UNITED STATES MERIT SYSTEMS PROTECTION BOARD 

REGULATIONS REVIEW STAKEHOLDERS MEETING 

Washington, D.C.

Tuesday, March 6, 2011
PARTICIPANTS:

Stakeholders:

PETER BROIDA, Esquire 

RUSSELL CHRISTENSEN, Esquire, Federal Aviation 

Administration (FAA)

ROBERT GIROUARD, Senior Counsel, Office of 

Personnel Management (OPM)

ERIC GUTIERREZ, Esquire, National Employment 

Lawyers Association (NELA)

CATHERINE KESSMEIER, Esquire, Deputy Assistant 

General Counsel, Department of the Navy

JOHN MAHONEY, Esquire, Tully Rinckey, PLLC 

ANDREW PERLMUTTER, Esquire, representing 

Passman & Kaplan, P.C., and the Metropolitan 

Washington Employment Lawyers Association

(MWELA)

MSPB Staff:

LYNORE M. CARNES, Office of Appeals Counsel 

MICHAEL A. CARNEY, Office of General Counsel 

TOM COOK, Chief Counsel to the Chairman 

BERNARD E. DOYLE, Chief Counsel to the Vice 

Chairman 

JAMES EISENMANN, General Counsel 

TIMOTHY L. KORB, Office of Appeals Counsel 

STEVE LENKART, Executive Director 

WILLIAM SPENCER, Clerk of the Board 
SUSAN M. SWAFFORD, Office of Appeals Counsel 

RICHARD W. VITARIS, Atlanta Regional Office 

RONALD WEISS, Office of Regional Operations

* * * * * 
P R O C E E D I N G S

(10:03 a.m.)

MR. EISENMANN: Good morning and 

thanks for your attendance and participation 

today. This is a meeting of MSPB senior staff 

and various stakeholders concerning our 

internal review of MSPB's adjudicatory 

regulations at 5 CFR parts 1201, 1208, and 

1209. At this time, I would ask that we go 

around the room and introduce ourselves and 

identify our affiliations. I'll start with 

me. My name is Jim Eisenmann. I'm the MSPB's 

general counsel.

MR. SPENCER: I'm Bill Spencer, 

clerk of the Board.

MR. GIROUARD: Robert Girouard, 

Office of General Counsel of OPM.

MR. BROIDA: Peter Broida, I'm a 

practitioner.

MR. GUTIERREZ: I'm Eric Gutierrez 

with the National Employment Lawyers 

Association.

MR. MAHONEY: I'm John Mahoney and 

partner with Tully Rinckey.
MR. PERLMUTTER: I'm Andrew 

Perlmutter, representing both Passman & Kaplan 

and the Metropolitan Washington Employment 

Lawyers Association, MWELA.

MR. CHRISTENSEN: Russell 

Christensen, I'm representing the Federal 

Aviation Administration this morning.

MS. KESSMEIER: I'm Cathy Kessmeier, 

representing the Department of Navy Office of 

General Counsel.

MR. COOK: Thomas Cook, I'm chief 

counsel to Chairman Grundmann.

MR. VITARIS: Richard Vitaris, I'm 

an administrative judge with the Merit Systems 

Protection Board's Atlanta Regional Office.

MS. CARNES: Lynore Carnes, Office 

of Appeals Counsel and moving to the 

Chairman's office next month.

MR. DOYLE: Bernard Doyle, I'm chief 

counsel to the vice-chairman.

MR. CARNEY: Michael Carney, I'm a 

staff attorney in the Office of General 

Counsel.

MS. SWAFFORD: Susan Swafford, 
Office of Appeals Counsel.

MR. WEISS: Ron Weiss, I'm an 

administrative judge with the Office of 

Regional Operations.

MR. KORB: I'm Tim Korb, an attorney 

in the Office of Appeals Counsel.

MR. LENKART: Steve Lenkart, 

Executive Ddirector of MSPB.

MR. EISENMANN: Okay. All right. 

Thank you. As you know, Chairman Grundmann is 

improving transparency and openness to MSPB's 

operations. The key aspect of this initiative 

is to reach out to the MSPB stakeholders on a 

variety of issues. The Board previously 

consulted with stakeholders concerning the 

MSPB's studies function and held various 

stakeholder meetings. Our meeting today is 

another attempt to learn from our stakeholders 

and have stakeholders participate in the 

regulation review process.

Last year, the Chairman asked an 

internal working group to review MSPB's 

adjudicatory regulations and to suggest areas 

where they may be changed, improved, or 
updated. Ultimately, this will take the form 

of notice and comment rule-making via federal 

registrar as required by the administrative 

procedure act. The MSPB working group 

performed an in-depth review of our 

regulations and identified a number of 

proposed revisions. But before undertaking 

formal rule-making we saw input from our 

stakeholders in accordance with the public 

participation requirement and executor 13563 

improving regulation and regulatory review.

On October 19, 2011, the Chairman 

sent copies of the working group's proposed 

revisions to various MSPB's stakeholders 

seeking initial comments. In the Chairman's 

October 19th letter to you, we emphasized that 

the proposed revisions should be considered 

preliminary and tentative in nature and that 

no decisions have been made as to which 

suggestions would become part of the noticed 

proposed rule- making or the precise language 

of any proposed revisions to our regulations. 

You are some of the stakeholders who responded 

to the Chairman's October 19th letter with 
subtenant written comments regarding the 

working group's suggested changes to MSPB's 

adjudicatory regulations. We greatly 

appreciate your previous written responses.

On February 6th, the Board invited 

you to participate in this meeting to provide 

oral comments regarding the Board's 

adjudicatory regulations. So, today, we would 

like to hear further from you on any matter 

relevant to the Board's adjudicatory 

regulations.

