This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

33663 

Vol. 77, No. 110 

Thursday, June 7, 2012 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1200, 1201, 1203, 1208, 

and 1209 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Proposed rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board), following 

an internal review of MSPB regulations 

and after consideration of comments 

received from MSPB stakeholders, is 

proposing to amend its rules of practice 

and procedure in order to improve and 

update the MSPB’s adjudicatory 

processes. 

DATES: Submit written comments on or 

before July 23, 2012. 

ADDRESSES: Submit your comments 

concerning this proposed rule by one of 

the following methods and in 

accordance with the relevant 

instructions: 

Email: mspb@mspb.gov. Comments 

submitted by email can be contained in 

the body of the email or as an 

attachment in any common electronic 

format, including word processing 

applications, HTML and PDF. If 

possible, commenters are asked to use a 

text format and not an image format for 

attachments. An email should contain a 

subject line indicating that the 

submission contains comments to the 

MSPB’s proposed rule. The MSPB asks 

that parties use email to submit 

comments if possible. Submission of 

comments by email will assist MSPB to 

process comments and speed 

publication of a final rule; 

Fax: (202) 653–7130. Faxes should be 

addressed to William D. Spencer and 

contain a subject line indicating that the 

submission contains comments 

concerning the MSPB’s proposed rule; 

Mail or other commercial delivery: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

Hand delivery or courier: Should be 

addressed to William D. Spencer, Clerk 

of the Board, Merit Systems Protection 

Board, 1615 M Street NW., Washington, 

DC 20419, and delivered to the 5th floor 

reception window at this street address. 

Such deliveries are only accepted 

Monday through Friday, 9 a.m. to 

4:30 p.m., excluding Federal holidays. 

Instructions: As noted above, MSPB 

requests that commenters use email to 

submit comments, if possible. All 

comments received will be included in 

the public docket without change and 

will be made available online at 

www.mspb.gov/regulatoryreview/ 

index.htm, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

or other information whose disclosure is 

restricted by law. Those desiring to 

submit anonymous comments must 

submit comments in a manner that does 

not reveal the commenters identity, 

include a statement that the comment is 

being submitted anonymously, and 

include no personally-identifiable 

information. The email address of a 

commenter who chooses to submit 

comments using email will not be 

disclosed unless it appears in comments 

attached to an email or in the body a 

comment. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

(202) 653–7200, fax: (202) 653–7130 or 

email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is the product of a 

comprehensive internal review of 

MSPB’s adjudicatory regulations, the 

first such review since the 

establishment of MSPB in 1979. This 

review began in January 2011 when the 

Board solicited suggestions for revisions 

to MSPB’s adjudicatory regulations from 

MSPB staff. Subsequently, an internal 

working group was created to review the 

proposals submitted by MSPB staff, 

identify meritorious proposals, and 

develop draft amendments to MSPB’s 

regulations. During the working group’s 

deliberations, MSPB also received two 

requests for rulemaking from interested 

parties, and those requests were 

considered during the internal review 

process. 

The recommendations prepared by 

the internal working group were 

preliminarily evaluated by the Board 

Members. The internal working group 

then sought input from over 30 

stakeholder agencies, organizations, and 

individuals in accordance with the 

public participation requirement in 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review.’’ 

The stakeholders were invited to 

provide comments concerning the 

preliminary recommendations of the 

working group. The stakeholders were 

also asked to propose needed changes to 

any of MSPB’s adjudicatory regulations 

not identified by the internal review. 

Comments were received from 15 

stakeholders, and those entities were 

offered an opportunity to present any 

additional comments at a meeting with 

representatives of MSPB’s internal 

working group. That meeting was held 

on March 6, 2012, at MSPB’s 

headquarters, and the 6 stakeholders 

who responded to the invitation were 

each allocated 10 minutes to speak. 

Although members of MSPB’s internal 

working group attended the meeting to 

hear the presentations by the 

stakeholders, the Board Members did 

not attend. Following the stakeholder 

presentations, MSPB’s internal working 

group reconvened to draft a proposed 

rule for consideration by the Board 

Members. 

The proposed rule published today is 

therefore the result of the most 

comprehensive review of MSPB’s 

adjudicatory procedures ever 

undertaken. In order to ensure 

transparency and to assist the parties 

who wish to comment, MSPB’s 

communications with stakeholders, 

responses received from the 

stakeholders, and a transcript of the 

stakeholders’ March 6, 2012 oral 

presentations are available for review by 

the public at www.mspb.gov/ 

regulatoryreview/index.htm. 

Scope of Comments Requested 

The MSPB asks commenters to 

provide their views on the regulations 

proposed by MSPB. The MSPB also 

invites additional comments on any 

other aspect of MSPB’s adjudicatory 

regulations that commenters believe 

should be amended. 

Summary of Changes 

Set forth below is a summary of the 

amendments proposed by the MSPB. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33664 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

Section 1200.4 Petition for 

Rulemaking 

This proposed amendment 

authorizing petitions requesting the 

MSPB to amend its regulations is 5 

U.S.C. 7121specifically authorized by 5 

U.S.C. 553(e), which states that ‘‘[e]ach 

agency shall give an interested person 

the right to petition for the issuance, 

amendment, or repeal of a rule.’’ At 

present, the MSPB has no procedures in 

place for responding to these requests. 

This proposed amendment will ensure 

that parties wishing to petition the 

Board for regulatory changes are aware 

of their right to make such a request and 

the MSPB’s procedures for filing and 

responding to such requests. 

Section 1201.3 Appellate Jurisdiction 

The MSPB proposes to amend the 

opening paragraph to explain that this 

regulation is not a source of MSPB 

jurisdiction and that the cited laws and 

regulations need to be consulted to 

determine the MSPB’s jurisdiction. The 

proposed amendment emphasizes that 

jurisdiction depends on the nature of 

the employment or position held as well 

as the nature of the action taken. The 

proposed regulation also revises the 

listing of appealable actions within the 

MSPB’s appellate jurisdiction to achieve 

several ends: (1) To make the 

regulations easier to understand (plain 

English where possible); (2) to give each 

category of appealable action a 

descriptive label; (3) to list appealable 

actions in order from most common to 

least common; and (4) to group like 

actions together, which resulted in a list 

of 11 appealable actions instead of the 

previous 20. 

Section 1201.4 General Definitions 

The MSPB proposes revising 

subsection (a) to eliminate the phrase 

‘‘attorney-examiner,’’ which was 

believed to be an archaic term, and 

substitute the language of 5 U.S.C. 

7701(b)(1). 

The MSPB is proposing to revise 

subsection (j) out of a concern that the 

definition of ‘‘date of service’’ is both 

circular (‘‘the date on which documents 

are served’’) and unclear, since 

‘‘service’’ is defined as the ‘‘process of 

furnishing a copy of any pleading’’ to 

the MSPB and other parties. It is thus 

not clear if the date of service refers to 

when a pleading is sent out, e.g., the 

postmark date, or when the pleading is 

received. Parties have interpreted ‘‘date 

of service’’ both ways. The revised 

regulation resolves this ambiguity by 

providing that ‘‘date of service’’ refers to 

when a document is sent out, not when 

it is received. 

The MSPB further determined that it 

was inequitable to allow the amount of 

time that a party has to file a pleading 

depend on the method of service used 

by the opposing party. To redress such 

inequity the proposed regulation also 

states that ‘‘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.’’ This 

incorporates the presumption of 5 CFR 

1201.4(k) that mailed documents are 

received 5 days after the postmark date. 

Section 1201.14 Electronic Filing 

Procedures 

The MSPB proposes adding new 

subsections (4) and (5) to section (c) to 

reflect current policy and procedure 

regarding Sensitive Security Information 

(SSI) and classified information. The 

MSPB has determined that it is 

inappropriate to use the e-Appeal 

Online system for SSI or classified 

information. The proposed revision to 

section (m) makes the regulation 

consistent with the intent expressed by 

the Board when it originally published 

this provision at 73 FR 10127, 10128 

(2008). Finally, an additional subsection 

is being proposed to 5 CFR 1201.14 to 

provide that amici are not permitted to 

e-file. The MSPB considered the option 

of reconfiguring e-Appeal Online to 

address Privacy Act concerns and allow 

amici to file using e-Appeal Online but 

determined that the cost of such a 

change was not justified considering 

how rarely the Board receives amicus 

briefs. 

Section 1201.21 Notice of Appeal 

Rights 

As discussed more fully below, in 

connection with jurisdiction over 

Individual Right of Action (IRA) appeals 

under Part 1209, the Board is proposing 

to change longstanding jurisprudence 

concerning allegations of reprisal for 

whistleblowing under 5 U.S.C. 

2302(b)(8) where an employee has been 

subjected to an otherwise appealable 

action. Under the provisions of 5 U.S.C. 

7121(g)(3), such an employee ‘‘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 

5 U.S.C. 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 (5 U.S.C. 1214), which can be 

followed by an IRA appeal filed with 

the Board (5 U.S.C. 1221). Under 

subsection (g)(4), an election is deemed 

to have been made based on which of 

the 3 actions the individual files first. 

A plain reading of § 7121(g) would 

appear to indicate that, contrary to 

longstanding Board precedent, an 

individual who has been subjected to an 

otherwise appealable action, but who 

seeks corrective action from the Office 

of Special Counsel (OSC) before filing 

an appeal with the Board, has elected an 

IRA appeal, and is limited to the rights 

associated with such an appeal, i.e., the 

only issue before the Board is whether 

the agency took one or more covered 

personnel actions against the appellant 

in retaliation for making protected 

whistleblowing disclosures; the agency 

need not prove the elements of its case, 

and the appellant may not raise other 

affirmative defenses. As discussed in 5 

CFR 1209.2 below, the proposed 

regulation would overrule the Board’s 

longstanding precedent in this area. 

The proposed regulation would 

require agencies to fully notify 

employees of their rights in these 

situations so that they can make an 

informed choice among the available 3 

options. Paragraph (e) was added to 

require notice in mixed cases. 

Section 1201.22 Filing an Appeal and 

Responses to Appeals 

The MSPB proposes to revise this 

regulation to include a new section 

stating the MSPB’s general rule about 

constructive receipt. This provision also 

includes several illustrative examples. 

Section 1201.23 Computation of Time 

The MSPB proposes to amend the first 

sentence of this regulation so that it will 

apply to all situations in which a 

deadline for action is set forth in the 

MSPB’s regulations or by a judge’s 

order, including discovery requests and 

responses between the parties. 

Section 1201.24 Content of an Appeal; 

Right to Hearing 

The proposed revision radically 

reduces the scope of requested 

attachments from ‘‘any relevant 

documents’’ to a request for the 

proposal notice as well as the decision 

notice, and for the SF–50 if available. It 

also cautions appellants not to delay 

filing and miss a deadline if they lack 

any of these documents. 

In the MSPB’s experience these 

documents, in conjunction with the 

items of information mandated in 5 CFR 

1201.24(a)(1)–(9), are all that is 

necessary in order to docket a new 

appeal and issue appropriate 

acknowledgment and jurisdictional 

orders. Under the current regulation, 

appellants frequently file numerous 

attachments, many of which will be 

included as part of the agency file, and 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33665 

other documents that are not relevant to 

the disposition of the appeal. 

The proposed regulation does not 

mandate the attachment of documents 

that would demonstrate that the 

appellant has satisfied the jurisdictional 

requirement of exhausting an 

administrative procedure in IRA and 

Veterans Employment Opportunity Act 

(VEOA) appeals. Obtaining such 

documents is best left to 

acknowledgment and jurisdictional 

orders issued after an appeal is filed. 

The current MSPB Appeal Form 

requests the attachment of numerous 

documents. If the proposed revision is 

adopted, the MSPB will revise the 

Appeal Form so that it is consistent 

with the regulation. 

The definition of ‘‘right to hearing’’ in 

paragraph (d) is amended to explain that 

‘‘in an appeal under 5 U.S.C. 7701, an 

appellant generally has a right to a 

hearing on the merits if the appeal has 

been timely filed and the Board has 

jurisdiction over the appeal.’’ 

Section 1201.28 Case Suspension 

Procedures 

The MSPB proposes to overhaul its 

case suspension procedures. Unlike the 

current regulation, the draft regulation 

does not include separate subsections 

for unilateral requests and joint 

requests. The amended regulation 

allows for more than a single 30-day 

suspension period and eliminates the 

current restrictions on when a request 

must be filed. 

Section 1201.29 Dismissal With 

Prejudice 

This proposed regulation codifies 

existing case law concerning dismissals 

without prejudice. See, e.g., Wheeler v. 

Department of Defense, 113 M.S.P.R. 

