficiently Board to resoclaim(s). Thwhen the claiarbitrator. Winsufficient, twould give thordering the record or forwadministrativevidence andmake factual 

§ 1201.181 Authority and explanation. (a) Under 5 U.S.C. 1204(a)(2), the Board 

has the authority to order any Federal agency or employee to comply with decisions and orders issued under its jurisdiction, and the authority to enforce compliance with its orders and decisions. The parties are expected to 

§ 1201.181 Authority and explanation. (a) Authority. Under 5 U.S.C. 1204(a)(2), the Board 

has the authority to order any Federal agency or employee to comply with decisions and orders issued under its jurisdiction, and the authority to 

enforce compliance with its orders and decisions. The Board's decisions and orders, when appropriate, will contain a notice of the Board's 

No substantivreorders the idescriptive la

46
cooperate fully with each other so that 

compliance with the Board's orders and decisions can be accomplished promptly and in accordance with the laws, rules, and regulations that apply to individual cases. The Board's decisions and orders will contain a notice of the Board's enforcement authority. 

(b) In order to avoid unnecessary petitions 

under this subpart, the agency must inform the appellant promptly of the actions it takes to comply, and it must tell the appellant when it believes it has completed its compliance. The appellant must provide all necessary information that the agency requests in order to comply, and, if not otherwise notified, he or she should, from time to time, ask the agency about its progress. 

enforcement authority. 

(b) Requirements for parties. The parties are expected 

to cooperate fully with each other so that compliance with the Board's orders and decisions can be accomplished promptly and in accordance with the laws, rules, and regulations that apply to individual cases. Agencies must promptly inform an appellant of actions taken to comply and must inform the appellant when it believes compliance is complete. Appellants must provide agencies with 

all information necessary for compliance and should monitor the agency’s progress towards compliance. 

§ 1201.182 Petition for enforcement. (a) Appellate jurisdiction. Any party may 

petition the Board for enforcement of a final decision or order issued under the Board's appellate jurisdiction. The petition must be filed promptly with the regional or field office that issued the initial decision; a copy of it must be served on the other party or that party's representative; and it must describe specifically the reasons the 

§ 1201.182 Petition for enforcement. (a) Appellate jurisdiction. Any party may petition the 

Board for enforcement of a final decision or order issued under the Board's appellate jurisdiction, or for enforcement of the terms of a settlement agreement that has been entered into the record for the purpose of enforcement in an order or decision under the Board’s appellate jurisdiction. The petition must be filed promptly with the regional or field office that issued the initial decision; a copy of it must be served on the other party or that 

The revised rBoard’s enfo5 U.S.C. § 12situations in Board to enfosettlement agrecord for puwell as to situasks the Boarfinal decision 

47
petitioning party believes there is 

noncompliance. The petition also must include the date and results of any communications regarding compliance. Any petition for enforcement that is filed more than 30 days after the date of service of the agency's notice that it has complied must contain a statement and evidence showing good cause for the delay and a request for an extension of time for filing the petition. 

(b) Original jurisdiction. Any party 

seeking enforcement of a final Board decision or order issued under its original jurisdiction must file a petition for enforcement with the Clerk of the Board and must serve a copy of that petition on the other party or that party's representative. The petition must describe specifically the reasons why the petitioning party believes there is noncompliance. 

(c) Petition by an employee other than a 

party. . . . 

party's representative; and it must describe specifically the reasons the petitioning party believes there is noncompliance. The petition also must include the date and results of any communications regarding compliance. Any petition for enforcement that is filed more than 30 days after the date of service of the agency's notice that it has complied must contain a statement and evidence showing good cause for the delay and a request for an extension of time for filing the petition. 

(b) Original jurisdiction. Any party seeking 

enforcement of a final Board decision or order issued under its original jurisdiction or enforcement of the terms of settlement agreement entered into the record for the purpose of enforcement in an order or decision issued under 

its original jurisdiction must file a petition for enforcement with the Clerk of the Board and must serve a copy of that petition on the other party or that party's representative. The petition must describe specifically the reasons why the petitioning party believes there is noncompliance. 

(c) Petition by an employee other than a party. . . . 

§ 1201.183 Procedures for processing 

petitions for enforcement. 

(a) Initial Processing. 