A few things before we begin. Each 

of you is allotted 10 minutes to address any 

aspect of the Board's adjudicatory regulations 

on which you would like to comment. The only 

exception to that is Mr. Perlmutter who is 

representing both his law firm and an 

association. He is allotted 15 minutes total. 

We are seeking your individual feedback not 

collective advice from the group. None of the 

MSPB employees present are speaking for the 

Board or a board member. The MSPB employees 

present today will not be commenting on any 

aspect of your presentations today or prior 
written comments.

A transcript of this meeting will be 

placed on the Board's website when it is 

available. Bill Spencer, the clerk of the 

Board will monitor the time and inform you 

when you are nearly out of time and when your 

time is expired. We'll go alphabetically by 

last name beginning with non-government 

organizations and followed by federal 

agencies. Peter, we'll start with you.

MR. BROIDA: Thank you, Judge, and 

my good friends of the Board. Well, folks 

I've worked with over the years I appreciate 

the opportunity to speak with you today. I've 

written at the end of November some comments 

on the proposed changes. I'm not going to 

repeat those to a great relief. I will, 

however, add a few suggestions on areas that 

the Board might consider in the course of its 

regulatory revision process. And these are in 

no particular order except what I thought of 

late last night.

First, let me talk about the time 

limit for the Board appeal identified at 
1201.22 of the Board's regulations. The time 

limit is not statutory, although the 

regulatory time limit has been in effect so 

long one would think it was statutory. There 

are a couple aspects of this that I think 

merit the Board's consideration first. Some 

years ago, the Board slightly varied the time 

limit for an appeal by allowing additional 

time for those who engage in pre-appeal 

mediation. Now, I cannot think of a single 

case where that has occurred but then I'm not 

familiar with all the cases that come before 

the Board. If that process is not being used 

and it does seem somewhat unlikely that an 

agency would immediately move to mediation 

after having spent years attempting to fire an 

individual, then I think if the provision is 

not being used it should be omitted.

The regulations of the Board allow a 

very short time limit for an appeal. Thirty 

days is not much time for a person to go out 

and secure counsel and square up what they're 

going to do after they've been fired and get 

the financing necessary or try to figure out 
the Board's regulations. It's shorter than 

even the EEO process, 45 days to go to a 

counsel, much shorter than the six months 

allowed to file an unfair labor practice 

charge with the FRLA.

I don't fundamentally have a problem 

with a relatively short time limit except in 

one area that I think has unintentionally 

caused a lot of hardship for a class of 

appellants. And this group I speak of are 

those with vested retirement benefit claims. 

And too often the Board has found an appeal 

late on a retirement claim even though it's 

just a few days late. Although, I must say in 

recent years, the Board has changed that 

practice and showed more flexibility. For a 

vested retirement claim, I can see no purpose 

for a 30- day limitation on the appeal period. 

OPM loses nothing if the appeal is somewhat 

delayed. And I would urge instead that the 

Board adopt an approach that would apply the 

doctrine of Laches rather than a 30-day period 

for an appeal from a retirement benefit denial 

like OPM.
The next topic I wanted to speak 

about was the Regularization of the Process of 

Dismissals without Prejudice to Re-file. It's 

no big secret that judges are driven by 

performance standards and the performance 

standards depend in a large part upon 

productivity requirements. And the judges 

have seized upon dismissals without prejudice 

to satisfy their productivity requirements in 

part. And they, as well as the parties are 

pleased with the use of the process. However, 

the process is not consistently applied by 

judges. Some judges, even the case that does 

not involve the VEOA or USERRA will provide 

for automatic re-filing of a case that's 

dismissed without prejudice to re-file. Other 

judges don't think to do that or the parties 

don't think to ask for it. And as a result 

from time to time, people are defaulted when 

they re- file their cases a few days late. 

The Board tends to apply the same standards 

with respect to late re-filings of DWOP 

applications as it does for cases that are 

belatedly filed the first time around.
What I urge is that the Board place 

the DWOP process into its regulations and that 

it require judges absent extraordinary 

circumstances to automatically re-file the 

appeals for the appellant, avoiding defaults. 

Linked to this is the suspension process at 

1201.28 from the Board's regulations. There 

was a time when the suspension process first 

came into effect that if the parties agreed to 

a suspension the judge had to grant it. Now, 

for reasons that I could never understand I 

believe the judges opposed this because they 

believe it withdrew some of the control of the 

case from the judges. I think the Board needs 

to recognize that the case is something that 

is part of the process employed by the 

parties. The parties do not serve the Board; 

the Board serves the parties and the public 

interest. If the parties want a suspension 

for 30 days which isn't all that long I think 

that they should get it without regard to the 

discretionary ability of the judge to deny it. 

So, I urge you to change the regulation back 

to what it was before this was performed.
Witness Fees 1201.37, it would seem 

a fairly straight forward provision with 

respect to witness fees. However, what occurs 

under the Board's regulation is that if the 

government subpoenas a witness the government 

is not required to advance the witness fees or 

the travel expense or the lodging expense to 

the witness who has been subpoenaed. 

Theoretically, what happens is the witness 

travels, finds a hotel, shows up at the 

Board's hearing location, and signs a voucher 

for those expenses if the agency 

representative thinks to bring a voucher. 

This is unrealistic. In my estimation, what 

the Board should do is change the regulation 

to require prepayment of those fees to avoid 

hardship to people who are subpoenaed.

Public Hearings, 1201.52 with the 

Board's regulations, the regulation requires a 

public hearing as does the statute. Very few 

people actually attend these hearings. When 

they do, I've had the experience that some 

people show up at a hearing room and find the 

hearing room locked because the judge doesn't 
want to be disturbed by people coming in. 