519, ¶ 7 (2010); Milner v. Department of 

Justice, 87 M.S.P.R. 660, ¶ 13 (2001). 

The regulation also recognizes the 

necessity to give administrative judges 

discretion to grant dismissals without 

prejudice and does not include a 

requirement that cases that have been 

dismissed without prejudice should 

automatically be reinstated because 

many cases are not reinstated at all 

following a dismissal without prejudice. 

The regulation sets forth a rule requiring 

the judge to fix a date certain by which 

the appeal must be refiled. In a case 

where the setting of such a date is 

impractical, the rule includes a 

reference to a judge’s authority under 5 

CFR 1201.12 to waive the regulation 

when appropriate. 

Section 1201.31 Representatives 

The ‘‘or after 15 days’’ clause is 

proposed to be added at the end of the 

third sentence in 5 CFR 1201.31(b) to 

acknowledge that a representative’s 

conflict of interest may not be readily 

apparent. The MSPB also proposes to 

move the provisions in 5 CFR 

1201.31(d) governing exclusion and 

other sanctions for contumacious 

behavior by parties and representatives 

to 5 CFR 1201.43 (Sanctions). See that 

section for proposed revisions. 

Section 1201.33 Federal Witnesses 

The proposed language has been 

added to clarify that an agency’s 

responsibility under this regulation 

includes producing witnesses at 

depositions as well as at hearings. 

Section 1201.34 Intervenors and 

Amicus Curiae 

The present regulation defines an 

amicus curiae as a person/organization 

that files a brief with ‘‘the judge,’’ and 

that persons/organizations may, in the 

discretion of ‘‘the judge,’’ be granted 

permission to file a brief. In practice, the 

Board has recently been receiving 

motions to file amicus briefs for the first 

time on petition for review, and the 

Board has been granting at least some of 

those requests. The proposed regulation 

addresses this discrepancy and also 

provides further explanation as to what 

an amicus is permitted to do. 

In addition, there are presently no 

criteria in the regulation indicating 

when requests to file amicus briefs will 

be granted or denied. The proposed 

regulation sets forth general guidelines 

while maintaining the current language 

that provides that such requests may be 

granted in the judge’s (or Board’s) 

discretion. These general guidelines 

(legitimate interest, no undue delay, 

material contribution to proper 

disposition) are similar to those found 

in the regulations of some other federal 

adjudicatory agencies. 

Section 1201.36 Consolidating and 

Joining Appeals 

In the second sentence of subsection 

(a)(2), the MSPB proposes to substitute 

‘‘removal’’ for ‘‘dismissal.’’ Dismissal is 

not a term used by the Board to describe 

an employee’s separation from 

employment for disciplinary reasons. 

Section 1201.41 Judges 

The proposed amendment reflects the 

language used in the MSPB Strategic 

Plan. 

Section 1201.42 Disqualifying a Judge 

The proposed amendment reflects the 

fact that under current MSPB practice a 

judge who considers himself or herself 

disqualified notifies the Regional 

Director, not the Board. 

Section 1201.43 Sanctions 

Excluding parties and representatives 

for contumacious behavior is currently 

covered by 5 CFR 1201.31 

(Representatives). The MSPB believes 

that this subject is better covered under 

5 CFR 1201.43 (Sanctions), as exclusion 

or other action for contumacious 

behavior is a sanction. The revised 

regulation would give explicit authority 

for suspending or terminating a hearing 

that has begun. The proposed rule also 

deletes the requirement of a show-cause 

order in favor a general requirement 

that, before imposing a sanction, the 

judge must provide a prior warning and 

document the reasons for any sanction. 

A formal show-cause order is simply not 

feasible where the misconduct occurs 

during a hearing. Similarly, the 

proposed rule also proposes to eliminate 

the provision for an interlocutory appeal 

of a sanction for contumacious behavior. 

The MSPB believes that review of 

sanctions of this nature via petition for 

review is sufficient and delaying the 

entire proceeding to adjudicate the 

appropriateness of a sanction is not 

warranted. The proposed rule also 

amends this regulation to permit a judge 

to limit participation by a representative 

without excluding the representative 

from the case entirely. Finally, the 

proposed rule deletes the term 

‘‘appellant’s representative’’ and instead 

substitutes the term ‘‘party’s 

representative.’’ 

Section 1201.51 Scheduling the 

Hearing 

The current extensive list of fixed 

hearing sites contained in Appendix III 

of Part 1201 causes administrative 

inefficiencies and can have adverse 

budgetary considerations for the MSPB, 

as the cost of airfares are renegotiated by 

GSA each fiscal year and cost of court 

reporters can vary considerably from 

one city to the next. This proposal gives 

the MSPB greater flexibility to change 

approved hearing sites listed on the 

Board’s public Web site instead of 

changing Appendix III through a 

Federal Register notice. 

Section 1201.52 Public Hearings 

This proposed amendment would 

give administrative judges express 

authority to control the use of electronic 

devices at a hearing. 

Section 1201.53 Record of Proceedings 

The MSPB proposes to make several 

changes to the regulation. In light of 

changing technology, the term ‘‘tape 

recording’’ has been replaced by the 

word ‘‘recording’’ and because of the 

existence of e-transcripts and other 

electronic formats, the term ‘‘written 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33666 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

transcript’’ has been replaced by 

‘‘transcript.’’ 

More significantly, the MSPB 

proposes to allow a judge or the Board 

to order the agency to pay for a 

transcript in certain circumstances: ‘‘In 

the absence of a request by a party, and 

upon determining that a transcript 

would significantly assist in the 

preparation of a clear, complete, and 

timely decision, the judge or the Board 

may direct the agency to purchase a full 

or partial transcript from the court 

reporter, and to provide copies of such 

a transcript to the appellant and the 

Board.’’ The regulation proposed by the 

MSPB is more narrowly-tailored than 

the comparable EEOC regulation that 

requires federal agencies to ‘‘arrange 

and pay for verbatim transcripts.’’ 29 

CFR 1614.109(h). 

Under 5 U.S.C. 7701(a) an appellant is 

entitled to a hearing for which a 

transcript will be kept. The MSPB has 

long satisfied this requirement by 

recording the hearing. Gonzalez v. 

Defense Logistics Agency, 772 F.2d 887, 

890 (Fed. Cir. 1985). The MSPB is not, 

however, required to produce a 

verbatim written transcript of the 

hearing. Gearan v. Department of 

Health and Human Services, 838 F.2d 

1190, 1192–93 (Fed. Cir. 1988). Thus, 

while the MSPB has in the past used 

appropriated funds to prepare a written 

hearing transcript when an agency fails 

to elect to transcribe a recorded hearing, 

the MSPB is not required to prepare a 

written transcript. As a result, the MSPB 

believes that a regulation requiring a 

Federal agency to prepare a written 

hearing transcript does not constitute an 

improper augmentation of the MSPB’s 

appropriations because the Board is not 

required to prepare such a transcript 

and Federal agencies receive 

appropriations to pay for the costs of 

litigating appeals before the Board. 

Section 1201.56 Burden and Degree of 

Proof; Affirmative Defenses 

The Board’s current regulation at 

1201.56 provides without qualification 

that jurisdiction must be proved by 

preponderant evidence. This regulation 

is in conflict with a significant body of 

Board case law holding that some 

jurisdictional elements may be 

established by making nonfrivolous 

allegations. The U.S. Court of Appeals 

for the Federal Circuit has ruled that the 

Board must abide by its published 

regulation in section 1201.56. See 

Bledsoe v. Merit Systems Protection 

Board, 659 F.3d 1097, 1101–04 (Fed. 

Cir. 2011); Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 

1338–43 (Fed. Cir. 2006) (en banc). In 

Garcia, the court observed that, because 

5 U.S.C. 7701 is silent with respect to 

the burden of proof for establishing 

jurisdiction, the Board can make rules 

regarding this matter by notice-andcomment rulemaking, and that when it 

does so, its rules are entitled to 

deference under Chevron v. Natural 

Resources Defense Council, 467 U.S. 

837, 842 (1984). Garcia, 437 F.3d at 

1338–39. The court observed that, if the 

Board is dissatisfied with its current 

rule at section 1201.56, and desires to 

change what is required to establish 

jurisdiction, it may do so by notice-andcomment rulemaking. Id. at 1343. The 

Board is now doing so. 

In reviewing our jurisprudence is this 

area, there appear to be only four types 

of jurisdictional elements in the cases 

the Board is authorized to hear: (1) 

Whether the appellant is a person 

entitled to bring the sort of appeal 

authorized by the law, rule, or 

regulation that gives the Board 

jurisdiction; (2) whether the agency 

action or decision being challenged is of 

a type covered by the law, rule, or 

regulation that gives the Board 

jurisdiction; (3) whether the appellant 

has exhausted a required administrative 

procedure; and (4) elements that relate 

to the nature or merits of the appeal or 

claim over which the Board has been 

given jurisdiction. 

When there is no overlap between 

jurisdictional issues and merits issues, 

i.e., when the only jurisdictional issues 

are of types (1) through (3), we conclude 

that all jurisdictional elements must be 

established by preponderant evidence. 

Adverse action appeals under 5 U.S.C. 

7511–7514 provide a good example why 

this conclusion is warranted. Section 

7511 sets out applicable definitions, 

including who is an ‘‘employee’’; 

section 7512 specifies the personnel 

actions that are covered; and section 

7513 sets forth the two merits issues— 

whether the action was taken ‘‘for such 

cause as will promote the efficiency of 

the service,’’ and whether the agency 

complied with prescribed procedures. 

The jurisdictional grant to the Board is 

stated in section 7513(d): ‘‘An employee 

against whom an action is taken under 

this section is entitled to appeal to the 

Merit Systems Protection Board under 

section 7701 of this title.’’ The grant of 

jurisdiction thus focuses on and is 

limited to the first two elements 

identified above: (1) Whether the 

appellant is a covered ‘‘employee’’ as 

defined in section 7511; and (2) whether 

the appellant was subjected to one of 

the personnel actions listed in section 

7512. Implicit in this statutory structure 

is an ‘‘if-then’’ condition precedent. If, 

but only if, the appellant actually is a 

covered ‘‘employee’’ who has been 

subjected to a covered personnel action, 

then the appellant is entitled to a Board 

determination of whether the agency 

took the action for such cause as will 

promote the efficiency of the service 

and whether the agency followed 

prescribed procedures. Determining 

whether the appellant actually is a 

covered employee who has been 

subjected to one of the listed personnel 

actions requires proof by a 

preponderance of the evidence. 

When Congress (or the Office of 

Personnel Management where an OPM 

regulation is the source of Board 

jurisdiction) has not clearly 

differentiated jurisdictional issues from 

merits issues, i.e., where some matters 

are both jurisdictional and merits, there 

is no justification for inferring that a 

‘‘dual purpose’’ issue is a condition 

precedent that must be proved by 

preponderant evidence before the merits 

of the case are reached. Such a 

requirement led to the counter-intuitive 

finding in Latham v. U.S. Postal Service, 

117 M.S.P.R. 400, ¶ 10 n.9 (2012), that, 

because the issue of whether a denial of 

restoration was arbitrary and capricious 

had been held to be a jurisdictional 

issue as well as a merits issue, an 

appellant who establishes jurisdiction 

over a partial recovery restoration claim 

automatically prevails on the merits of 

that claim. 

Individual right of action (IRA) 

appeals under 5 U.S.C. 1221 provide 

another example where the grant of 

Board jurisdiction does not clearly 

differentiate between jurisdictional 

issues and merits issues. Paragraph (a) 

of this section provides that: 

Subject to the provisions of 

subsection (b) of this section and 

subsection 1214(a)(3), an employee, 

former employee, or applicant for 

employment may, with respect to any 

personnel action taken, or proposed to 

be taken, against such employee, former 

employee, or applicant for employment, 

as a result of a prohibited personnel 

practice described in section 2302(b)(8), 

seek corrective action from the Merit 

Systems Protection Board. 

Although the first three types of 

jurisdictional elements are referenced in 

the grant of jurisdiction—the appellant 

must be a covered ‘‘employee, former 

employee, or applicant for 

employment,’’ must have been subjected 

to a covered ‘‘personnel action’’ that 

was ‘‘taken, or proposed to be taken,’’ 

and must have exhausted his or her 

administrative remedy with the Special 

Counsel—so is the merits issue of 

whether the covered personnel action 

was taken or proposed to be taken as a 

result of the prohibited personnel 

practice described in 5 U.S.C. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33667 

2302(b)(8), i.e., whether the personnel 

action was retaliation for protected 

whistleblowing. Both the Board and its 

reviewing court have regarded this latter 

matter as both jurisdictional and merits 

in nature. See Yunus v. Department of 

Veterans Affairs, 242 F.3d 1367, 1371 

(Fed. Cir. 2001); Rusin v. Department of 

the Treasury, 92 M.S.P.R. 298, ¶ 12 

(2002). For jurisdictional purposes, a 

nonfrivolous allegation will suffice. On 

the merits, the appellant must establish 

by preponderant evidence that he or she 

made a protected whistleblowing 

disclosure, and that the disclosure was 

a contributing factor in the personnel 

action that was taken or proposed. E.g. 