. . . (2) If the agency is the alleged 

noncomplying party, it shall 

§ 1201.183 Procedures for processing petitions for 

enforcement. 

(a) Initial Processing. 

. . . (2) If the agency is the alleged noncomplying 

party, it shall submit the name, title, grade, and 

The proposed the nature of decision in a from a “recominitial decisiothe Board’s ffor review is 

48
submit the name and address of 

the agency official charged with complying with the Board's order, even if the agency asserts it has fully complied. In the absence of this information, the Board will presume that the highest ranking appropriate agency official who is not appointed by the President by and with the consent of the Senate is charged with compliance. 

. . . (5) If the judge finds that: 

(i) The alleged noncomplying 

party has not taken, or has not made a good faith effort to take, any action required to be in compliance with the final decision, or 

(ii) The party has taken or made a 

good faith effort to take one or more, but not all, actions required to be in compliance with the final decision; he or she will issue a recommendation containing his or her findings, a statement of the actions required by the party to be in compliance with the final decision, and a recommendation that the Board enforce the final 

address of the agency official charged with complying with the Board's order, even if the agency asserts it has fully complied. The agency must advise the Board of any change to the identity or location of this official during the pendency of any compliance proceeding. In the absence of this information, the Board will presume that the highest ranking appropriate agency official who is not appointed by the President by and with the consent of the Senate is charged with compliance. 

. . . (5) If the judge finds that the alleged noncomplying 

party has not taken all actions required to be in full compliance with the final decision, the judge will issue an initial decision resolving all issues raised in the petition for enforcement, and identifying the specific actions the noncomplying party must take to be in compliance with the Board’s final decision. If the noncomplying party is the agency, the initial decision will further document the responsible agency official, previously identified pursuant to paragraph (a)(2) of this section, who shall not be entitled to receive payment for service as an employee during the period of noncompliance, if the initial decision becomes the Board’s final decision on the issue of compliance, pursuant to paragraph (b) of this section, and the provisions of 5 U.S.C. § 1204(e)(2)(a). A copy of the initial decision will be served on the responsible agency official. 

goal is to ensthat all relevaduring the reand that the iresolves all cjudge will issresolving all for enforcemspecific actiomust take . . regulation pragency officisuspended shnoncomplianfinal decision of any initial agency in noTo the extent in noncomplicompliance ainitial decisioincreases the evidence of c30 days. Thireasons. Firsis the first timdefinitively wdays would rtaken all requissuance of Saction taken Second, we fdifferent deaevidence of ccontesting co

49
decision. 

(6) If a recommendation described 

under paragraph (a)(5) of this 

section is issued, the alleged noncomplying party must do one of the following: (i) If it decides to take the actions 

required by the recommendation, it must submit to the Clerk of the Board, within 15 days after the issuance of the recommendation, evidence that it has taken those actions.

(ii) If it decides not to take any of 

the actions required by the recommendation, it must file a brief supporting its nonconcurrence in the recommendation. The brief must be filed with the Clerk of the Board within 30 days after the recommendation is issued and, if it is filed by the agency, it must identify by name, title, and grade the agency official responsible for the failure to take the actions required by the recommendation for compliance. 

(iii) If the party decides to take 

one or more, but not all, actions required by the 

(6) If an initial decision described under paragraph 

(a)(5) of this section is issued, the party found to be in noncompliance must do the following: (i) To the extent that the party decides to take 

the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under section 1201.114(d) of this part, a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions. The narrative statement must explain in detail why the evidence of compliance satisfies the requirements set forth in the initial decision. 

(ii) To the extent that the party decides not to 

take any of the actions required by the initial decision, the party must file a petition for review under the provisions of sections 1201.114 and 1201.115 of this part. 

(iii) The responses required by the preceding 

two paragraphs may be filed separately or as a single pleading. 

If the agency is the party found to be in noncompliance, it must advise the Board, as part of any submission under this paragraph, of any change in the identity or location of the official responsible for compliance previously provided pursuant to paragraph (a)(2). 