Either change the regulation or change the 

practice in two ways. One, post notices on 

the Board's website with respect to hearings 

that are occurring in various offices. You 

don't have to list the appellant's name. You 

could do so by a general description of the 

case and the time. And secondly, absent 

extraordinary reasons require the judges to 

allow the public to come and go as they choose 

as long as they're not disruptive to the 

proceedings just as you find in district 

courts and courts of appeals.

Closing the Record, 1201.58 there's 

been many cases dealing with judges who allow 

the record to close and one party or the other 

submits new evidence at the time the record 

closes and the other side sees the evidence 

for the first time and has to figure how to 

deal with it. And the problem is they don't 

deal with it very well. I suggest that the 

Board modify that regulation to ensure due 

process to people to allow a reply right when 

the record is closed and new evidence is 
received from one of the parties.

Interlocutory Appeals, 1201.92. The 

regulation parallels 28 U.S.C. 1292, which 

allows for an interlocutory appeal based on 

the certification as to a ruling by the judge. 

Now, in board cases, there are not that many 

preliminary rulings but there are all sorts of 

interesting issues that arise, particularly 

jurisdictional. The problem is how to get it 

into an interlocutory appeal because there's 

no advanced ruling by the judge. So, I 

suggest you change the rule to allow 

certification in interlocutory appeals either 

on a ruling or on an issue that's identified 

by the parties and accepted by the judge for 

that purpose.

Criteria for Granting Petitions for 

Review 1201.115. The regulation talks about 

new evidence or errors in law and everybody 

knows that one of the fundamental reasons 

people file petitions for review is because 

they think the judge inappropriately decided 

factual issues or credibility issues. The 

Board obviously reviews cases on that basis. 
I suggest you change the regulation to clearly 

state that as a basis for a petition for 

review.

Consequential Damages or 

Compensatory Damages 1201.204. The regulation 

has instruction that now requires bifurcation 

of the case. You have to win the case, 

survive a petition for review, come back, go 

through an adundant proceeding. The Board's 

adjudication is slowed down in the past couple 

of years because of non-precedential final 

orders. The average age of the Board case PFR 

level is increasing not decreasing. And I 

suggest to avoid unwarranted delays when there 

is actually a finding of discrimination or 

reprisal that just like with the EEOC you 

allow the judge the opportunity to make the 

determination whether or not to bifurcate the 

case rather than requiring it as a matter of 

regulation.

Specifically, Mr. Spencer asked that 

the parties here today, people here today, 

speak about the Burdens of Proof under 

1201.56. The statute sets the burden of proof 
for various cases of the Board depending on 

the type of the case. I think an effort by 

the Board to classify burdens of proof and a 

regulation given the many different types of 

cases the Board hears and the many varying and 

sometimes conflicting pronouncement. May I 

finish this sentence, sir?

MR. SPENCER: Go ahead. Yes.

MR. BROIDA: Even the federal 

circuit would allow me to finish the sentence. 

All right. Given the various occasionally 

conflicting and sometimes confounding 

statements with respect to jurisdiction and 

burdens of proof in the federal circuit and 

the Board, I don't think it's going to do much 

good to try to codify that in terms of a 

regulation. Instead, you have to insist that 

the administrative judges do what they know 

how to do which is to research the law and 

identify those for the parties either as part 

of the acknowledgement order or as part of the 

pre-hearing conference summary. Mr. Spencer, 

I thank you for the extension of time. I have 

no further comments. Thank you.
MR. SPENCER: Thank you.

MR. GUTIERREZ: Good morning. I'm 

Eric Gutierrez. I'm the legislative and 

public policy directory for The National 

Employment Lawyers Association. I have the 

most amazing privilege in terms of my job to 

call upon the brain trust of NELA which is 

exactly what I did in this situation. Peter, 

I don't want to follow you. I feel sort of 

embarrassed but I will tell you that NELA has 

formally submitted comments. That process was 

basically calling on the brain trust of NELA 

including our executive director, Terri Chaw, 

that said to say hello, Jim, to you. And I 

will say this, that Passman & Kaplan actually 

is part of our brain trust. I will not 

totally defer to Andrew but I know that he 

worked very much, very hard with Terri on 

these, on these comments. And I wish I could 

add more but at this point, I just submit our 

comments from NELA and if there are any 

questions after the fact I'm happy to respond. 

I will have extra time for anyone else. Thank 

you.
MR. EISENMANN: John.

MR. MAHONEY: Hi, I'm John Mahoney 

partner with Tully Rinckey. We represent 

appellants especially members of the -- former 

members of the Uniform Services and VEOA and 

USERRA cases as well as civilian and federal 

employees and adverse action appeals before 

the Board. And we certainly appreciate the 

Board reaching out to the parties who are 

often appearing before them to provide comment 

on these proposed rule changes. And we have 

submitted on behalf of the firm written 

comments and responses to the proposed 

regulatory changes on November 30th. I'd like 

to highlight a few of them here today and to 

add additional comments that I think the Board 

should take into consideration.

With regard to the proposed changes 

at 5 CFR Section 1200.4 the petition for 

rulemaking, we wholeheartedly agree with the 

Board's proposed changes, so as to make public 

participation in rulemaking by the Board 

easier for the public to engage in. We also 

agree with the proposed changes at 5 CFR 
1201.3, in terms of providing guidance to pro 

se appellants in terms of explaining the 

limited nature of the Board's jurisdiction. 

As far as 5 CFR Section 1201.3(a)13, we 

believe that the proposed change does properly 

clarify the basis for re-employment priority 

rights under 5 CFR Section 302.501 and 

330.209.