Schnell v. Department of the Army, 114 

M.S.P.R. 83, ¶ 18 (2010); Fisher v. 

Environmental Protection Agency, 108 

M.S.P.R. 296, ¶ 15 (2008). 

Section 1201.58 Closing the Record 

This proposed amendment is based 

upon case law indicating that, 

notwithstanding an order setting the 

date on which the record will close, a 

party must be allowed to submit 

evidence to rebut new evidence 

submitted by the other party just prior 

to the close of the record. See Miller v. 

U.S. Postal Service, 110 M.S.P.R. 550, 

¶ 9 (2009); Mooney v. Department of 

Defense, 44 M.S.P.R. 524, 528 (1990); 

Naekel v. Department of Transportation, 

32 M.S.P.R. 488, 496 (1987). 

Section 1201.62 Producing Prior 

Statements 

The MSPB proposes to delete this 

regulation in its entirety as it has 

virtually never been invoked or applied 

and is believed to be unnecessary. 

Section 1201.71 Purpose of Discovery 

This proposed amendment adds a 

sentence to the end of this section 

stating that discovery requests and 

discovery responses should not 

ordinarily be filed with the Board. 

Statements to this effect are currently 

contained in standard orders. 

Section 1201.73 Discovery Procedures 

The proposed changes to the 

regulation address several important 

matters. The initial disclosure 

requirement of subsection (a) has been 

eliminated in its entirety. The Board’s 

initial disclosure provision is based on 

Fed. R. Civ. P. 26(a)(1). Although such 

a requirement makes a great deal of 

sense in article III courts, it makes little 

sense in the adjudication of MSPB 

appeals. First and foremost, there is 

nothing comparable in federal court 

litigation to the Agency File in an MSPB 

proceeding. The agency file, required by 

5 CFR 1201.25, contains ‘‘[a]ll 

documents contained in the agency 

record of the action’’ being appealed. In 

the MSPB’s experience, the initial 

disclosure requirement results in 

unnecessary and unfruitful motion 

practice, and distracts both parties from 

more important matters, such as the 

preparation of the agency file and 

responses to orders on timeliness and 

jurisdiction. 

The current regulation includes 

separate subsections governing 

discovery from a party and discovery 

from a nonparty. The proposed 

amendments eliminate that distinction 

as unnecessary. There was an 

intermediate process for unsuccessful 

attempts at discovery from a nonparty, 

in which the party seeking discovery 

would seek an order from the judge 

directing that the discovery take place. 

If that was insufficient, a subpoena 

could be sought and issued. 

Under the proposed regulation, the 

requirements are essentially the same 

for parties and nonparties. The 

discovery request is served on the party 

or nonparty and/or their representative. 

If a discovery response is not 

forthcoming or is inadequate, attempts 

must be made to resolve the matter 

informally. If those attempts are 

unsuccessful, then a motion is filed 

with the judge. If the non-responsive 

entity is a party, a motion to compel 

discovery is filed. If the non-responsive 

entity is a non-party, a motion for 

issuance of a subpoena under 5 CFR 

1201.81 is filed. 

This proposed amendment also 

increases the time period in which 

initial discovery requests must be 

served from 25 days to 30 days after the 

date on which the judge issues the 

acknowledgment order. That order 

requires the production of the agency 

file within 20 days. The increase of time 

to 30 days should ensure that, in most 

cases, appellants have the opportunity 

to initiate discovery after they have seen 

what is in the Agency File. As is already 

the case, parties can seek permission to 

initiate discovery after the deadline has 

passed, and such permission should be 

granted where appropriate. 

The proposed amendments also revise 

subparagraph (d)(4) to clarify that, if no 

other deadline has been specified, 

discovery must be completed no later 

than the prehearing or close of record 

conference. A proposed change in 

subparagraph (c)(i) reflects the MSPB’s 

view that a motion to compel must 

contain a statement showing that the 

request was not only for relevant and 

material information, but that the scope 

of the request was reasonable. The 

proposed amendment also makes 

several other minor changes in the 

regulation. 

Section 1201.93 Procedures 

The proposed amendment of this 

regulation replaces the word ‘‘hearing’’ 

with the word ‘‘appeal’’ because there 

may or may not be a pending hearing in 

a case where an interlocutory appeal has 

been certified to the Board. The term 

‘‘stay the processing of the appeal’’ is 

also proposed to be inserted in lieu of 

the term ‘‘stay the appeal’’ to avoid any 

ambiguity. 

Section 1201.101 Explanation and 

Definitions 

This proposed change will clarify that 

Mediation Appeals Program (MAP) 

mediators and settlement judges may 

discuss the merits of an MSPB case with 

a party without running afoul of the 

prohibition on ex parte communication. 

Some parties, confused on this issue, 

believe that while a mediator or 

settlement judge may discuss settlement 

terms ex parte, they cannot discuss the 

merits of a case, even within the context 

of settlement discussions. 

Section 1201.111 Initial Decision by 

the Judge 

This proposed amendment would 

delete language about serving OPM and 

the Clerk of the Board to conform with 

longstanding Board practice. OPM has 

access to all of the Board’s initial and 

final decisions via the MSPB Extranet, 

and is not separately served with each 

initial decision as it is issued. The Clerk 

of the Board has immediate access to all 

issued initial decisions. 

Section 1201.112 Jurisdiction of the 

Judge 

This proposed amendment would 

allow an administrative judge to vacate 

an initial decision to accept a settlement 

agreement into the record when the 

settlement agreement is filed by the 

parties prior to the deadline for filing a 

petition for review, but is not received 

until after the date when the initial 

decision would become the Board’s 

final decision by operation of law. 

Section 1201.113 Finality of Decision 

The proposed amendment to 

paragraph (a) is intended to conform 

this regulation to the proposed revision 

to 5 CFR 1201.112(a)(4) described 

above. Paragraph (f) is added to indicate 

that the Board will make a referral to 

OSC to investigate and take any 

appropriate disciplinary action 

whenever the Board finds that an 

agency has engaged in reprisal against 

an individual for making a protected 

whistleblowing disclosure. Previously, 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33668 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

the MSPB’s regulations (5 CFR 1209.13) 

only required a referral when retaliation 

was found in an IRA appeal. Such 

referrals will also be made when 

retaliation for whistleblowing is found 

in an otherwise appealable action. 

Section 1201.114 Petition and Cross 

Petition for Review—Content and 

Procedure 

The MSPB proposes to institute page 

limitations for pleadings on petition for 

review, allow for replies to responses to 

petitions for review, and define 

petitions for review and cross petitions 

for review. Courts and many other 

federal agencies currently have page 

limitations on pleadings. Subsection (e) 

incorporates by reference the rules 

governing constructive receipt as 

proposed for 5 CFR 1201.22(b)(3). 

Finally, paragraph (b) now specifies that 

a petition or cross petition for review 

must include ‘‘all of the party’s legal 

and factual arguments.’’ This was added 

to ensure that parties do not assume that 

the MSPB works like many courts, 

where all that is required is to file a 

notice of appeal with the appellate 

court, and the Clerk of that court then 

promulgates a briefing schedule. 

Section 1201.115 Criteria for Granting 

Petition or Cross Petition for Review 

The proposed amendments set forth 

here address the criteria for granting 

petitions and cross petitions for review. 

The Board will grant a petition for 

review whenever the petitioner 

demonstrates that the initial decision 

was wrongly decided, or that the 

adjudication process was so unfair that 

the petitioner did not have an 

appropriate opportunity to develop the 

record. The proposed regulation lists the 

4 most common situations in which a 

petition or cross petition for review will 

be granted, but specifies that this listing 

is not exhaustive. 

Section 1201.116 Compliance With 

Orders for Interim Relief 

The proposed modifications to this 

regulation will combine the existing 

contents of 5 CFR 1201.116 with the 

provisions of 5 CFR 1201.115(b) and (c). 

Section 1201.117 Procedures for 

Review or Reopening 

The proposed revision to 

subparagraph (a)(1) reflects the 

significant revision to 5 CFR 1201.118, 

which would restrict ‘‘reopening’’ to 

situations in which the Board members 

have previously issued a final order or 

the initial decision has become the 

Board’s final order by operation of law. 

Section 1201.118 Board Reopening of 

Final Decisions 

The proposed amendment is intended 

to change the current Board practice of 

‘‘reopen[ing] the appeal on the Board’s 

own motion under 5 CFR 1201.118’’ 

when a party’s petition for review is 

denied, but the Board deems it 

appropriate to issue an Opinion and 

Order. The MSPB believes the better 

practice would be to amend its 

regulations to state that ‘‘reopening’’ 

only applies to, and should be reserved 

for, instances in which the Board has 

already issued a final order or the initial 

decision has become the Board’s final 

decision by operation of law. 

The MSPB’s current practice may 

involve a misinterpretation of 5 U.S.C. 

7701(e), which provides that an initial 

decision ‘‘shall be final unless—(A) a 

party to the appeal or the Director [of 

OPM] petitions the Board for review 

within 30 days after the receipt of the 

decision; or (B) the Board reopens and 

reconsiders a case on its own motion.’’ 

As now read by the MSPB, if either 

party files a timely petition for review, 

the appeal remains ‘‘open’’ and there is 

no final decision until the Board issues 

an Opinion and Order or Final Order. 

In addition to clarifying the situations 

in which an appeal may be reopened, 

the proposed amendment corrects an 

apparent anomaly in the current 

regulations in that, as presently written, 

5 CFR 1201.118 applies only to the 

reopening of initial decisions. Neither 5 

CFR 1201.118 nor any other existing 

regulation discusses the Board’s 

authority under 5 U.S.C. 7701(e) to 

reopen a final decision issued by the 

Board itself. The proposed revision 

addresses reopening of all final Board 

decisions, whether issued by the Board 

or when an initial decision has become 

the Board’s final decision. It also 

incorporates well-established case law 

as to the rare and limited circumstances 

in which the Board will reopen a final 

decision. 

Section 1201.119 OPM Petition for 

Reconsideration 

The MSPB proposes to make minor 

wording changes in this regulation in 

light of the language used in 5 CFR 

1201.117 and 1201.118, and to eliminate 

any confusion between ‘‘Final Order’’ as 

the document title of a particular type 

of final Board decision and the generic 

term ‘‘final decision,’’ which applies to 

any type of final decision, whether it be 

an Opinion and Order or a ‘‘Final 

Order.’’ 

Section 1201.122 Filing Complaint; 

Serving Documents on Parties 

This proposed amendment is 

designed to correct an oversight in the 

MSPB’s regulations. When e-Appeal 

Online was first established, it could not 

accommodate the initial filing in an 

original jurisdiction action. That was 

remedied a few years ago, and the efiling regulation itself, 5 CFR 1201.14, 

was amended so that it no longer 

excludes from e-filing the initial filing 

in original jurisdiction actions. 73 FR 

10127, 10129 (2008). Unfortunately, the 

regulations governing the filing of 

particular original jurisdiction actions 

were not amended, and they still 

prohibit using e-Appeal Online to file 

the initial pleading in these cases. 

Paragraph (a) is amended to require OSC 

to file a single copy of the complaint. 

Regarding the deletion of paragraphs 

(d) and (e), we note that other special 

types of proceedings—including 

petitions for enforcement under 5 CFR 

1201.182 and motions for attorney fees 

under 5 CFR 1201.203—do not address 

the acceptable methods of service. That 

is unnecessary, as the matter is covered 

generally under 5 CFR 1201.4(i) and 5 

CFR 1201.14, and 5 CFR 1201.121(a) 

specifies that, except where otherwise 

expressly provided, the provisions of 

subpart B (which includes 5 CFR 

1201.14) apply to original jurisdiction 

cases. 

Section 1201.128 Filing Complaint; 

Serving Documents on Parties 

See explanation under 5 CFR 

1201.122. 

Section 1201.134 Deciding Official; 

Filing Stay Request; Serving Documents 

on Parties 

See explanation under 5 CFR 

1201.122. 

Section 1201.137 Covered Actions; 

Filing Complaint; Serving Documents on 

Parties 

See explanation under 5 CFR 

1201.122. 