(7) The petitioner may file evidence and argument 

in response to any submission described in 

which the agpetition for reregard that 15 small part of compliance pheadquarters an X-File produring the pafollows: 268 to 6/30/11); 1171 days in FAs noted abo1201.182 expconsiders pettwo different Board has oraction and (2entered a settrecord for en(c) to section case law regaof proof that actions depenis adjudicatinrelief ordered status quo anhas not sustapetition to enagreement ththe other partv. National E

F.2d 730, 732(emphasizing ensuring statucompliance a

50
recommendation, it must 

submit both evidence of the actions it has taken and, with respect to the actions that it has not taken, a brief supporting its disagreement with the recommendation. The evidence and brief must be filed with the Clerk of the Board within 30 days after issuance of the recommendation and, if it is filed by the agency, it must contain the identifying information required by paragraph (a)(6)(ii) of this section. 

(7) The petitioner may file a brief that 

responds to the submission described in paragraph (a)(6) of this section, and that asks the Board to review any finding in the recommendation, made under paragraph (a)(5)(ii) of this section, that the other party is in partial compliance with the final decision. The petitioner must file this brief with the Clerk of the Board within 20 days of the date of service of the submission described in paragraph (a)(6) of this section. 

(b) Consideration by the Board. 

(1) The Board will consider the 

paragraph (a)(6) by filing opposing evidence and argument with the Clerk of the Board within 20 days of the date such submission is filed. 

(b) Consideration by the Board. 

(1) Following review of the initial decision and the 

written submissions of the parties, the Board will render a final decision on the issues of compliance. Upon finding that the agency is in noncompliance, the Board may, when appropriate, require the agency to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency to make this showing in writing, or to make it both personally and in writing. 

(2) The Board's final decision on the issues of 

compliance is subject to judicial review under § 1201.120 of this part. 

 . . (c) Burdens of proof. If an appellant files a petition for 

enforcement seeking compliance with a Board order, the agency generally has the burden to prove its compliance with the Board order by a preponderance of the evidence. However, if any party files a petition for enforcement seeking compliance with the terms of a settlement agreement, that party has the burden of proving the other party’s breach of the settlement agreement by a preponderance of the evidence. 

[Existing paragraphs (c) and (d) would become (d) and (e).] 

substantive aactual duties which the emeither the samequivalent in duties and rethe wrongful Department o530, ¶ 14 (20an agency acmust return tpossible, to threquires, in mappellant to tprior to the ahim in a posiequivalent); FAdministratio71 (1988) (adthat an action agreement is breach of conproof in an arests on the pand the Fedethat, even thoalleges that thsettlement agof proof, the produce relevcompliance. the Army, 99Cir. 1993); F371. 

51
recommendation, along with the 

submissions of the parties, promptly. When appropriate, the Board may require the alleged noncomplying party, or that party's representative, to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the party or its representative to make this showing in writing, or to make it both personally and in writing. 

(2) The Board may hold a hearing on 

an order to show cause, or it may issue a decision without a hearing. 

. . . 

§ 1208.21 VEOA exhaustion 

requirement. 

Before an appellant may file a VEOA 

appeal with the Board, the appellant must first file a complaint under 5 U.S.C. 3330a(a) with the Secretary of Labor within 60 days after the date of the alleged violation and allow the Secretary at least 

60 days from the date the complaint is filed to attempt to resolve the complaint. 

§ 1208.21 VEOA exhaustion requirement. (a) General rule. Before an appellant may file a VEOA 

appeal with the Board, the appellant must first file a complaint under 5 U.S.C. 3330a(a) with the 

Secretary of Labor within 60 days after the date of the alleged violation. In addition, either the Secretary must have sent the appellant written notification that efforts to resolve the complaint were unsuccessful or, if the Secretary has not issued such notification and at least 60 days have elapsed from the date the complaint is filed, the appellant must have provided written notification to the Secretary of the appellant’s intention to file 

The purpose paragraph (a) appellant’s bexhaustion in 1208.21 currexhaust his aDOL, an appwith DOL anresolve the coprovides an ipicture of the incomplete bthe exhaustioclose the com

52
an appeal with the Board. 

(b) Equitable tolling. The appellant’s 60-day deadline 

for filing a complaint with the Secretary is subject to equitable tolling under certain situations, such as where the appellant has actively pursued his or her judicial or administrative remedies by filing a defective pleading during the statutory period, or has been induced or tricked by his or her adversary's misconduct into allowing the filing deadline to pass. 

accord or basappellant aftestating that thBoard appeal(d)(1); BurroDefense, 114 

(2010) (the afinding that tadministrativon the mere fa complaint aappealing to Department oM.S.P.R. 327§ 1208.23(a)because it dothat DOL mibefore 60 dayproposed revaccurate and required to eVEOA appeaThe addition equitable tollCircuit’s ruliDepartment o836-44 (Fed. 