We believe that the Board should 

clarify further it's regulation at 5 CFR 

Section 1201.4 to give parties the right to 

serve documents solely by email. I think 

you're seeing a movement in the district 

courts as well as the court of appeals in 

terms of allowing email service solely in 

cases and we think that the Board should 

codify that in its regulation at 1201.4. And 

that the date of service for email should be 

the date on which the email is sent even if it 

is after the normal business hours rather than 

carrying it over to the future date.

With regards to the proposed change 

at 5 CFR Section 1201.4(j), we respectfully 

request that the Board instead adopt an 
overall rule that actions must be taken based 

upon the date the prior document is received 

rather than the date on which the document is 

served. There is confusion between the 

federal rules of civil procedure and the 

regulations that have been promulgated by the 

EEOC between the difference of service and the 

difference of receipt. We think that all time 

limits in Board litigation should go from the 

date of receipt of the document rather than 

the date of service of the document. Which 

would make the Board's regulation at 1201.4(j) 

consistent with the EEOC's regulation, 

longstanding regulation at 29 CFR Section 

1614.604, which states that all time periods 

before the EEOC litigation are run from the 

date on which the document is served and the 

document is presumed to have been -- I'm 

sorry, from the date the document is received 

and it is presumed that the document is 

received within five calendar days from when 

served. We think the Board's regulation 

should mirror that provision in the EEOC's 

regulation.
We fully concur with the Board's 

rationale for its proposed revision of 5 CFR 

Section 1201.21, to require agencies to 

explain in their decision letters in adverse 

action cases, the impact of the employee's 

decision to file an OSC complaint, 

whistleblower or retaliation complaint over an 

otherwise appealable adverse action. However, 

we also recommend that the Board's regulation 

require agencies to also provide employees 

notice of their rights to file mixed cased EEO 

complaints by contacting an EEO counselor at 

the agency within 45 calendar days if they 

believe that the adverse action is 

discriminatory under -- by the United States 

Code Section 200e-16.

Some agencies provide EEO notice of 

mixed appeal rights, some agencies don't in 

their decision letters. We think by codifying 

a requirement that an agency explained the 

impact of a mixed case complaint versus a 

mixed case appeal that it would provide 

federal employees and former federal employees 

greater adverse action notice and due process 
rights.

We totally agree with the Board's 

possible revised regulation at 5 CFR Section 

1201.24 to reduce the need to provide any 

documents with the initial MSPB appeal other 

than the decision and the notice of action 

being appealed. Oftentimes, as the Board 

references in its proposed regulations, 

employees who are pro se don't know what they 

have to provide and often bury the Board in 

terms of paper. And I think it is very 

helpful especially for pro se appellants to 

know that they only have to provide the 

proposed adverse action and the decision 

letter.

With regard to the Board's proposed 

revision of 5 CFR Section 1201.28(a), we 

applaud the Board's proposal to allow 60-day 

stays but we take issue with the Board's 

effort to eliminate the current proposed 

requirement that requests for stays must be 

filed within 45 days of the issuance of the 

acknowledgement order. And stays sought at a 

later stage of the appeal may be helpful in 
terms of promoting alternative dispute 

resolution and reducing the costs of overall 

Board litigation for the parties involved. We 

think that basically having requirements in 

terms of what the time limit is for requesting 

ADR throughout the process really puts a 

damper on the party's ability to negotiate 

settlement under the certain time table that 

Board acknowledgement orders often set forth 

for parties. We don't think there should be 

an artificial time limit for when a party or 

when parties can seek a stay. And we also 

don't believe that there should be an 

artificial time limit on how long a stay 

should last. If the parties need more than 60 

days we don't see why the Board should limit 

the parties to a finite period of 60 days for 

settlement negotiations.

Likewise, we applaud the Board's 

possible revised regulation at 5 CFR Section 

1201.29 to codify the longstanding practice of 

allowing dismissals without prejudice. And we 

echo Mr. Broida's comments in terms of 

requiring Board judges to automatically 
re-file appeals after the dismissals without 

prejudice. Sometimes, pro se appellants 

forget, frankly, how long a case has been 

dismissed without prejudice and we think an 

automatic filing -- re-filing provision would 

be helpful in terms of protecting the 

statutory rights of pro se employees.

With regard to the Board's possible 

revised regulation at 5 CFR Section 1201.33, 

the Board's current and proposed regulation 

should explicitly reference sitting for 

depositions in addition to simply furnishing 

sworn statements as a requirement for federal 

employees and as well as for contractors. 

Federal contractors receive federal benefits 

through statute. And oftentimes, we find 

representing appellants, that federal employee 

cases that are based upon federal contractor 

testimony, agencies can escape having to 

produce those employees because they're simply 

contractors. And we think that because 

federal contractor employees receive federal 

benefits that they should likewise be required 

as a part of their right to be required to sit 
for that position as well. Of course, the 

appellants would have to pay their witness 

fees as we always do but certainly that is a 

problem that we've experienced. You know, 

witness statements by federal contractors and 

retirees escaping discovery examination.

Now, with regard to the Board's 

proposed revised regulation at 5 CFR Section 

1201.73, we agree with the Board's revision to 

eliminate the current initial disclosures 

requirement. Although representing appellants 

I would think it might be helpful to keep that 

provision with regard to requiring agencies to 

provide initial disclosures. Let's face the 

reality: Agencies possess most of the 

information in these cases and therefore it's 

easier for them to produce initial disclosures 

which would cut down on the costs of discovery 

for appellants than it is for appellants, 

especially pro se appellants, to produce 

evidence. So, we would, you know, 

require -- we would request that initial 

disclosures stay with regard to the agencies 

providing them but that appellants be released 
from that requirement.