Section 1201.142 Actions Filed by 

Administrative Law Judges 

This proposed amendment corrects a 

typographical error. The reference to 5 

CFR 1201.37 in the second sentence 

should be changed to 5 CFR 1201.137. 

Section 1201.143 Right to Hearing; 

Filing Complaint; Serving Documents on 

Parties 

See explanation under 5 CFR 

1201.122. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33669 

Section 1201.153 Contents of Appeal 

The MSPB proposes to amend (a)(2) to 

clarify that not all discrimination 

matters may be raised with the Board. 

The MSPB is also proposing to 

substitute the term ‘‘under a negotiated 

grievance procedure’’ for the word 

‘‘grievance’’ to reflect that these are the 

only types of grievances covered under 

the mixed cases regulations. 

Section 1201.154 Time for Filing 

Appeal; Closing Record in Cases 

Involving Grievance Decisions 

The MSPB proposes to incorporate by 

reference the rules governing 

constructive receipt as proposed for 5 

CFR 1201.22(b)(3). See explanation 

above. 

Section 1201.155 Requests for Review 

of Arbitrators’ Decisions 

The MSPB proposes to remove the 

existing regulation as unnecessary and 

put in its place a new regulation 

addressing requests for review of 

arbitrators’ decisions. Although requests 

for review of arbitrators’ decisions 

under 5 U.S.C. 7121(d) by definition 

must include claims of unlawful 

discrimination under 5 U.S.C. 

2302(b)(1), they are quite different from 

other mixed cases covered by Subpart E 

of Part 1201, in that they have not been 

adjudicated in the Board’s regional 

offices by administrative judges 

pursuant the provisions of Part 1201. 

Because of this, arbitrators’ decisions 

are subject to a much more lenient 

standard of review than are decisions by 

administrative judges. See, e.g., Fanelli 

v. Department of Agriculture, 109 

M.S.P.R. 115, ¶ 6 (2008).Because of 

these differences, the MSPB concluded 

that such requests merited a single 

regulation devoted to that subject. 

Therefore, this revised regulation 

removed the existing regulation at 5 

CFR 1201.154(d) and moved into 5 CFR 

1201.155. 

The Board proposes to amend 

paragraphs (a) and (b) of the transferred 

regulation. It has long been established 

in case law that the Board has 

jurisdiction to review arbitration 

decisions in which an appellant is 

raising claims of unlawful 

discrimination, even when the appellant 

failed to raise the discrimination issue 

before the arbitrator. This was not 

always the case. The Board had held 

that its review was limited to 

discrimination claims that were raised 

before the arbitrator until the Federal 

Circuit’s contrary ruling in Jones v. 

Department of the Navy, 898 F.2d 133, 

135–36 (Fed. Cir. 1990). That decision 

was based on the court’s analysis and 

interpretation of the requirements of 

both statute (5 U.S.C. 7121(d) and 

7702(a)(1)) and regulation (5 CFR 

1201.151, .155, and .156), and the court 

specifically noted that no statute or 

regulation had been called to its 

attention that required an issue of 

prohibited discrimination to be raised 

before an arbitrator before the Board 

would have jurisdiction to consider it 

on appeal. 898 F.2d at 135. The 

proposed rule would restore the rule 

that existed prior to the Federal Circuit’s 

decision in Jones. As required by 

sections 7121(d) and 7702(a)(1), the 

employee would still receive Board 

review of both the Title 5 claim and the 

discrimination claim(s), so long as the 

discrimination claim was raised before 

the arbitrator. 

In addition to moving and amending 

the existing regulatory language, the 

MSPB proposes to add a new paragraph 

(d), which provides that the Board may, 

in its discretion, ‘‘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 an administrative 

judge to conduct a hearing.’’ This is 

because even when the discrimination 

claim was raised before the arbitrator, 

the factual record may be insufficiently 

developed to allow the Board to resolve 

the discrimination claim(s). Thus, the 

revised regulation would give the Board 

the option of ordering the parties to 

supplement the record or forwarding the 

matter to an administrative judge to 

gather additional evidence and/or 

conduct a hearing and make factual 

findings. 

Section 1201.181 Authority and 

Explanation 

The proposed amendments to this 

regulation are not substantive, but 

merely reorder the information and add 

descriptive labels to each paragraph. 

Section 1201.182 Petition for 

Enforcement 

The proposed amendments to this 

regulation clarify that the Board’s 

enforcement authority under 5 U.S.C. 

1204(a)(2) extends to situations in 

which a party asks the Board to enforce 

the terms of a settlement agreement 

entered into the record for purposes of 

enforcement as well as to situations in 

which a party asks the Board to enforce 

the terms of a final decision or order. 

Section 1201.183 Procedures for 

Processing Petitions for Enforcement 

The proposed amendments to this 

regulation would change the nature of 

an administrative judge’s decision in a 

compliance proceeding from a 

‘‘recommendation’’ to a regular initial 

decision, which would become the 

Board’s final decision if a petition for 

review is not filed or is denied. The goal 

is to ensure, to the extent feasible, that 

all relevant evidence is produced during 

the regional office proceeding, and that 

the initial decision actually resolves all 

contested issues: ‘‘[T]he 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 * * *’’ 

In addition, the amended regulation 

provides that the ‘‘responsible agency 

official’’ whose pay may be suspended 

should a finding of noncompliance 

become the Board’s final decision will 

be served with a copy of any initial 

decision finding the agency in 

noncompliance. 

To the extent that an agency found to 

be in noncompliance decides to take the 

compliance actions identified in the 

initial decision, the proposed regulation 

increases the period for providing 

evidence of compliance from 15 days to 

30 days. This was done for several of 

reasons. First, where the initial decision 

is the first time that the agency learns 

definitively what actions it must take, 

15 days would rarely be sufficient to 

have taken all required actions, e.g., the 

issuance of SF–52s and/or SF–50s and 

action taken by a payroll office. Second, 

the MSPB determined that there should 

not be different deadlines for submitting 

evidence of compliance as compared to 

contesting compliance actions with 

which the agency disagrees by filing a 

petition for review. 

As noted above, the proposed revision 

to 5 CFR 1201.182 explains that the 

MSPB considers petitions for 

enforcement in two different situations: 

(1) When the MSPB has ordered relief 

or corrective action and (2) when the 

parties have entered a settlement 

agreement into the record for 

enforcement. Proposed new paragraph 

(c) in 5 CFR 1201.183 codifies existing 

case law regarding the different burdens 

of proof that apply in these enforcement 

actions depending on whether the Board 

is adjudicating a petition to enforce 

relief ordered by the Board (typically 

status quo ante relief when the Board 

has not sustained an agency action), or 

a petition to enforce a settlement 

agreement that a party is alleging that 

the other party breached. See, e.g., Kerr 

v. National Endowment for the Arts, 726 

F.2d 730, 732–33 (Fed. Cir. 1984) 

(emphasizing the Board’s obligation, in 

ensuring status quo ante relief in a 

compliance action, to ‘‘make a 

substantive assessment of whether the 

actual duties and responsibilities to 

which the employee was returned are 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33670 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

either the same as or substantially 

equivalent in scope and status to the 

duties and responsibilities held prior to 

the wrongful discharge’’); House v. 

Department of the Army, 98 M.S.P.R. 

530, ¶ 14 (2005) (when the Board orders 

an agency action cancelled, the agency 

must return the appellant, as nearly as 

possible, to the status quo ante, which 

requires, in most instances, restoring the 

appellant to the position he occupied 

prior to the adverse action or placing 

him in a position that is substantially 

equivalent); Fredendall v. Veterans 

Administration, 38 M.S.P.R. 366, 370– 

71 (1988) (adopting judicial precedent 

that an action to enforce a settlement 

agreement is analogous to an action for 

breach of contract, and the burden of 

proof in an action for breach of contract 

rests on the plaintiff). Both the Board 

and the Federal Circuit have 

emphasized that, even though an 

appellant who alleges that the agency 

breached a settlement agreement bears 

the burden of proof, the agency bears 

the burden to produce relevant evidence 

regarding its compliance. See Perry v. 

Department of the Army, 992 F.2d 1575, 

1588 (Fed. Cir. 1993); Fredendall, 38 

M.S.P.R. at 371. 

Heading of Subpart H 

The Board proposes to revise the 

heading for Subpart H of Part 1201 to 

reflect that the subpart, as the MSPB 

proposes to amend herein, addresses 

attorney fees and related costs, 

consequential damages, compensatory 

damages, and liquidated damages. 

Section 1201.201 Statement of 

Purpose 

The MSPB proposes to amend this 

regulation by adding a provision 

relating to awards of liquidated damages 

under VEOA. 

Section 1202.202 Authority for Awards 

The MSPB proposes to amend this 

regulation by adding a provision 

relating to awards of liquidated damages 

under VEOA. 

Section 1201.204 Proceedings for 

Consequential, Liquidated, and 

Compensatory Damages 

The MSPB proposes to change ‘‘3- 

member Board’’ to ‘‘the Board’’ in order 

to cover situations in which there are 

only two Board members. In addition, 

because requests for ‘‘liquidated 

damages’’ in VEOA appeals are also 

handled in addendum proceedings, the 

MSPB proposes to modify this 

regulation to include requests for such 

damages. 

Appendix III to Part 1201 

The MSPB proposes to remove and 

reserve Appendix III. See earlier 

discussion regarding proposal to amend 

5 CFR 1201.51(d). 

Section 1203.2 Definitions 

The MSPB proposes to revise this 

regulation to acknowledge that there are 

now 12 prohibited personnel practices. 

Section 1208.3 Application of 5 CFR 

Part 1201 

The MSPB proposes to amend this 

section to reflect the references to 

liquidated damages in section 5 CFR 

1201.204. 

Section 1208.21 VEOA Exhaustion 

Requirement 

The purpose of the proposed revision 

to paragraph (a) is to clarify and codify 

an appellant’s burden of proving 

exhaustion in a VEOA appeal. 5 CFR 

1208.21 currently explains that to 

exhaust his administrative remedies 

with the Department of Labor (DOL), an 

appellant must file a complaint with 

DOL and allow DOL 60 days to resolve 

the complaint. However, this provides 

an incomplete and misleading picture of 

the exhaustion process. It is incomplete 

because it does not include the 

exhaustion requirement that DOL close 

the complaint, either on its own accord 

or based on a letter from the appellant 

after 60 days have elapsed stating that 

the appellant intends to file a Board 

appeal. See 5 U.S.C. 3330a (d)(1); 

Burroughs v. Department of Defense, 

114 M.S.P.R. 647, ¶¶ 7–9 (2010) (the 

administrative judge erred in finding 

that the appellant exhausted his 

administrative remedy with DOL based 

on the mere fact that the appellant filed 

a complaint and waited 60 days before 

appealing to the Board); Becker v. 

Department of Veterans Affairs, 107 

M.S.P.R. 327, ¶¶ 9, 11 (2007); 5 CFR 

1208.23(a)(5). It is misleading because it 

does not account for the fact that DOL 

might close its investigation before 60 

days have elapsed. The proposed 

revision provides a more accurate and 

complete picture of what is required to 

establish exhaustion in a VEOA appeal. 

The addition of paragraph (b) 

regarding equitable tolling reflects the 

Federal Circuit’s ruling in Kirkendall v. 

Department of the Army, 479 F.3d 830, 

836–44 (Fed. Cir. 2007) (en banc). 

Section 1208.22 Time of Filing 

The MSPB proposes to add paragraph 

(c) to address the possibility of excusing 

an untimely filed appeal under the 

doctrine of equitable tolling. 

Section 1208.23 Content of a VEOA 

Appeal; Request for Hearing 

Subparagraphs (a)(2)–(5) of the 

current 5 CFR 1208.23 require that a 

VEOA appeal contain information to 

establish Board jurisdiction. See Jarrard 

v. Department of Justice, 113 M.S.P.R. 

502, ¶ 9 (2010) (jurisdictional elements 

in a VEOA appeal). In particular, 

current subparagraphs (a)(4)–(5) require 

that an appellant submit evidence that 

he exhausted his remedy with DOL. See 

Downs v. Department of Veterans 

Affairs, 110 M.S.P.R. 139, ¶ 7 (2008) 

(exhaustion of the administrative 

remedy is a jurisdictional requirement 

in a VEOA appeal). However, the 

current provisions pertaining to the 

exhaustion requirement are incomplete. 

Both the Board and the Federal Circuit 

have found that the Board has VEOA 

jurisdiction only over the particular 

claims for which an appellant has 

exhausted his administrative remedy. 

See Gingery v. Department of the 

Treasury, 2010 WL 3937577 at *5 (Fed. 