§ 1208.22 Time of filing. (a) Unless the Secretary of Labor has 

notified the appellant that the Secretary's efforts have not resolved the VEOA complaint, a VEOA appeal may not be filed with the Board before the 61st day after the date on which 

§ 1208.22 Time of filing. (a) Unless the Secretary of Labor has notified the 

appellant that the Secretary's efforts have not resolved the VEOA complaint, a VEOA appeal may not be filed with the Board before the 61st day after the date on which the appellant filed the complaint under 5 U.S.C. 3330a(a) with the 

Paragraph (cthe possibilitfiled appeal uequitable toll

53
the appellant filed the complaint under 

5 U.S.C. 3330a(a) with the Secretary. 

(b) If the Secretary of Labor notifies the 

appellant that the Secretary's efforts have not resolved the VEOA complaint and the appellant elects to appeal to the Board under 5 U.S.C. 3330a(d), the appellant must file the VEOA appeal with the Board within 15 days after the date of receipt of the Secretary's notice. A copy of the Secretary's notice must be submitted with the appeal. 

Secretary. 

(b) If the Secretary of Labor notifies the appellant that 

the Secretary's efforts have not resolved the VEOA complaint and the appellant elects to appeal to the Board under 5 U.S.C. 3330a(d), the appellant must file the VEOA appeal with the Board within 15 days after the date of receipt of the Secretary's notice. A copy of the Secretary's notice must be submitted with the appeal. 

(c) Equitable tolling. The appellant’s 15-day deadline 

for filing a Board appeal is subject to equitable tolling under certain situations, such as where the appellant has actively pursued his or her judicial or administrative remedies by filing a defective pleading during the statutory period, or has been induced or tricked by his or her adversary's misconduct into allowing the filing deadline to pass. 

§ 1208.23 Content of a VEOA appeal; 

request for hearing. 

(a) Content. A VEOA appeal may be in 

any format, including letter form, but must contain the following: (1) The nine (9) items or types of 

information required in 5 CFR 1201.24(a)(1) through (a)(9); 

(2) Evidence or argument that the 

appellant is a preference eligible; 

(3) A statement identifying the statute 

or regulation relating to veterans' 

§ 1208.23 Content of a VEOA appeal; request for 

hearing. 

(a) Content. A VEOA appeal may be in any format, 

including letter form, but must contain the following: (1) The nine (9) items or types of information 

required in 5 CFR 1201.24(a)(1) through (a)(9); 

(2) Evidence or argument that the appellant is a 

preference eligible; 

(3) A statement identifying the statute or regulation 

relating to veterans' preference that was 

Subparagraphsection 1208appeal contaiBoard jurisdiDepartment o502, ¶ 9 (201in a VEOA acurrent subpathat an appelexhausted his Downs v. DepAffairs, 110 M(exhaustion oremedy is a j

54
preference that was allegedly 

violated, an explanation of how the provision was violated, and the date of the violation; 

(4) Evidence that a complaint under 

5 U.S.C. 3330a(a) was filed with the Secretary of Labor, including the date the complaint was filed; and 

(5)(i) Evidence that the Secretary has 

notified the appellant in accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have not resolved the complaint (a copy of the Secretary's notice satisfies this requirement); or (ii) Evidence that the appellant 

has provided written notice to the Secretary of the appellant's intent to appeal to the Board, as required by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to the Secretary satisfies this requirement). 

. . . 

allegedly violated, an explanation of how the provision was violated, and the date of the violation; 

(4) Evidence that a complaint under 5 U.S.C. 

3330a(a) was filed with the Secretary of Labor, including the date the complaint was filed; 

(5) Evidence identifying the specific veterans’ 

preference claims that the appellant raised before the Secretary; and 

(6)(i) Evidence that the Secretary has notified the 

appellant in accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have not resolved the complaint (a copy of the Secretary's notice satisfies this requirement); or (ii) Evidence that the appellant has provided 

written notice to the Secretary of the appellant's intent to appeal to the Board, as required by 5 U.S.C. 3330a(d)(2) (a 

copy of the appellant's written notice to the Secretary satisfies this requirement). 