In terms of the discovery response 

period, we think that discovery responses like 

in EEOC cases should be 30 days. A party 

should have 30 calendar days to respond to 

discovery requests as opposed to 20 days. 

That is the current federal rule of civil 

procedure rule. It's also the rule before the 

EEOC and we think that it's fair that parties 

before MSPB should also be provided 30 days to 

respond to written discovery requests.

The additional comments 

that -- given the fact that I have 22 

seconds -- are in our written responses to the 

proposed rulemaking. I would recommend, 

however, that we deal with something to do 

with penalties. Before the Board, penalties 

traditionally have always been the maximum 

recommended penalty, the maximum reasonable 

penalty that treats non-bargaining union 

employees differently because before 

arbitration it's usually a minimum reasonable 

penalty. And we think that non-union 

employees should not be treated differently in 
terms of penalty assessment. So, we think 

that the Board should regulate that as well. 

Thank you very much.

MR. EISENMANN: Thanks, John. 

Andrew?

MR. PERLMUTTER: Good morning. I'd 

like to thank the Board of -- well, both 

Passman & Kaplan and the members MWELA. I 

would like to thank the Board for giving us 

the opportunity to provide further comments 

concerning the Board's proposed changes to 

regulations. Now, both, Passman & Kaplan and 

MWELA have previously provided -- or the 

detailed written comments submitted 

coincidentally both by Joseph Kaplan. And so, 

I'm not going to be rehashing the contents of 

those particular written comments. Although I 

will be addressing a few of the more 

high-level issues pertaining to some of the 

underlying circumstances that cross several 

different modifications and regulations. 

First though, I wanted to make sure to address 

the requested comments on the proposed changes 

to 5 CFR Section 1201.56 as referenced in the 
February 6, 2012 letter.

In response, concerning codification 

of the burdens of proof which have not been 

previously put in the Board's regulations such 

as non-frivolous allegations. Passman & 

Kaplan supports this effort to develop and 

provide better guidance to administrative 

judges and to especially pro se appellants, 

provided that the regulations are a 

codification of the prior precedent and not a 

replacement. We're concerned that -- and we 

want to make sure that if this is an issue 

that the Board decides to visit in its 

proposed rulemaking that the record of 

rulemaking here makes clear that this is an 

attempt simply to codify pre-existing 

precedent. And not to un-seed it or modify it 

to avoid the possible risk that a later 

misinterpretation of the updated phrasing that 

would appear in any proposed revised of 

Section 1201.56 would be intended to replace 

what had been in prior precedent. On this 

particular regulation, MWELA doesn't have any 

specific comment one way or the other.
Now, looking at some of the higher 

level issues. As we're touching on a greater 

detail -- I mean, sort of underlying a number 

of the concerns that we raised in our 

comments, are issues pertaining to certain 

stages in the overall procedural processing of 

complaints. First of all, there's the issue 

of the -- many which deal with problems 

associated with how certain administrative 

judges in our experience have been applying 

the regulations perhaps with prejudicial 

effects. I guess, with the overall goal, 

perhaps, of trying to expedite the processing 

of the complaint perhaps by shortchanging the 

appellant's opportunity for discovery either 

from the procedure the agency filed or 

promulgating written discovery or the like. 

At the very front end of the case, one of the 

difficulties here is in terms of propounding 

initial written discovery -- the delay is 

often in receiving the agency file is 

often -- I mean even under the present 

regulation there is a mere five days 

to -- then draft for discovery since 
agencies -- and we've observed often are late 

in filing these agency -- the file submissions 

often leaving the appellants shorthanded to 

try to draft their written discovery requests. 

We support the effort to try to address this 

by adjusting deadlines.

And, in addition, as we proposed in 

our comments we believe that reducing the time 

for agencies to submit the agency file may 

actually help promote this and that wouldn't 

be sufficiently burdensome to the agencies. 

And that agencies often are compiling most of 

the records as part of their proceedings and 

adverse actions matters for instance and just 

as part of their normal proceedings of the 

adverse action.

One problem that we have observed 

also comes up at the very front of the case is 

the issue of orders to show cause especially 

in jurisdictional matters. In particular, in 

the context of whistleblower reprisal cases 

and cases of where there might be constructive 

adverse actions. A lot of administrative 

judges appear to use each of the show cause 
orders as a routine matter, perhaps as a 

docket clearing device to keep their 

production numbers up but that will be 

speculative, I suppose. And so, our concern 

is that those deadlines are often overlapping 

with the deadlines for the parties to be 

propounding the written discoveries. And so, 

we propose that stays or some other mechanisms 

be put into the regulations to allow the 

different jurisdictional issues that are 

raised that the parties should not be required 

to be trying to propound written discovery 

requests at the same time they're trying to 

conduct the detailed jurisdictional briefing 

required to defend the Board's jurisdiction 

over a case.

Similarly, and sometimes this 

appears at the very front of the case but in 

other stages late in the processing as well. 

The administrative judges we've noticed 

especially of more recent vintage have shown 

cause or other procedural devices to require 

appellants to make extensive proffers and 

proofs of affirmative defenses in order to 
have those defenses actually be able to be 

heard at hearing. As -- and this is something 

that we consider to be of great concern, 

especially burdening pro se appellants. It 

might not necessarily be in a position to be 

able to make the kind of detailed 

argumentation on discrimination, firm defenses 

or other matters that would be necessary in 

order to make sure that the cases get to 

hearing. We believe that it's part of the 

Board's general position and that is appearing 

in statute case law and their authority that 

cases should be heard -- go to hearing. That 

there shouldn't be any special burden placed 

on particular defenses or to make sure that 

actually have a chance to be heard and 

adjudicated.