Cir. 2010); Burroughs v. Department of 

the Army, 2011 MSPB 30, ¶¶ 9–10; 

White v. U.S. Postal Service, 114 

M.S.P.R. 574, ¶ 9 (2010). The first step 

of the statutory exhaustion process is to 

‘‘file a complaint with DOL containing 

‘a summary of the allegations that form 

the basis for the complaint.’ ’’ Gingery, 

2010 WL 3937577 at *5 (quoting 5 

U.S.C. 3330a(a)(2)(B)); Burroughs, 2011 

MSPB 30, ¶ 9. The purpose of this 

requirement is to afford DOL an 

opportunity to investigate the claim 

before involving the Board in the matter, 

which is the same as the purpose of the 

exhaustion requirement in an IRA 

appeal. See Gingery, 2010 WL 3937577 

at *5 (citing Ward v. Merit Systems 

Protection Board, 981 F.2d 521, 526 

(Fed. Cir. 1992)); Burroughs, 2011 MSPB 

30, ¶ 9. In order for the Board to make 

a jurisdictional ruling in a VEOA 

appeal, it must have evidence of the 

particular claims that the appellant 

raised before DOL, but an appellant can 

meet the literal requirements of the 

Board’s current regulations without 

submitting any such evidence. 

Because it is now clear that the Board 

and the court will scrutinize the 

exhaustion issue in a VEOA appeal in 

the same way that they scrutinize the 

exhaustion issue in an IRA appeal, the 

Board’s regulations on VEOA 

exhaustion ought to reflect that fact. See 

Gingery, 2010 WL 3937577 at *5 (‘‘when 

an appellant’s complaint entirely fails to 

inform the DOL of a particular alleged 

violation or ground for relief, the Board 

lacks jurisdiction over the claim’’); cf. 

Boechler v. Department of the Interior, 

109 M.S.P.R. 638, ¶ 6 (2008) (the Board 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33671 

may consider only those charges of 

whistleblowing that the appellant raised 

before OSC), aff’d, 328 F. App’x 660 

(Fed. Cir. 2009). The proposed 

amendment would, therefore, add a new 

subparagraph between current 5 CFR 

1208.23(a)(4) and (5), stating that a 

VEOA appeal must contain evidence to 

identify the specific claims that the 

appellant raised before DOL. 

In drafting the proposed revision, the 

MSPB considered that an appellant 

might exhaust his administrative 

remedy on an issue that was not 

mentioned in the original 5 U.S.C. 

3330a(1) complaint itself. Cf. 

Covarrubias v. Social Security 

Administration, 113 M.S.P.R. 583, ¶ 19 

(2010) (‘‘in showing that the exhaustion 

requirement [in an IRA appeal] has been 

met, the appellant is not limited by the 

statements in her initial complaint, but 

may also rely on subsequent 

correspondence with OSC’’). Therefore, 

the proposed revision does not require 

an appellant to submit evidence of the 

issues raised in the ‘‘complaint,’’ and it 

does not suggest that the requirements 

of the section can be satisfied by 

submitting a copy of the complaint. 

Rather, the proposed amendment is 

broad enough to encompass all matters 

that an appellant might have raised 

before DOL during the course of the 

complaint process. 

Section 1209.2 Jurisdiction 

The MSPB proposes to change the 

reference in paragraph (a) from 5 U.S.C. 

1214(a)(3) to 5 U.S.C. 1221(a). The latter 

provision is the one that authorizes 

appeals to the Board for claims of 

reprisal for protected whistleblowing. 

Section 1214(a)(3) contains the 

exhaustion requirement applicable to 

IRA appeals that do not involve an 

otherwise appealable action. The 

revised regulation also includes several 

new examples to aid in determining the 

MSPB’s jurisdiction over IRA appeals. 

Most importantly, this proposed 

regulation would overrule a significant 

body of Board case law. Starting with its 

decision in Massimino v. Department of 

Veterans Affairs, 58 M.S.P.R. 318 

(1993), the Board has consistently 

maintained the position that an 

individual who claims that an otherwise 

appealable action was taken against him 

in retaliation for making whistleblowing 

disclosures, and who seeks corrective 

action from the Special Counsel before 

filing an appeal with the Board, retains 

all the rights associated with an 

otherwise appealable action in the 

Board appeal. In an adverse action, for 

example, the agency must prove its 

charges, nexus, and the reasonableness 

of the penalty by a preponderance of the 

evidence, and the appellant is free to 

assert any affirmative defense he might 

have, including harmful procedural 

error and discrimination prohibited by 5 

U S C. 2302(b)(1). In an IRA appeal, 

however, the only issue before the 

Board is whether the agency took one or 

more covered personnel actions against 

the appellant in retaliation for making 

protected whistleblowing disclosures. 

In 1994, the year after Massimino was 

issued, Congress amended 5 U.S.C. 7121 

to add paragraph (g). Public Law 103– 

424, section 9(b), 108 Stat. 4361, 4365– 

66 (1994). Subsection (g)(3) provides 

that an employee affected by a 

prohibited personnel practice ‘‘may 

elect not more than one’’ of 3 remedies: 

(A) An appeal to the Board under 5 

U.S.C. 7701; (B) a negotiated grievance 

under 5 U.S.C. 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 (5 U.S.C. 1214), which can be 

followed by an IRA appeal filed with 

the Board (5 U.S.C. 1221). Under 5 

U.S.C. 7121(g)(4), an election is deemed 

to have been made based on which of 

the 3 actions the individual files first. 

A plain reading of 5 U.S.C. 7121(g) 

indicates that, contrary to Massimino, 

an individual who has been subjected to 

an otherwise appealable action, but who 

seeks corrective action from OSC before 

filing an appeal with the Board, has 

elected an IRA appeal, and is limited to 

the rights associated with such an 

appeal, i.e., the only issue before the 

Board is whether the agency took one or 

more covered personnel actions against 

the appellant in retaliation for making 

protected whistleblowing disclosures; 

the agency need not prove the elements 

of its case, and the appellant may not 

raise other affirmative defenses. The 

Board has never reconsidered or 

amended its holding in Massimino in 

light of the 1994 amendment to section 

7121, despite the fact that OSC later 

suggested that the Board change its 

regulatory guidance in 5 CFR 1201.21 

‘‘to include notice of the right to file a 

prohibited personnel practice complaint 

with the Special Counsel and the 

requirement for making an election 

among a grievance, an appeal to MSPB, 

and a complaint to the Special 

Counsel.’’ See 65 FR 25623, 25624 

(2000). The proposed rule adopts this 

plain language reading of 5 U.S.C. 

7121(g) and overrules Massimino and its 

progeny. 

When taking an otherwise appealable 

action, agencies would be required, per 

revised 5 CFR 1201.21, to advise 

employees of their options under 5 

U.S.C. 7121(g) and the consequences of 

such an election, including the fact that 

the employee would be foregoing 

important rights if he or she seeks 

corrective action from OSC before filing 

with the Board. 

Section 1209.4 Definitions 

The Board’s case law, as well as its 

acknowledgment and jurisdictional 

orders, speak in terms of ‘‘protected 

disclosures,’’ but this regulation defines 

‘‘whistleblowing’’ and the Part 1209 

regulations refer in several places to 

‘‘whistleblowing activities.’’ This minor 

revision to the definition combines the 

two concepts so that the use of 

‘‘whistleblowing activities’’ is not 

ambiguous. 

Section 1209.5 Time of Filing 

The MSPB proposes to amend this 

regulation to eliminate the distinction 

between IRA appeals and otherwise 

appealable actions in light of the change 

made to 5 CFR 1209.2; and revise the 

language regarding equitable tolling 

consistent with the changes made in 

sections 5 CFR 1208.21 and .22. In a 

number of IRA appeals, the Board has 

considered whether an untimely appeal 

can be excused under the doctrine of 

equitable tolling. See, e.g., Pacilli v. 

Department of Veterans Affairs, 113 

M.S.P.R. 526, ¶ 11 1011 10; Bauer v. 

Department of the Army, 88 M.S.P.R. 

352, ¶¶ 8–9 (2001); Wood v. Department 

of the Air Force, 54 M.S.P.R. 587, 593 

(1992). As in VEOA appeals, the MSPB 

believes that the possibility of excusing 

the filing deadline under the doctrine of 

equitable tolling should be addressed in 

the Board’s timeliness regulation 

Section 1209.6 Content of Appeal; 

Right to Hearing 

As with the proposed modification to 

5 CFR 1201.24(d), this proposed rule 

clarifies that an appellant does not 

automatically have a right to a hearing 

in every Board appeal; the right exists, 

if at all, only when the appeal has been 

timely filed and the appellant has 

established jurisdiction over the appeal. 

List of Subjects in 5 CFR Parts 1200, 

1201, 1203, 1208, and 1209 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, the Board proposes to 

amend 5 CFR parts 1200, 1201, 1203, 

1208, and 1209 as follows: 

PART 1200—[AMENDED] 

1. The authority citation for 5 CFR 

part 1200 continues to read as follows: 

Authority: 5 U.S.C. 1201 et seq. 

2. Add § 1200.4 as follows: 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33672 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

§ 1200.4 Petition for Rulemaking. 

(a) Any interested person may 

petition the MSPB for the issuance, 

amendment, or repeal of a rule. For 

purposes of this regulation, a ‘‘rule’’ 

means a regulation contained in 5 CFR 

parts 1200 through 1214. Each petition 

shall: 

(1) Be submitted to the Clerk of the 

Board, 1615 M Street NW., Washington, 

DC 20419; 

(2) Set forth the text or substance of 

the rule or amendment proposed or 

specify the rule sought to be repealed; 

(3) Explain the petitioner’s interest 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 

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. 

PART 1201—PRACTICES AND 

PROCEDURES 

3. The authority citation for 5 CFR 

part 1201 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

4. Revise paragraph (a) of § 1201.3 to 

read as follows: 

§ 1201.3 Appellate Jurisdiction. 

(a) Generally. The Board’s appellate 

jurisdiction is limited to those matters 

over which it has been given 

jurisdiction by law, rule or regulation. 

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: 

(1) Adverse Actions. Removals 

(terminations of employment after 

completion of probationary or other 

initial service period), reductions in 

grade or pay, suspension for more than 

14 days, or furloughs for 30 days or less 

for cause that will promote the 

efficiency of the service; an involuntary 

resignation or retirement is considered 

to be a removal (5 U.S.C. 7511–7514; 5 

CFR part 752, subparts C and D); 

(2) Retirement Appeals. 

Determinations affecting the rights or 

interests of an individual under the 

federal retirement laws (5 U.S.C. 

8347(d)(1)–(2) and 8461(e)(1); and 5 

U.S.C. 8331 note; 5 CFR parts 831, 839, 

842, 844, and 846); 

(3) Termination of Probationary 

Employment. Appealable issues are 

limited to a determination that the 

termination was motivated by partisan 

political reasons or marital status, and/ 

or if the termination was based on a preappointment reason, whether the agency 

failed to take required procedures. 

These appeals are not generally 

available to employees in the excepted 

service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 

315.806 & 315.908(b)); 

(4) Restoration to Employment 

Following Recovery from a WorkRelated Injury. Failure to restore, 

improper restoration of, or failure to 

return following a leave of absence 

following recovery from a compensable 

injury. (5 CFR 353.304); 

(5) Performance-Based Actions Under 

Chapter 43. Reduction in grade or 

removal for unacceptable performance 

(5 U.S.C. 4303(e); 5 CFR part 432); 

(6) Reduction in Force. Separation, 

demotion, or furlough for more than 30 

days, when the action was effected 

because of a reduction in force (5 CFR 

351.901); Reduction-in-force action 

affecting a career or career candidate 

appointee in the Foreign Service (22 

U.S.C. 4011); 

(7) Employment Practices Appeal. 