. . . 

a VEOA appprovisions perequirement Board and thfound that thjurisdiction oclaims for whexhausted his See Gingery Treasury, 20

Cir. 2010); Bthe Army, 20White v. U.S. 

M.S.P.R. 574

of the statuto“file a compl‘a summary othe basis for 2010 WL 393

U.S.C. § 3332011 MSPB this requiremopportunity tbefore involvmatter, which of the exhausappeal. See Gat *5 (citing Protection B(Fed. Cir. 19MSPB 30, ¶ make a jurisdappeal, it muparticular claraised before 

55
meet the liter

Board’s curresubmitting anBecause it is the court will issue in a VEthat they scruin an IRA apregulations oto reflect that WL 3937577 appellant’s cinform the Dviolation or glacks jurisdicBoechler v. D109 M.S.P.R

may consider whistleblowibefore OSC)(Fed. Cir. 20would, therefsubparagraph 1208.23(a)(4VEOA appeaidentify the sappellant raisIn drafting thconsidered thexhaust his aissue that waoriginal 5 U.

itself. Cf. CoSecurity Adm583, ¶ 19 (20

56
exhaustion re

appeal] has bnot limited binitial complsubsequent cTherefore, thnot require an evidence of t“complaint,” the requiremsatisfied by scomplaint. Ramendment iencompass amight have gto pursue durcomplaint pr

§ 1209.2 Jurisdiction. (a) Under 5 U.S.C. 1214(a)(3), an 

employee, former employee, or applicant for employment may appeal to the Board from agency personnel actions alleged to have been threatened, proposed, taken, or not taken because of the appellant's whistleblowing activities. 

(b) The Board exercises jurisdiction over: 

(1) Individual right of action appeals. 

These are authorized by 5 U.S.C. 1221(a) with respect to personnel actions listed in § 1209.4(a) of this part that are allegedly threatened, proposed, taken, or 

§ 1209.2 Jurisdiction. (a) Under 5 U.S.C. 1221(a), an employee, former 

employee, or applicant for employment may appeal to the Board from agency personnel actions alleged to have been threatened, proposed, taken, or not taken because of the appellant’s whistleblowing activities. 

(b) The Board exercises jurisdiction over: 

(1) Individual right of action (IRA) appeals. These 

are authorized by 5 U.S.C. 1221(a) with respect to personnel actions listed in § 1209.4(a) of this part that are allegedly threatened, proposed, taken, or not taken because of the appellant’s whistleblowing activities. If the action is not otherwise directly appealable to the Board, the appellant 

This proposea significant Starting with v. DepartmenM.S.P.R. 318 consistently man individual otherwise appagainst him iwhistleblowiseeks correctCounsel befoBoard, retainwith an otherthe Board apfor example, charges, nexuof the penalty 

57
not taken because of the 

appellant's whistleblowing activities. If the action is not otherwise directly appealable to the Board, the appellant must seek corrective action from the Special Counsel before appealing to the Board. 

Example: Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because he reported that his supervisor embezzled public funds in violation of federal law and regulation. Because a performance evaluation is not an otherwise appealable action, Mr. X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Mr. X appeals the evaluation to the Board after the Special Counsel proceeding is terminated or exhausted, his appeal is an individual right of action appeal. 

(2) Otherwise appealable action 

appeals. These are appeals to the Board under laws, rules, or 

must seek corrective action from the Special Counsel before appealing to the Board. 

Example: Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because he reported that his supervisor embezzled public funds in violation of federal law and regulation. Because a performance evaluation is not an otherwise appealable action, Mr. X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Mr. X appeals the evaluation to the Board after the Special Counsel proceeding is terminated or exhausted, his appeal is an individual right of action appeal. Example: As above, Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because he previously filed a Board appeal of the agency’s action suspending him without pay for 15 days. The Board would not have jurisdiction over the performance evaluation as an IRA appeal because the appellant has not made an allegation of a violation of 5 U.S.C. 2302(b)(8), i.e., a claim of retaliation for a protected whistleblowing disclosure. Retaliation for filing a Board appeal would constitute a different prohibited personnel 

evidence, and assert any affhave, includiand discriminRehabilitatiohowever, the Board is whemore covered the appellant protected whAlthough the 1209 do not sramifications they are madHandbook as 

In 1994, the yissued, Cong

§ 7121 to add No. 103-4244365-66 (199provides that prohibited penot more than (A) an appea5 U.S.C. § 77grievance un(C) correctivII and III of 5 complaint filwhich can be appeal filed wUnder subsecdeemed to hawhich of the files first. 