The issue of case suspension. 

Several points come to mind. Echoing the 

comments of Mr. Broida both Passman & Kaplan 

and MWELA, our concern about issuances in 

situations where administrative judges in our 

experience have denied even joint requests for 

case suspension. And we believe that given 
the number of problems that have occurred in 

this that the only solution is to make -- that 

if the initial request for case suspension is 

joined, it be made non-discretionary and 

mandatory on the administrative judges.

We believe that the 45-day deadline 

for when cases suspensions can be granted 

absent of special circumstances is probably 

not appropriate and we think it should be 

extended to at least 60 days. We believe that 

historically, the issue of case suspension 

absent of a few of these abuses are probably 

still better left with the -- some discretion 

of the trial administrative judges and 

should -- and that the regional director or 

the chief administrative judge who does not 

have oversight over the particular case should 

not be involved with the decision making on 

case suspension.

We believe it generally because of 

the difficulties with administrative judges 

administrating these case suspensions that 

standards need to be promulgated to better 

guide administrative judges on their exercise 
of discretion for those non-mandatory grants 

of case suspension. And we also proved 

generally expanding the possible reasons for 

case suspension beyond just the limited ones 

that appear in the present regulation. 

Because discovery historically had been one of 

the reasons for case suspension we wanted to 

pose the issue that when we possess 

difficulties in case suspension was the issue 

of motions to compel, discovery -- if 

discoveries were to occur during the case 

suspension period. And that we believe that 

ejecting the case from case suspension is not 

the best solution to the matter. And so, we 

would propose that motions to compel discovery 

or maybe -- well, they should be able to be 

adjudicated in some fashion by an 

administrative judge without losing the 

benefits of the case suspension both in terms 

of a long time for the parties to develop the 

record and also to not be burdening the 

administrative judges given their production 

requirements.

Both Passman & Kaplan and MWELA, 
support the highly successful mediation appeal 

program, MAP program and believe it should be 

codified in the regulations. And that case 

suspension would be a place to do so with an 

extra section providing that if a case is 

referred to mediation appeals, program 

mediation, that a indefinite case suspension 

would be placed unless the case were to settle 

or the case would otherwise be referred back 

to the administrative judge by the mediation 

appeals program staff.

Like most of the other commenter's, 

both Passman & Kaplan and MWELA, support 

codifying the dismissal without prejudice 

precedent into the Board's regulations. Now, 

the second juncture where issues in terms of 

the discovery come into play at the very end 

of the discovery period in conjunction with 

the pre-hearing process. It's been our 

observation that many administrative judges

have abused their prerogatives in terms of 

schedule -- upsetting scheduling and briefing 

schedules for pre-hearing and pre-hearing 

submissions. Sometimes, so that the deadlines 
for the parties to submit pre-hearing 

submissions occur even before the deadline for 

the parties to submit written discovery 

responses.

This is highly prejudicial 

especially to appellants who, given the 

information to symmetries in the adverse 

action litigation process with the agencies 

possessing most of the information they're in

a better position to attempt to put together a 

pre-hearing statement without having discovery 

responses in hand from the opposite party. 

Because of these particular abuses we believe 

that the only solution would be to restrict 

the administrative judges from setting the 

pre- hearing before the ordinary completion of 

discovery. In particular, with setting 

specific numeric limits for how early the 

pre-hearing submissions deadline and the 

pre-hearing conference can be scheduled to 

allow the full time to complete discovery.

Put simply, both Passman & Kaplan 

and MWELA, believe that the parties should 

have the sufficient time to complete discovery 
before pre-hearing and that discovery should 

take precedence over any specific pre-hearing 

deadline.

We also are known to the present 

regulations, the administrative judges have 

the ability to set deadlines for pre-hearing 

hearing and there are certain very onerous 

regulations in terms of the pleading 

requirements for the parties to seek 

adjustment of those deadlines once set. We 

believe that the superior practice in this 

would be to codify that to the extent 

practicable, that the administrative judge 

confer with the parties first about possible 

scheduling dates for pre-hearing and hearing 

before those dates are specified. So, that to 

try to minimize the burden on either party in 

terms of the scheduling being set.

Now, at the hearing process itself 

both MWELA and Passman & Kaplan oppose closing 

hearings except to the extent of that a 

hearing might have some -- might actually 

contain literally classified information or 

something equivalent. We believe that it is 
as important public policy function for these 

hearings to be kept open. And so, we would 

object to any -- to regulatory changes that 

would make a closure of these hearings more 

feasible.

In addition, we support, as noted 

before, provisions for allowing free 

e-transcripts if available to the parties 

after the hearing for solely review and a 

possible appeal if need be.

Looking at the appellate stage both 

Passman & Kaplan and MWELA oppose the changes 

to 1201.114 in terms of setting page limits 

for appeals. We believe that would be unduly 

burdening. Appellants especially in cases 

where there might be multiple claims, 

extensive affirmed defenses, or consolidated 

claims or the like.

And changing gears for a second to 

look at the regulations for the 1209.2 dealing 

with whistleblowing issues. We oppose for 

several aspects some of the proposed changes 

to this particular regulation, for several 

different reasons. For instance, the very 
important issue of not shortcutting the 

ability of the individuals to seek relief from 

the Office of Special Counsel in form of their 

support for a stay and proposed adverse 

actions something which the new -- which the 

current Special Counsel has been a lot more 

active as the case law -- as reported 

decisions have indicated. We are concerned 

about the jurisdictional effects of this 

especially because under the Whistleblower 

Protection Act there is -- it borders 

jurisdiction not to just adjudicate actual 

implemental adverse action but also to deal 

with threats. And so, this would create some 

jurisdictional problems.