Employment practices administered by 

the Office of Personnel Management to 

examine and evaluate the qualifications 

of applicants for appointment in the 

competitive service (5 CFR 300.104); 

(8) Denial of Within-Grade Pay 

Increase. Reconsideration decision 

sustaining a negative determination of 

competence for a general schedule 

employee (5 U.S.C. 5335(c); 5 CFR 

531.410); 

(9) Negative Suitability 

Determination. Disqualification of an 

employee or applicant because of a 

suitability determination (5 CFR 

731.501). Suitability determinations 

relate to an individual’s character or 

conduct that may have an impact on the 

integrity or efficiency of the service; 

(10) Various Actions Involving the 

Senior Executive Service. Removal or 

suspension for more than 14 days (5 

U.S.C. 7511–7514; 5 CFR part 752, 

subparts E and F); Reduction-in-force 

action affecting a career appointee (5 

U.S.C. 3595); or Furlough of a career 

appointee (5 CFR 359.805); and 

(11) Miscellaneous Restoration and 

Reemployment Matters. Failure to afford 

reemployment priority right pursuant to 

a Reemployment Priority List following 

separation by reduction in force, or full 

recovery from a compensable injury 

after more than 1 year, because of the 

employment of another person (5 CFR 

330.214, 302.501); Failure to reinstate a 

former employee after service under the 

Foreign Assistance Act of 1961 (5 CFR 

352.508); Failure to re-employ a former 

employee after movement between 

executive agencies during an emergency 

(5 CFR 352.209); Failure to re-employ a 

former employee after detail or transfer 

to an international organization (5 CFR 

352.313); Failure to re-employ a former 

employee after service under the Indian 

Self-Determination Act (5 CFR 352.707); 

or Failure to re-employ a former 

employee after service under the 

Taiwan Relations Act (5 CFR 352.807). 

* * * * * 

5. In § 1201.4 revise paragraphs (a) 

and (j) to read as follows: 

§ 1201.4 General definitions. 

(a) Judge. Any person authorized by 

the Board to hold a hearing or to decide 

a case without a hearing, including an 

administrative law judge appointed 

under 5 U.S.C. 3105 or other employee 

of the Board designated by the Board to 

hear such cases, except that in any case 

involving a removal from the service, 

the case shall be heard by the Board, an 

employee experienced in hearing 

appeals, or an administrative law judge. 

* * * * * 

(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. 

* * * * * 

6. In § 1201.14 revise paragraphs (c) 

and (m) as follows: 

§ 1201.14 Electronic Filing Procedures. 

* * * * * 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33673 

(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); 

(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); 

(5) File a pleading that contains 

classified information (32 CFR part 

2001); or 

(6) File a request to participate as an 

amicus curiae or file a brief as amicus 

curiae pursuant to § 1201.34 of this part. 

* * * * * 

(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 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. 

(2) * * * 

* * * * * 

7. In § 1201.21 revise paragraph (d) 

and add a new paragraph (e) as follows: 

§ 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: 

* * * * * 

(d) Notice of any right the employee 

has to file a grievance or seek corrective 

action under subchapters II and III of 5 

U.S.C. chapter 12, including: 

(1) * * * 

(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) of this part; 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 III of 5 U.S.C. chapter 

12 will have on the employee’s appeal 

rights before the Board. 

(e) Notice of any right the employee 

has to file a complaint with the Equal 

Employment Opportunity Commission, 

consistent with the provisions of 29 CFR 

1614.302. 

8. In § 1201.22 revise paragraph (b) by 

adding a new subparagraph (3) as 

follows: 

§ 1201.22 Filing an appeal and responses 

to appeals. 

* * * * * 

(b) Time of filing. * * * 

(1) * * * 

(2) * * * 

(3) An appellant is responsible for 

keeping the agency informed of his or 

her current home address for purposes 

of receiving the agency’s decision, and 

correspondence which is properly 

addressed and sent to the appellant’s 

address via postal or commercial 

delivery is presumed to have been duly 

delivered to the addressee. While such 

a presumption may be overcome under 

the circumstances of a particular case, 

an appellant may not avoid service of a 

properly addressed and mailed decision 

by intentional or negligent conduct 

which frustrates actual service. The 

appellant may also be deemed to have 

received the agency’s decision if it was 

received by a designated representative, 

or a person of suitable age and 

discretion residing with the appellant. 

The following examples illustrate the 

application of this rule: 

Example A: An appellant who fails to pick 

up mail delivered to his or her post office box 

is deemed to have received the agency 

decision. 

Example B: An appellant who did not 

receive his or her mail while in the hospital 

overcomes the presumption of actual receipt. 

Example C: An appellant is deemed to 

have received an agency decision received by 

his or her roommate. 

* * * * * 

9. Revise § 1201.23 to read as follows: 

§ 1201.23 Computation of time. 

In computing the number of days 

allowed for complying with any 

deadline, the first day counted is the 

day after the event from which the time 

period begins to run. If the date that 

ordinarily would be the last day for 

filing falls on a Saturday, Sunday, or 

Federal holiday, the filing period will 

include the first workday after that date. 

10. In § 1201.24 revise subparagraph 

(a)(7) and paragraph (d) to read as 

follows: 

§ 1201.24 Content of an appeal; right to 

hearing. 

(a) * * * 

(7) Where applicable, a copy of the 

notice of proposed action, the agency 

decision being appealed and, if 

available, the SF–50 or similar notice of 

personnel action. 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. An 

appellant should not miss the deadline 

for filing merely because he or she does 

not currently have all of the documents 

specified in this section. 

* * * * * 

(d) Right to hearing. In an appeal 

under 5 U.S.C. 7701, an appellant 

generally has a right to a hearing on the 

merits if the appeal has been timely 

filed and the Board has jurisdiction over 

the appeal. 

* * * * * 

11. Revise § 1201.28 to read as 

follows: 

§ 1201.28 Case suspension procedures. 

(a) Suspension period. The judge may 

issue an order suspending the 

processing of an appeal for up to 30 

days. The judge may grant a second 

order suspending the processing of an 

appeal for up to an additional 30 days. 

(b) Early termination of suspension 

period. The administrative judge may 

terminate the suspension period upon 

joint request of the parties, or where the 

parties’ request the judge’s assistance 

and the judge’s involvement is likely to 

be extensive. 

(c) Termination 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. Add § 1201.29 as follows: 

§ 1201.29 Dismissal without prejudice. 

(a) In general. A dismissal of an 

appeal without prejudice is a dismissal 

which allows for the refiling of the 

appeal in the future. A dismissal 

without prejudice is a procedural option 

committed to the judge’s sound 

discretion, and is appropriate when the 

interests of fairness, due process, and 

administrative efficiency outweigh any 

prejudice to either party. A dismissal 

without prejudice may be granted at the 

request of either party or by the judge 

on his or her own motion. Subject to the 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33674 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

provisions of section 1201.12 of this 

part, a decision dismissing an appeal 

without prejudice shall include a date 

certain by which the appeal must be 

refiled. 

(b) Objection by appellant. Where a 

dismissal without prejudice is issued 

over the objection of the appellant, the 

appeal will be automatically refiled as 

of a date certain. 

(c) Reinstatement of Appeal. 

Depending on the type of case, the judge 

will determine whether a dismissal 

without prejudice must be refiled by the 

appellant or whether it will be 

automatically refiled as of a certain date. 

When the dismissed appeal must be 

refiled by the appellant and is refiled 

late, requests for a waiver of the late 

filing based upon good cause will be 

liberally construed. 

13. In § 1201.31 revise paragraphs (b) 

and (d) as follows: 

§ 1201.31 Representatives. 

* * * * * 

(b) A party may choose any 

representative as long as that person is 

willing and available to serve. The other 

party or parties may challenge the 

designation, however, on the ground 

that it involves a conflict of interest or 

a conflict of position. Any party who 

challenges the designation must do so 

by filing a motion with the judge within 

15 days after the date of service of the 

notice of designation or 15 days after a 

party becomes aware of the conflict. The 

judge will rule on the motion before 

considering the merits of the appeal. 

These procedures apply equally to each 

designation of representative, regardless 

of whether the representative was the 

first one designated by a party or a 

subsequently designated representative. 

If a representative is disqualified, the 

judge will give the party whose 

representative was disqualified a 

reasonable time to obtain another one. 

* * * * * 

(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 

conduct or conduct prejudicial to the 

administration of justice. 

* * * * * 

14. In § 1201.33 revise paragraph (a) 

to read as follows: 

§ 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 at a deposition or 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). 

* * * * * 

15. In § 1201.34 revise paragraph (e) 

to read as follows: 

§ 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 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. 

16. In § 1201.36 revise paragraph (a) 

to read as follows: 

§ 1201.36 Consolidating and joining 

appeals. 

(a) Explanation. (1) * * * 

(2) Joinder occurs when one person 

has filed two or more appeals and they 

are united for consideration. For 

example, a judge might join an appeal 

challenging a 30-day suspension with a 

pending appeal challenging a 

subsequent removal if the same 

appellant filed both appeals. 

* * * * * 

17. In § 1201.41, revise the first 

sentence of paragraph (b) as follows: 

§ 1201.41 Judges. 

* * * * * 

(b) Authority. Judges will conduct fair 

and impartial hearings and will issue 

timely and clear decisions based on 

statutes and legal precedents. * * * 

* * * * * 

18. In § 1201.42 revise paragraph (a) 

to read as follows: 

§ 1201.42 Disqualifying a Judge. 

(a) If a judge considers himself or 

herself disqualified, he or she will 

withdraw from the case, state on the 

record the reasons for doing so, and 

another judge will be promptly 

assigned. 

* * * * * 

19. In § 1201.43 revise the 

introductory paragraph and insert new 

paragraphs (d) and (e) to read as follows: 

§ 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 or 

limit the participation of a 

representative or other person in the 

case for contumacious conduct or 

conduct prejudicial to the 

administration of justice. When the 

judge excludes a party’s representative, 

the judge will afford the party 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 

contumacious conduct 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. 

20. In § 1201.51 revise paragraph (d) 

to read as follows: 

§ 1201.51 Scheduling the hearing. 

* * * * * 

(d) The Board has established certain 

approved hearing locations, which are 

listed on the Board’s public Web site 

(www.mspb.gov). The judge will advise 

parties of these hearing sites as 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33675 

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. 

21. Revise § 1201.52 to read as 

follows: 

§ 1201.52 Public hearings. 

Hearings are open to the public. 

However, the judge may order a hearing 

or any part of a hearing closed 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. Further, no cameras, 

recording devices, and/or transmitting 

devices may be operated, operational, 

and/or powered on in the hearing room 

without the express approval of the 

judge. 

22. Revise § 1201.53 to read as 

follows: 

§ 1201.53 Record of proceedings. 

(a) Recordings. A recording of the 

hearing is generally prepared by a court 

reporter, under the judge’s guidance. 

Such a recording is included with the 

Board’s copy of the appeal file and 

serves as the official hearing record. 

Judges may prepare recordings in some 

hearings, such as those conducted 

telephonically. Copies of recordings will 

be provided to parties without charge 

upon request. 

(b) Transcripts. A ‘‘transcript’’ refers 

not only to printed copies of the hearing 

testimony, but also to electronic 

versions of such documents. Along with 

recordings, a transcript prepared by the 

court reporter is accepted by the Board 

as the official hearing record. Any party 

may request that the court reporter 

prepare a full or partial transcript, at the 

requesting party’s expense. In the 

absence of a request by a party, and 

upon determining that a transcript 

would significantly assist in the 

preparation of a clear, complete, and 

timely decision, the judge or the Board 

may direct the agency to purchase a full 

or partial transcript from the court 

reporter, and to provide copies of such 

a transcript to the appellant and the 

Board. Judges do not prepare 

transcripts. 

(c) Copies. Copies of recordings or 

existing transcripts will be provided 

upon request to parties free of charge. 

Such requests should be made in 

writing to the adjudicating regional or 

field office, or to the Clerk of the Board, 

as appropriate. Non-parties may request 

a copy of a hearing recording or existing 

transcript under the Freedom of 

Information Act (FOIA) and Part 1204 of 

the Board’s regulation. A non-party may 

request a copy by writing 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. Nonparties may also make FOIA requests 

online at https://foia.mspb.gov. 

(d) 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. 

23. Revise § 1201.56(a) to read as 

follows: 

§ 1201.56. Burden and degree of proof; 

affirmative defenses. 

(a) Burden and degree of proof. 

(1) Agency. The agency has the 

burden of proving: 

(i) A performance-based action 

brought under 5 U.S.C. 4303 or 5335 by 

substantial evidence; and 

(ii) All other agency actions by a 

preponderance of the evidence. 

(2) Appellant. 

(i) Jurisdiction. The appellant has the 

burden of establishing Board 

jurisdiction. Unless otherwise specified 

in Parts 1201, 1208, and 1209 of the 

Board’s regulations, the jurisdictional 

elements for a particular type of appeal 

are established by the Board’s case law. 

The Board will explicitly inform the 

appellant as to the requirements for 

establishing jurisdiction in a given case. 

(A) The appellant must establish the 

following jurisdictional elements by 

preponderant evidence: Whether the 

appellant is a person entitled to bring 

the sort of appeal authorized by the law, 

rule, or regulation that gives the Board 

jurisdiction; whether the agency action 

or decision being challenged is of a type 

covered by the law, rule, or regulation 

that gives the Board jurisdiction; and 

whether the appellant has exhausted a 

required administrative remedy before 

filing a Board appeal. An appellant who 

makes a nonfrivolous allegation of a 

jurisdictional element under this 

paragraph is entitled to a jurisdictional 

hearing to establish the element by 

preponderant evidence. A nonfrivolous 

allegation is an allegation of facts that, 

if proven, would establish the 

jurisdictional element in question. 