58
regulations other than 5 U.S.C. 

1221(a) that include an allegation that the action was based on the appellant's whistleblowing activities. The appellant may choose either to seek corrective action from the Special Counsel before appealing to the Board or to appeal directly to the Board. (Examples of such otherwise appealable actions are listed in 5 CFR 1201.3(a)(1) through (a)(19).) 

Example: Agency B removes Ms. Y for alleged misconduct under 5 U.S.C. 7513. Ms. Y believes that the agency removed her because of her whistleblowing activities. Because the removal action is appealable to the Board under some law, rule or regulation other than 5 U.S.C. 1221(a), Ms. Y may choose to file an appeal with the Board without first seeking corrective action from the Special Counsel or to seek corrective action from the Special Counsel and then appeal to the Board. 

(3) Stays. Where the appellant alleges 

that a personnel action was or will be based on whistleblowing, the Board may, upon the appellant's 

practice, 5 U.S.C. 2302(b)(9), retaliation for having exercised an appeal, complaint, or grievance right granted by any law, rule, or regulation. Example: As above, Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Mr. X believes that the agency has rated him “minimally satisfactory” because he testified on behalf of a co-worker in an EEO proceeding. As in the previous example, the Board would not have jurisdiction over the performance evaluation as an IRA appeal because the appellant has not made an allegation of a violation of 5 U.S.C. 2302(b)(8), i.e., a claim of retaliation for a protected whistleblowing disclosure. Retaliation for protected EEO activity is a prohibited personnel practice under 5 U.S.C. 2302(b)(9), not under section 2302(b)(8). 

(2) Otherwise appealable action appeals. These are 

appeals to the Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that include an allegation that the action was based on the appellant’s whistleblowing activities. (Examples of such otherwise appealable actions are listed in 5 CFR 1201.3(a).) An individual who has been subjected to an otherwise appealable action must make an election of remedies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of this section. 

A plain readithat, contrary individual whotherwise appseeks correctfiling an appeelected an IRthe rights assappeal, i.e., tBoard is whemore covered the appellant protected whthe agency neof its case, anraise other afBoard has neamended its hlight of the 17121, despite suggested tharegulatory gu§ 1201.21 “to to file a prohcomplaint withe requiremamong a grieand a complaSee 65 Fed. RThe long-term proposed chastraightforwaotherwise appwould be req§ 1201.21, to 

59
request, order an agency to 

suspend that action. 

Example: [no change] 

(3) Stays. [no change] 

(c) Issues before the Board in IRA appeals. In an 

individual right of action appeal over which the Board has jurisdiction, the only issues before the Board are those listed in 5 U.S.C. 1221(e), i.e., whether the appellant has demonstrated that one or more whistleblowing disclosures was a contributing factor in one or more covered personnel actions and, if so, whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action(s) in the absence of the protected disclosure(s). The appellant may not raise affirmative defenses other than reprisal for whistleblowing activities, such as claims of discrimination or harmful procedural error. In an IRA appeal that concerns an adverse action under 5 U.S.C. 7512, the agency need not prove its charges, nexus, or the reasonableness of the penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action is taken “only for such cause as will promote the efficiency of the service.” However, the Board may consider the strength of the agency’s evidence in support of its adverse action in determining whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure(s). 

(d) Elections under 5 U.S.C. 7121(g). 

(1) Under 5 U.S.C. 7121(g)(3), an employee who 

believes he or she was subjected to a covered personnel action in retaliation for protected 

options undeconsequenceincluding the would be forhe or she seeOSC before fThere would questions conalready in the be whether, dlanguage and § 7121(g), thdeemed to habinding electmade that an unless it consinformed decSystems Prot1324, 1326-2(concluding tknowing and binding electThe proposed resolve this qresolved in pBoard were twere not bindwould be whexcuse the unappeal, which the 30-day de§ 1201.22(b)resolved in p

The referenc

60
whistleblowing “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 (section 1214), which can be followed by an IRA appeal filed with the Board (section 1221). Under subsection 7121(g)(4), an election is deemed to have been made based on which of the 3 actions the individual files first. 