And finally, because again a lot of 

the appellants appearing before the Board are 

pro se, we would just generally object to any 

factor that would increase the difficulty on 

especially a pro se appellant being able to 

examine their strategic options and being able 

to possibly enforce their rights.

Both Passman & Kaplan and MWELA 

would like to -- would welcome any additional 
questions or any requests for -- further 

requests for comment on proposed regulations. 

We'd be happy to provide our input and 

hopefully expertise. And we wish to thank the 

Board for the opportunity to provide comments 

on these proposed regulations.

MR. EISENMANN: Thank you, Andrew. 

Russell.

MR. CHRISTENSEN: My name is Russell 

Christensen. I'm here representing the Office 

of Chief Counsel for the Federal Aviation 

Administration. And like Mr. Perlmutter said 

and I think everybody else, we do appreciate 

this opportunity to participate. We commend 

the Board for undertaking this effort. As an 

agency that deals with a lot of rulemaking we 

understand how cumbersome it can be and even 

tedious and we encourage you in your efforts 

to assist in this. We submitted written 

responses back in November. We didn't have 

many comments on the proposed rule changes as 

we went over them. I would just touch on a 

few of them today and then to comment on some 

of what we have heard this far from my 
colleagues, I guess, on the other side of the 

bar in these cases.

Somebody had mentioned serving 

documents, service of process. One of our 

comments was to take note that currently the 

mail and executive agencies here in 

Washington, D.C. is still being radiated, at 

least mail that's served in the U.S. Mail. 

So, the five day presumption often does not 

work for executive agencies here in the 

Washington, D.C. area. It's not uncommon to 

receive documents via U.S. mail seven, eight, 

nine days if there's a weekend or holiday in 

there because the mail is first irradiated. 

So, we believe there should be a provision as 

long -- and that's not a decision that I think 

any one agency makes as to how long the mail 

will continue to be irradiated. So as long as 

it is, there is there should be a provision in 

the rules more akin to what I believe a 

colleague from Tully Rinckey said actual 

receipt of the document, kind of like what the 

EEOC does.

And so, there should a presumption, 
we believe, or something in the rules to allow 

for time limits to begin when a party receives 

the document and we believe the five days does 

not work particularly -- well, at least in the 

Washington, D.C. area. And we would suggest 

that you reconsider those or including 

something in the provision to allow for more 

than five days to when you have those 

extraordinary circumstances that are beyond 

the control of the agencies.

Next, we at the agency, the FAA, had 

submitted a response regarding producing 

tabbed appeal files or the agency files, what 

we call tabbed appeal files. It is often the 

case that the timeline for producing them is 

not tolled in cases where's there's an issue 

of jurisdiction or timeliness. So, when 

there's a chance that the case is not going to 

go forward anyway the agency still has the 

burden or the obligation to produce an appeal 

file. We believe and we would recommend that 

the rules toll the timing for preparing an 

agency tabbed appeal file where there has been 

an issue identified related to timeliness or 
jurisdiction. Because if the case is not 

going to go forward then there's no reason to 

produce and deal with an agency tabbed appeal 

file.

We do agree with the rule that no 

longer requires the initial disclosures which 

track the federal rules. We completely agree 

with the informal working group's suggestion 

in their draft; comments that the agency 

tabbed appeal file largely serves that same 

purpose as is found in the federal rules with 

the initial disclosures. So, we don't have 

any problem with that.

Getting back to the tabbed appeal 

file and also picking up on some of the other 

comments I don't know -- well, the agency 

would not go so far as to say the judges are 

abusing the deadlines but we have been 

affected similarly by overlapping deadlines. 

Mr. Perlmutter identified what is kind of 

common where we have a deadline for 

participating or producing a pre-hearing 

report and participating in a pre- hearing 

conference when discovery hasn't closed yet. 
We believe the regulation should set forth a 

way that those deadlines don't overlap. That 

one process can finish before we move into the 

next one. We believe that makes it easier. 

It'll make it easier for the parties. The 

process will, I think, move more efficiently. 

It'll save the parties the burden of having to 

notify the judge that we have these 

overlapping deadlines and we need to get those 

squared away. So, we could finish one part of 

the case before we move into the other. Even 

if those timelines are short but the 

overlapping deadlines has been a recurring 

issue. And again, the agency is not saying 

that there's some abuse of process here but 

just that we understand the commission or the 

Board's commitment to processing these cases 

quickly and we support that and we want to 

work with them.

And we don't think that there is any 

prejudice to either party if the deadline for 

producing an agency appeal file is tolled 

pending a decision on jurisdiction or 

timeliness issues or waiting to do a 
pre-hearing conference or submit pre-hearing 

submissions until the close of discovery. On 

the latter point, we think both parties are 

benefitted by that practice. So, one of the 

other comments that the agency would submit 

and recommend that the informal working group 

consider are limits on the numbers on the 

discovery requests. Currently, the Board has 

a limit of 25 interrogatories and 10 

depositions. We believe if you do a survey of 

the various local rules in the federal 

district courts throughout the country, it's 

not uncommon to see there also be limits on 

requests for production and even requests to 

admit in some jurisdictions. We believe the 

Board should look at that and carefully 

consider whether those are necessary. The 

agency contends that they are. We've seen it 

in our practice, extraordinary numbers of 

requests to produce documents and even an 

extraordinarily high number of requests for 

admissions in cases. One we had over 900 

requests to admit in a single case.

We believe that it would be well 
advised for the informal working group to 

consider additional limitations on discovery 

requests that would fall on both parties with, 

of course, keeping in the option now with 

under special circumstances a judge could 

allow deviations from the limits. That's in 

the rules now. We believe it should be 

extended to request for production of 

documents or requests for admissions.