(B) Otherwise, jurisdiction is 

established by making nonfrivolous 

allegations of fact that, if proven, would 

entitle an appellant to relief. 

(ii) Timeliness, affirmative defenses, 

and retirement matters. The appellant 

has the burden of proof, by 

preponderant evidence, with respect to: 

(A) The timeliness of the appeal; 

(B) Affirmative defenses as described 

in paragraph (c) of this section; and 

(C) Entitlement to retirement benefits 

(where an appellant’s application for 

such benefits has been denied by a 

reconsideration decision of the Office of 

Personnel Management). 

(iii) Overpayments. The appellant has 

the burden of proof, by substantial 

evidence, with respect to eligibility for 

waiver or adjustment of an overpayment 

from the Civil Service Retirement and 

Disability Fund. 

* * * * * 

24. In § 1201.58 revise paragraph (c) 

to read as follows: 

§ 1201.58 Closing the record. 

* * * * * 

(c) Once the record closes, additional 

evidence or argument will ordinarily 

not be accepted unless the party 

submitting it shows that the evidence or 

argument was not readily available 

before the record closed. 

Notwithstanding the close of the record, 

however, a party must be allowed to 

submit evidence or argument to rebut 

new evidence or argument submitted by 

the other party just before the close of 

the record. The judge will include in the 

record any supplemental citations 

received from the parties or approved 

corrections of the transcript, if one has 

been prepared. 

§ 1201.62 [Removed] 

25. Remove § 1201.62. 

26. Amend § 1201.71 by adding two 

new sentences at the end as follows: 

§ 1201.71 Purpose of discovery. 

* * * Discovery requests and 

responses thereto are not to be filed in 

the first instance with the Board. They 

are only filed with the Board in 

connection with a motion to compel 

discovery under 1201.73(c) of this part, 

with a motion to subpoena discovery 

under 1201.73(d) of this part, or as 

substantive evidence to be considered in 

the appeal. 

27. Revise § 1201.73 to read as 

follows: 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33676 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

§ 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) of this part, 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 

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 

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 of this part. 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 all 

those involved 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 that the scope of the 

request is reasonable; 

(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 part 1201); and 

(iii) A statement that the moving party 

has discussed or attempted to discuss 

the anticipated motion with the 

nonmoving 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 the motion to 

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. 

(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 served by 

parties upon another party or a nonparty 

may not exceed 25 in number, including 

all discrete subparts. 

(2) Absent prior approval by the judge 

or agreement by the parties, each party 

may not take more than 10 depositions. 

(3) Requests to exceed the limitations 

set forth in paragraphs (g)(1) and (g)(2) 

of this section may be granted at the 

discretion of the judge. In considering 

such requests, the judge shall consider 

the factors identified in § 1201.72(d) of 

this part. 

28. In § 1201.93. revise paragraph (c) 

to read as follows: 

§ 1201.93 Procedures. 

* * * * * 

(c) Stay of Appeal. The judge has the 

authority to proceed with or to stay the 

processing of 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. 

29. In § 1201.101 revise subparagraph 

(b)(2) to read as follows: 

§ 1201.101 Explanation and definitions. 

* * * * * 

(b) * * * 

(2) Decision-making official means 

any judge, officer or other employee of 

the Board designated to hear and decide 

cases except when such judge, officer, 

or other employee of the Board is 

serving as a mediator or settlement 

judge who is not the adjudicating judge. 

30. In § 1201.111 revise paragraph (a) 

ro read as follows: 

§ 1201.111 Initial decision by judge. 

(a) The judge will prepare an initial 

decision after the record closes, and will 

serve that decision on all parties to the 

appeal, including named parties, 

permissive intervenors, and intervenors 

of right. 

* * * * * 

31. In § 1201.112 revise subparagraph 

(a)(4) to read as follows: 

§ 1201.112 Jurisdiction of judge. 

(a) * * * 

(4) Vacate an initial decision to accept 

into the record a settlement agreement 

that is filed prior to the deadline for 

filing a petition for review, but is not 

received until after the date when the 

initial decision becomes final under 

1201.113 of this part. 

* * * * * 

32. In § 1201.113 revise paragraphs (a) 

and (f) to read as follows: 

§ 1201.113 Finality of decision. 

The initial decision of the judge will 

become the Board’s final 35 days after 

issuance. Initial decisions are not 

precedential. 

(a) Exceptions. The initial decision 

will not become the Board’s final 

decision 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. 

* * * * * 

(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. 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33677 

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. 

* * * * * 

33. Revise § 1201.114 as follows: 

§ 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 allegations 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 

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 of this 

part). 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 (under 5 U.S.C. 

1212(c)) 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, 1615 M 

Street NW., Washington, DC 20419, by 

commercial or personal delivery, by 

facsimile, by mail, or by electronic filing 

in accordance with 1201.14 of this part. 

(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 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 

part, 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 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: 

(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, 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 (e) 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. 

(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 3 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) Redesignate paragraph (g) as 

paragraph (i). 

(j) Redesignate paragraph (h) as 

paragraph (j) 

(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 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33678 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

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. 

34. Revise § 1201.115 to read as 

follows: 

§ 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 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. In reviewing a claim of an 

erroneous finding of fact, the Board will 

give deference to an administrative 

judge’s credibility determinations when 

they are based, explicitly or implicitly, 

on the observation of the demeanor of 

witnesses testifying at a hearing. 

(b) The initial decision is based on an 

erroneous interpretation of statute or 

regulation or the erroneous application 

of the law to the facts of the case. 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, and the resulting 

error affected the outcome of the case; 

(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. 

(e) Notwithstanding the above 

provisions in this section, the Board 

reserves the authority to identify or 

reconsider any issue in an appeal before 

it. 

35. Revise § 1201.116 to read as 

follows: 

§ 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 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, 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 of this part. 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 of this part. 

36. In § 1201.117 revise subparagraph 

(a)(1) to read as follows: 

§ 1201.117 Procedures for review or 

reopening. 

(a) * * * 

(1) Issue a decision that decides the 

case; 

* * * * * 

37. Revise § 1201.118 to read as 

follows: 

§ 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 an appeal only in unusual or 

extraordinary circumstances, and 

generally within a short period of time 

after the decision becomes final. 

§ 1201.119 [Amended] 

38. In § 1201.119(a), (b) and (d) 

remove the words ‘‘final order’’ and 

add, in their place, the words ‘‘final 

decision’’. 

39. In § 1201.122 revise paragraph (b) 

and delete paragraphs (d) and (e) of as 

follows: 

§ 1201.122 Filing complaint; serving 

documents on parties. 

(a) * * * 

(b) Initial filing and service. The 

Special Counsel must file a copy of the 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33679 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing each 

party or the party’s representative. The 

certificate of service must show the last 

known address, telephone number, and 

facsimile number of each party or 

representative. The Special Counsel 

must serve a copy of the complaint on 

each party or the party’s representative, 

as shown on the certificate of service. 

(c) * * * 

40. In § 1201.128 revise paragraph (b) 

and delete paragraphs (d) and (e) as 

follows: 

§ 1201.128 Filing complaint; serving 

documents on parties. 

(a) * * * 

(b) Initial filing and service. The 

Special Counsel must file a copy of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

respondent agency or the agency’s 

representative, and each person on 

whose behalf the corrective action is 

brought. 

(c) * * * 

41. In § 1201.134 revise paragraph (d) 

and delete paragraphs (f) and (g) as 

follows: 

§ 1201.134 Deciding official; filing stay 

request; serving documents on parties. 

* * * * * 

(d) Initial filing and service. The 

Special Counsel must file a copy of the 

request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

respondent agency or the agency’s 

representative. The certificate of service 

must show the last known address, 

telephone number, and facsimile 

number of the agency or its 

representative. The Special Counsel 

must serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. 

(e) * * * 

42. In § 1201.137 revise paragraph (c) 

and delete paragraphs (e) and (f) as 

follows: 

§ 1201.137 Covered actions; filing 

complaint; serving documents on parties. 

* * * * * 

(c) Initial filing and service. The 

agency must file two copies of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing each 

party or the party’s representative. The 

certificate of service must show the last 

known address, telephone number, and 

facsimile number of each party or 

representative. The agency must serve a 

copy of the complaint on each party or 

the party’s representative, as shown on 

the certificate of service. 

(d) * * * 

43. Revise § 1201.142 to read as 

follows: 

§ 1201.142 Actions filed by administrative 

law judges. 

An administrative law judge who 

alleges a constructive removal or other 

action by an agency in violation of 5 

U.S.C. 7521 may file a complaint with 

the Board under this subpart. The filing 

and serving requirements of 1201.137 of 

this part apply. Such complaints shall 

be adjudicated in the same manner as 

agency complaints under this subpart. 

44. In § 1201.143 revise paragraph (c) 

and delete paragraphs (e) and (f) as 

follows: 

§ 1201.143 Right to hearing; filing 

complaint; serving documents on parties. 

* * * * * 

(c) Initial filing and service. The 

appointee must file two copies of the 

request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

agency proposing the appointee’s 

removal or the agency’s representative. 

The certificate of service must show the 

last known address, telephone number, 

and facsimile number of the agency or 

its representative. The appointee must 

serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. 

(d) * * * 

45. In § 1201.153 revise subparagraph 

(a)(2) as follows: 

§ 1201.153 Contents of appeal. 

(a) * * * 

(1) * * * 

(2) The appeal must state whether the 

appellant has filed a grievance under a 

negotiated grievance procedure or a 

formal discrimination complaint 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. 

* * * * * 

46. In § 1201.154 revise the 

introductory paragraph as follows: 

§ 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 

part. 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: 

(a) * * * 

* * * * * 

47. Revise § 1201.155 to read as 

follows: 

§ 1201.155 Requests for review of 

arbitrators’ decisions. 

(a) Source and applicability. (1) 

Under paragraph (d) of 5 U.S.C. 7121, an 

employee who believes he or she has 

been subjected to discrimination within 

the meaning of 5 U.S.C. 2302(b)(1), and 

who may raise the matter under either 

a statutory procedure such as 5 U.S.C. 

7701 or under a negotiated grievance 

procedure, must make an election 

between the two procedures. The 

election of the negotiated grievance 

procedure ‘‘in no manner prejudices’’ 

the employee’s right to request Board 

review of the final decision pursuant to 

5 U.S.C. 7702. Subsection (a)(1) of 

section 7702 provides that, 

‘‘[n]otwithstanding any other provision 

of law,’’ when an employee who has 

been subjected to an action that is 

appealable to the Board and who alleges 

that the action was the result of 

discrimination within the meaning of 5 

U.S.C. 2302(b)(1), the Board will decide 

both the issue of discrimination and the 

appealable action in accordance with 

the Board’s appellate procedures under 

section 7701. 

(2) 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) Scope of Board Review. If the 

negotiated grievance procedure permits 

allegations of discrimination, the Board 

will review only those claims of 

discrimination that were raised in the 

negotiated grievance procedure. If the 

negotiated grievance procedure does not 

permit allegations of discrimination to 

be raised, the appellant may raise such 

claims before the Board. 

(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 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33680 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

agency decision to take the action, and 

other relevant documents. Those 

documents may include a transcript or 

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) Closing of the Record. 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. 

48. Revise § 1201.181 to read as 

follows: 

§ 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 

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. 

49. In § 1201.182 revise paragraphs (a) 

and (b) as follows: 

§ 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 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. 

* * * * * 

50. In § 1201.183 revise paragraphs 

(a)(2) and (a)(5) through (a)(7), (b)(1), 

(b)(2), and (c), and redesignate 

paragraphs (c) and (d) as (d) and (e) as 

follows: 

§ 1201.183 Procedures for processing 

petitions for enforcement. 

(a) Initial Processing. (1) * * * 

(2) If the agency is the alleged 

noncomplying party, it shall submit the 

name, title, grade, and address of the 

agency official charged with complying 

with the Board’s order, and inform such 

official in writing of the potential 

sanction for noncompliance as set forth 

in 5 U.S.C. 1204(a)(2) and (e)(2)(A), 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. A copy of the 

initial decision will be served on the 

responsible agency official. 

(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(e) 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 all 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 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 and the 

responsible agency official 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 and the 

responsible agency official to make this 

showing in writing, or to make it both 

personally and in writing. The 

responsible agency official has the right 

to respond in writing or to appear at any 

argument concerning the withholding of 

that official’s pay. 