(2) In the case of an otherwise appealable action as 

described in paragraph (b)(2) of this section, an employee who files a complaint with OSC prior to filing an appeal with the Board has elected corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with OSC, which can be followed by an IRA appeal with the Board. As described in paragraph (c) of this section, the IRA appeal in such a case is limited to resolving the claim(s) of reprisal for whistleblowing activities. 

changed from 5 U.S.C. 122is the one thaBoard for claprotected wh1214(a)(3) corequirement that do not inappealable acIn its present contains a sinappeal. Two been added, inot have juriclaim as an IRinvolve situawould have c5 U.S.C. § 23§ 2302(b)(8)(b)(9) claims making protedisclosures. otherwise appthe Board doover claims o

§ 1209.4 Definitions. . . . (b) Whistleblowing is the disclosure of 

information by an employee, former employee, or applicant that the individual reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of 

§ 1209.4 Definitions. . . . (b) Whistleblowing is the making of a protected 

disclosure, that is, a dislcosure of information by an employee, former employee, or applicant that the individual reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to 

The Board’s acknowledgmorders, speak disclosures,” “whistleblowregulations re“whistleblowrevision to thtwo concepts “whistleblow

61
authority, or substantial and specific 

danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it. 

. . . 

public health or safety. It does not include a disclosure that is specifically prohibited by law or 

required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it. 

. . . 

ambiguous. 

§ 1209.5 Time of filing. (a) Individual right of action appeals. The 

appellant must seek corrective action from the Special Counsel before appealing to the Board. Where the appellant has sought corrective action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed: (1) No later than 65 days after the date 

of issuance of the Office of Special Counsel’s written notification to the appellant that it was terminating its investigation of the appellant’s allegations or, if the appellant shows that the Special Counsel’s notification was received more than 5 days after the date of issuance, within 

§ 1209.5 Time of filing. (a) Individual right of action appeals. The appellant 

must seek corrective action from the Special Counsel before appealing to the Board. Where the appellant has sought corrective action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed: (1) No later than 65 days after the date of issuance 

of the Office of Special Counsel’s written notification to the appellant that it was terminating its investigation of the appellant’s allegations or, if the appellant shows that the Special Counsel’s notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel’s notification; or, 

(2) If the Office of Special Counsel has not notified 

the appellant that it will seek corrective action on the appellant's behalf within 120 days of the 

In a number has considereappeal can be doctrine of eq

Pacilli v. DepAffairs, 113 M10; Bauer v. 88 M.S.P.R. v. DepartmenM.S.P.R. 587appeals, we bof excusing tdoctrine of eqaddressed in regulation. 

62
60 days after the date the 

appellant received the Special Counsel’s notification; or, 

(2) If the Office of Special Counsel 

has not notified the appellant that it will seek corrective action on the appellant's behalf within 120 days of the date of filing of the request for corrective action, at any time after the expiration of 120 days. 

. . . 

date of filing of the request for corrective action, at any time after the expiration of 120 days. 

(3) Equitable tolling. The appellant’s deadline for 

filing an individual right of action appeal with the Board after receiving written notification from the Office of Special Counsel that it was terminating its investigation of his or her allegations is subject to equitable tolling under certain situations, such as where the appellant has actively pursued his or her judicial or administrative remedies by filing a defective pleading during the statutory period, or has been induced or tricked by his or her adversary's misconduct into allowing the filing deadline to pass. 

. . . 

§ 1209.6 Content of appeal; right to 

hearing. 

. . . (b) Right to hearing. An appellant has a 

right to a hearing. 

. . . 

§ 1209.6 Content of appeal; right to hearing. . . . (b) Right to hearing. An appellant generally has a right 

to a hearing if the appeal has been timely filed and the Board has jurisdiction over the appeal. 

. . . 

As with the p1201.24(d), tthat an appelhave a right tappeal; the riwhen the appand the appeljurisdiction o

63