The FAA concurs with the 

Board's -- or excuse me -- the informal 

working group's suggestion that there be a 

25- page limit on PFR's, petitions for review. 

I'm sorry. We believe that would help 

practice. It would help to focus arguments. 

And narrow the appeals that we review and we 

receive and we have to respond to. 

Twenty-five pages are not uncommon in many 

courts of appeals on state and federal level. 

So, a page limit, we believe is a good 

addition to the practice and should be 

strongly considered.

I just want to quickly look over the 

notes. The FAA also agrees with the comments 
that have been made here regarding the 

granting of the joint request to suspend the 

case. If the parties are in agreement that 

they need more time to work out a case or to 

consider other issues we believe that the 

regulations should incorporate or require a 

judge to grant a joint request for a 

suspension of processing of a case in order 

for the parties to continue.

And then, finally, going a little 

bit out of order with the regulations. One of 

the proposed regulations, changes to the 

regulations was to require an agency to prove 

that an appellant is intentionally avoiding 

service of process of document. And we 

believe that raises the bar too high 

unnecessarily. Appellants or employees are 

supposed to keep the agency abreast of their 

current mailing address and we believe a 

better regulation or a scheme to follow would 

be to track what the National Transportation 

Safety Board does with their judicatory 

practice. And under the NTSB's rules of 

practice, airmen, certificate holders, are 
required to keep the FAA up to date with their 

current address and the agency may send a 

document including an order of suspension or 

revocation to the person's address of record. 

And if it's not returned to the agency as 

undeliverable, change of address, or some 

other reasons there's a presumption there that 

service was effective. We believe that for 

the MSPB and the regulations that apply to 

service of process of documents that it should 

track the NTSB rules that the agency can serve 

a document, send a document to the address of 

record for the person. And as long as it's 

not returned then service will be assumed to 

have been effective.

Again, the FAA appreciates the 

opportunity to have participated here this 

morning. We look forward to future 

invitations if they are extended and we 

commend the group for doing this. Thank you 

for your time.

MR. EISENMANN: Thanks, Russell.

MS. KESSMEIER: Good morning. On 

behalf of the General Counsel for the 
Department of the Navy, thank you for the 

opportunity to comment. The Department of the 

Navy is somewhat unique in terms of federal 

agency representatives. We're not -- our 

representative pool in front of the Merit 

Systems Protection Board comprises not only of 

attorneys but human resource specialists. So, 

a lot of the comments that you will see that 

came from the Department of the Navy are 

really geared towards clarification of the 

regulations so, that a non-attorney 

practitioner can understand what the Board is 

requiring of the parties in the process. I 

don't intend to belabor the comments that 

we've already submitted in writing. Many of 

our comments overlap the comments that you've 

heard earlier this morning.

One area that I have not heard a 

comment on that I would like to reiterate the 

Navy's position has to do with the production 

of federal agency witnesses. We received a 

lot of feedback from our practitioners with 

regard to concerns of having to obtain 

participation of non-Navy agency 
representatives in the process. Currently, 

the Board's regulations allow for the issuance 

of a subpoena for the participation of a 

witness if necessary. And we believe that 

that should remain in place.

There appears to be a presumption 

that if you work for one federal agency you 

necessarily would be easily able to obtain the 

participation of another federal employee in 

the process and the Navy disagrees with that 

perception. And it's just not that difficult 

or it's not that easy for one federal agency 

to understand the inner-workings of another 

federal agency especially if you're looking, 

for example, the Department of Navy is part of 

the Department of Defense. It's a very, very 

large federal agency compared to a much 

smaller agency comprised of 200 people. If 

you're asking a very small agency to obtain a 

Department of Defense representative, that's 

going to be very difficult for them to 

ascertain where to go in and ask for that 

witness to participate, especially where it is 

not the agency that is asking to produce that 
witness. So, we would ask that you consider 

that as you're looking at your regulations.

Again, we appreciate the Board's 

process as a very efficient process and we 

appreciate that the regulations provide for an 

efficient process. We would suggest that 

while you may want to consider extending time 

frames that those time frames be extended on a 

reasonable basis. There's been some 

discussion today of where we are in the EEOC 

process. Our take on the EEOC process is it 

is not an efficient process neither for the 

agency or the complainant in that it takes a 

very long time for a decision to be rendered. 

And we would suggest that the Board keep an 

eye towards maintaining the efficient process 

that you have as you promulgate regulations.

Again, the Department of Navy is 

available to answer any questions or provide 

further comment on the feedback that we've 

provided. And we thank you for the 

opportunity.

MR. EISENMANN: Okay. Thank you. 

On behalf of the Chairman and the MSPB staff, 
I want to thank you for taking time out of 

your schedules today to provide us your 

insights on our adjudicatory regulations. And 

that's it. Thank you. We're off the record.

(Whereupon, at 10:56 a.m., the 

PROCEEDINGS were adjourned.)

* * * * *
CERTIFICATE OF NOTARY PUBLIC 

DISTRICT OF COLUMBIA 

I, Stephen K. Garland, notary public in 

and for the District of Columbia, do hereby 

certify that the forgoing PROCEEDING was duly 

recorded and thereafter reduced to print under 

my direction; that the witnesses were sworn to 

tell the truth under penalty of perjury; that 

said transcript is a true record of the 

testimony given by witnesses; that I am neither 

counsel for, related to, nor employed by any of 

the parties to the action in which this 

proceeding was called; and, furthermore, that I 

am not a relative or employee of any attorney 

or counsel employed by the parties hereto, nor 

financially or otherwise interested in the 

outcome of this action.

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