(2) The Board’s final decision on the 

issues of compliance is subject to 

judicial review under § 1201.120 of this 

part. 

(3) * * * 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33681 

(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. 

(d) Redesignate paragraph (c) as 

paragraph (d). 

(e) Redesignate paragraph (d) as 

paragraph (e). 

51. Revise the heading of Subpart H 

of part 1201 to read as follows: 

Subpart H—Attorney Fees (Plus Costs, 

Expert Witness Fees, and Litigation 

Expenses, Where Applicable), and 

Damages (Consequential, Liquidated, 

and Compensatory) 

52. In § 1201.201 revise paragraph (a) 

and add a new paragraph (e) as follows: 

§ 1201.201 Statement of purpose. 

(a) This subpart governs Board 

proceedings for awards of attorney fees 

(plus costs, expert witness fees, and 

litigation expenses, where applicable), 

consequential damages, compensatory 

damages, and liquidated damages. 

* * * * * 

(e) An award equal to back pay shall 

be awarded as liquidated damages 

under 5 U.S.C. 3330c when the Board or 

a court determines an agency willfully 

violated an individual’s veterans’ 

preference rights. 

53. In § 1201.202 insert a new 

paragraph (d) and redesignate existing 

paragraph (d) as paragraph (e). 

§ 1201.202 Authority for awards. 

* * * * * 

(d) Awards of liquidated damages. 

The Board may award an amount equal 

to back pay as liquidated damages under 

5 U.S.C. 3330c when it determines that 

an agency willfully violated an 

appellant’s veterans’ preference rights. 

(e) Redesignate paragraph (d) as 

paragraph (e) 

§ 1201.204 [Amended] 

54. In § 1201.204 remove the words 

‘‘consequential damages or 

compensatory damages’’ and add, in 

their place, the words ‘‘consequential, 

liquidated, or compensatory damages.’’ 

55. Amend § 1201.204 by revising 

paragraph (h) to read as follows: 

§ 1201.204 Proceedings for consequential, 

liquidated, and compensatory damages. 

* * * * * 

(h) Request for damages first made in 

proceeding before the Board. Where a 

request for consequential, liquidated, or 

compensatory damages is first made on 

petition for review of a judge’s initial 

decision on the merits and the Board 

waives the time limit for making the 

request in accordance with paragraph 

(a)(2) of this section, or where the 

request is made in a case where the only 

MSPB proceeding is before the Board, 

including, for compensatory damages 

only, a request to review an arbitration 

decision under 5 U.S.C. 7121(d), the 

Board may: 

(1) * * * 

* * * * * 

56. Remove and reserve Appendix III 

to Part 1201. 

Appendix III to Part 1201 [Reserved] 

PART 1203—PROCEDURES FOR 

REVIEW OF RULES AND 

REGULATIONS OF THE OFFICE OF 

PERSONNEL MANAGEMENT 

57. The authority citation for 5 CFR 

part 1203 continues to read as follows: 

Authority: 5 U.S.C. 1204(A), 1204(f), and 

1204(h). 

58. In § 1203.2 revise paragraph (e) to 

read as follows: 

§ 1203.2 Definitions. 

* * * * * 

(e) Prohibited personnel practices are 

the impermissible actions described in 5 

U.S.C. 2302(b)(1) through 2302(b)(12). 

* * * * * 

PART 1208—PRACTICES AND 

PROCEDURES FOR APPEALS UNDER 

THE UNIFORMED SERVISES 

EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT AND THE VETERANS 

EMPLOYMENT OPPORTUNITIES ACT 

59. The authority citation for 5 CFR 

part 1208 continues to read as follows: 

Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 

38 U.S.C. 4331. 

60. Revise § 1208.3 to read as follows: 

§ 1208.3 Application of 5 CFR part 1201. 

Except as expressly provided in this 

part, the Board will apply subparts A 

(Jurisdiction and Definitions), B 

(Procedures for Appellate Cases), C 

(Petitions for Review of Initial 

Decisions), and F (Enforcement of Final 

Decisions and Orders) of 5 CFR part 

1201 to appeals governed by this part. 

The Board will apply the provisions of 

subpart H (Attorney Fees (Plus Costs, 

Expert Witness Fees, and Litigation 

Expenses, Where Applicable), and 

Damages (Consequential, Liquidated, 

and Compensatory)) of 5 CFR part 1201 

regarding awards of attorney fees and 

liquidated damages to appeals governed 

by this part. 

61. Revise § 1208.21 to read as 

follows: 

§ 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 an appeal with the 

Board. 

(b) Equitable tolling; extension of 

filing deadline. In extraordinary 

circumstances, the appellant’s 60-day 

deadline for filing a complaint with the 

Secretary is subject to the doctrine of 

equitable tolling, which permits the 

Board to extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

62. Amend § 1208.22 by adding a new 

paragraph (c) as follows: 

§ 1208.22 Time of filing. 

* * * * * 

(c) Equitable tolling; extension of 

filing deadline. In extraordinary 

circumstances, the appellant’s 60-day 

deadline for filing an appeal with the 

MSPB is subject to the doctrine of 

equitable tolling, which permits the 

Board to extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

63. In § 1208.23 revise subparagraph 

(a)(5) and redesignate paragraph (a)(5) as 

paragraph (a)(6) as follows: 

§ 1208.23 Content of a VEOA appeal; 

request for hearing. 

(a) * * * 

(1) * * * 

* * * * * 

(5) Evidence identifying the specific 

veterans’ preference claims that the 

appellant raised before the Secretary; 

and 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
33682 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

(6) Redesignate paragraph (a)(5) as 

paragraph (a)(6). 

* * * * * 

PART 1209—PRACTICES AND 

PROCEDURES FOR APPEALS AND 

STAY REQUESTS OF PERSONNEL 

ACTIONS ALLEGEDLY BASED ON 

WHISTLEBLOWING 

64. The authority citation for 5 CFR 

part 1208 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), 

and 7701. 

65. Revise paragraph of § 1209.2 to 

read as follows: 

§ 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 must seek corrective action 

from the Special Counsel before 

appealing to the Board. 

Example 1: 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 IRA appeal. 

Example 2: 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, and 

because he testified on behalf of a co-worker 

in an EEO proceeding. 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 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. Similarly, 

retaliation for protected EEO activity is a 

prohibited personnel practice under 

subsection (b)(9), not under subsection (b)(8). 

Example 3: Citing alleged misconduct, an 

agency proposes Employee Y’s removal. 

While that removal action is pending, Y files 

a complaint with OSC alleging that the 

proposed removal was initiated in retaliation 

for her having disclosed that an agency 

official embezzled public funds in violation 

of federal law and regulation. OSC 

subsequently issues a letter notifying Y that 

it has terminated its investigation of the 

alleged retaliation with respect to the 

proposed removal. Employee Y may file an 

IRA appeal with respect to the proposed 

removal. 

(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. 

Example 4: Same as Example 3 above. 

While the OSC complaint with respect to the 

proposed removal is pending, the agency 

effects the removal action. OSC subsequently 

issues a letter notifying Y that it has 

terminated its investigation of the alleged 

retaliation with respect to the proposed 

removal. With respect to the effected 

removal, Employee Y can elect to appeal that 

action directly to the Board, or to proceed 

with a complaint to OSC. If she chooses the 

latter option, she may file an IRA appeal 

when OSC has terminated its investigation, 

but the only issue that will be adjudicated in 

that appeal is whether she proves that her 

protected disclosure was a contributing factor 

in the removal action and, if so, whether the 

agency can prove by clear and convincing 

evidence that it would have removed Y in the 

absence of the protected disclosure. If she 

instead files a direct appeal, the agency must 

prove its misconduct charges, nexus, and the 

reasonableness of the penalty, and Y can 

raise any affirmative defenses she might 

have. 

(3) * * * 

(c) Issues before the Board in IRA 

appeals. In an individual right of action 

appeal, the only merits 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 

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 5 U.S.C. 

7121(d); or (C) corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12, i.e., a complaint filed with the 

special counsel (5 U.S.C. 1214), which 

can be followed by an IRA appeal filed 

with the Board (5 U.S.C. 1221). Under 

5 U.S.C. 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. 

66. In § 1209.4 revise paragraph (b) as 

follows: 

§ 1209.4 Definitions. 

* * * * * 

(b) Whistleblowing is the making of a 

protected disclosure, that is, a 

disclosure of information by an 

employee, former employee, or 

applicant that the individual reasonably 

believes evidences a violation of law, 

rule, or regulation, gross 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33683 

mismanagement, gross waste of funds, 

abuse of 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. 

* * * * * 

67. In § 1209.5 revise paragraphs (a) 

and (b) as follows: 

§ 1209.5 Time of filing. 

(a) General rule. The appellant must 

seek corrective action from the Special 

Counsel before appealing to the Board 

unless the action being appealed is 

otherwise appealable directly to the 

Board and the appellant has elected a 

direct appeal. (See § 1209.2(d) regarding 

election of remedies under 5 U.S.C. 

7121(g)). 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 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) At any time after the expiration of 

120 days, if the 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. 

(b) Equitable tolling; extension of 

filing deadline. The appellant’s deadline 

for filing an individual right of action 

appeal with the Board after receiving 

written notification from the Special 

Counsel that it was terminating its 

investigation of his or her allegations is 

subject to the doctrine of equitable 

tolling, which permits the Board to 

extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

(c) * * * 

68. In § 1209.6 revise paragraph (b) to 

read as follows: 

§ 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. 

* * * * * 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2012–13655 Filed 6–6–12; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0114] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security, U.S. Customs and Border 

Protection, DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) 

System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is giving concurrent notice of a 

newly established system of records 

pursuant to the Privacy Act of 1974 for 

the ‘‘Department of Homeland Security/ 

U.S. Customs and Border Protection— 

017 Analytical Framework for 

Intelligence (AFI) System of Records’’ 

and this proposed rulemaking. In this 

proposed rulemaking, the Department 

proposes to exempt the system of 

records from one or more provisions of 

the Privacy Act because of criminal, 

civil, and administrative enforcement 

requirements. 

DATES: Comments must be received on 

or before July 9, 2012. 

ADDRESSES: You may submit comments, 

identified by docket number DHS– 

2012–0114, by one of the following 

methods: 

• Federal e-Rulemaking Portal: 

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

instructions for submitting comments. 

• Fax: 703–483–2999. 

• Mail: Mary Ellen Callahan, Chief 

Privacy Officer, Privacy Office, 

Department of Homeland Security, 

Washington, DC 20528. 

Instructions: All submissions received 

must include the agency name and 

docket number for this notice. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: 

Laurence E. Castelli (202–325–0280), 

CBP Privacy Officer, Office of 

International Trade, U.S. Customs and 

Border Protection, Mint Annex, 799 

Ninth Street NW., Washington, DC 

20229. For privacy issues please 

contact: Mary Ellen Callahan (703–235– 

0780), Chief Privacy Officer, Privacy 

Office, Department of Homeland 

Security, Washington, DC 20528. 

SUPPLEMENTARY INFORMATION:

I. Background 

In accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, the Department of 

Homeland Security (DHS) U.S. Customs 

and Border Protection (CBP) proposes to 

establish a new DHS system of records 

titled, ‘‘DHS/U.S. Customs and Border 

Protection, DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) 

System of Records.’’ 

AFI enhances DHS’s ability to 

identify, apprehend, and prosecute 

individuals who pose a potential law 

enforcement or security risk; and aids in 

the enforcement of customs and 

immigration laws, and other laws 

enforced by DHS at the border. AFI is 

used for the purposes of: (1) Identifying 

individuals, associations, or 

relationships that may pose a potential 

law enforcement or security risk, 

targeting cargo that may present a threat, 

and assisting intelligence product users 

in the field in preventing the illegal 

entry of people and goods, or 

identifying other violations of law; (2) 

conducting additional research on 

persons and/or cargo to understand 

whether there are patterns or trends that 

could assist in the identification of 

potential law enforcement or security 

risks; and (3) sharing finished 

intelligence products developed in 

connection with the above purposes 

with DHS employees who have a need 

to know in the performance of their 

official duties and who have appropriate 

clearances or permissions. Finished 

intelligence products are tactical, 

operational, and strategic law 

enforcement intelligence products that 

have been reviewed and approved for 

sharing with finished intelligence 

product users and authorities outside of 

DHS, pursuant to routine uses. 

To support its capability to query, 

efficiently, multiple data sources, AFI 

creates and maintains an index, which 

is a portion of the necessary and 

relevant data in existing operational 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS