telephonic or video hearings, and to direct parties to its Web site for resources on
arranging for telephonic or video hearings.

Sec. 1201.52, Public Hearings

As we previously commented, the Board should expect some confusion over this
section’s prohibition on powering and operating electronic recording and communication
devices in the hearing room without the judge’s express consent, because electronic
devices are increasingly multifunctional (such as, for example, laptops used for witness
questions or to project exhibits). We recommend clarifying that the section’s reach
extends to devices which have electronic recording and two-way communication
functionality, even if those are not the devices” primary functions.

Sec. 1201.53, Record of Proceedings

OPM objects to the proposed deletion of paragraph (e) of this section, which
specifies the contents of the official record of the appeal.

OPM also objects to proposed paragraph (b), which authorizes the presiding
judge, in specified circumstances, to order the agency to pay for a transcript and to
deliver it to the judge and the appellant free of charge. The Board explains, in 77 Fed.
Reg. at 33,666, that agency payments for transcripts would not have the effect of illegally
augmenting the Board’s appropriated funds, because even though 5 U.S.C. § 7701(a)
requires the Board to conduct a transcribed hearing, under Federal Circuit case law, the
Board is not required to produce its transcripts in verbatim written form. OPM does not
agree with this reasoning. The Civil Service Reform Act of 1978, as codified in 5 U.S.C.
§§ 1204(a)(1) and 7701(a), gives the Board the responsibility to conduct or provide for a
hearing in which a transcript must be kept; and the Board’s appropriations statute, Public
Law 112-74, appropriates funds to the Board for “necessary expenses to carry out [its]
functions . . . pursuant to . . . the Civil Service Reform Act of 1978.” Indeed, the Board
admits that it “has in the past used appropriated funds to prepare a written hearing
transcript.” The Comptroller General has already decisively opined that because the
conduct of hearings is the Board’s statutory responsibility, funds are not appropriated for
agencies to pay the Board’s hearing expenses and the Board may not accept hearing
expenses from agencies. 61 Comp. Gen. 419 (1982). If paragraph (b) is adopted as
proposed, therefore, it will not be enforceable.

Finally, the Board errs in describing as “comparable” the EEOC regulation
requiring agencies to pay for verbatim transcripts. The EEOC’s apparent justification for
its regulation is that "the hearing . . . take[s] place at the agency level," even though an
EEOC administrative judge presides. See 57 Fed. Reg. 12,634, 12,636 (Apr. 10, 1992).
In adopting this approach, the EEOC rejected its earlier proposal to "eliminate[ ] the
hearing from the agency investigation stage" and to "shift" the hearing "from the agency

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Sec. 1201.137, Covered Actions; Filing Complaints; Serving Documents on Parties.

The Board proposes in paragraph (c) to eliminate the current restriction on initial
filing and service by electronic means. However, the Board has retained the requirement
that the appointee must file two copies of the request, a requirement that does not make
sense in the electronic filing context, and that is inconsistent with proposed sections
1201.122 and 1201.134. We recommend removing the requirement for filing two copies.

Sec. 1201.155, Requests for Review of Arbitrators’ Decisions

Proposed paragraph (d) of this section would allow the Board to deny finality to
an arbitrator’s decision on a grievance, and to reopen the record for additional evidence
or to retry the grievance before the Board’s own administrative judge. OPM renews its
comment that this provision conflicts with the collective bargaining process and the
election of the union to pursue a matter in arbitration. Once filed, the matter belongs to
the arbitrator; at best, any direction to supplement the record should be directed to the
parties for submission to the arbitrator in question.

Sec. 1201.182, Petition for Enforcement

We strongly agree with the Board’s proposed edits clarifying that the Board’s
authority to enforce a final decision or order includes the authority to enforce a settlement
agreement that is entered into the record of an order or decision under the Board’s
appellate jurisdiction. This statement in the regulations will help the Government defend
against collateral suits to enforce Board settlement agreements in other venues, such as
the Court of Federal Claims.

Sec. 1201.183, Procedures for Processing Petitions for Enforcement

Proposed section 1201.183 would change the current practice of judges issuing
recommended decisions on petitions for enforcement, to a new practice of having them
issue initial decisions subject to a petition for review. However, the Board would not be
able to simply deny an agency’s petition for review or to allow an initial decision to
become final in the absence of a petition for review. Instead, proposed paragraph (b)
requires the Board, in all situations, to “render a final decision on the issues of
compliance” following “review of the initial decision and the written submissions of the
parties.” Further, “[u]pon 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.” The responsible official may
also “respond in writing or . . . appear at any argument concerning the withholding of that
individual’s pay.” We believe that these are important safeguards for cases in which
significant sanctions may be imposed.

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Board’s responsibility to serve OPM with initial decisions, since it is a statutory duty of
the Board under 5 U.S.C. § 7701(b)(1).

Sec. 1201.113, Finality of Decision

Although the Board does not appear to be contemplating a change to the existing
regulations regarding when initial decisions become final (35 days after issuance) and the
time limit for filing a petition for review (35 days after date of issuance of the initial
decision), OPM renews its comment that the Board should address the difficulty that
arises when a judge orders compliance with an initial decision on a date prior to the date
the initial decision becomes final. For example, one recent initial decision ordered
compliance “no later than 20 calendar days after the date of this Order.” OPM
recommends that the Board include, in this section, a requirement that, except in
circumstances where the Board has ordered interim relief, the date the judge provides for
a party to comply with an initial decision must be on or after the date the initial decision
becomes final. This recommendation may eliminate confusion among appellants as to
why OPM has not complied with an order in an initial decision in circumstances when
the compliance date precedes the deadline for filing a petition for review. It may also
reduce the number of compliance actions filed with the Board prior to the initial
decision’s finality date.

Sec. 1201.114, Petition and Cross Petition for Review — Content and Procedure.

OPM renews its comment that the references in proposed paragraph (a),
subparagraphs (1), (2), (4), and (5) to “a party” are incomplete to the extent that they do
not include the OPM Director or the Special Counsel.

Proposed paragraph (a) defines a “petition for review” and a “cross petition for
review,” and states that “a cross petition for review has the same meaning as a petition
for review ....” Paragraph (a) also provides a new definition of “reply to a response to a
petition for review.” Because a cross petition for review has the same meaning as a
petition for review, paragraph (a)(4) appears to permit a reply to a response to a petition
for review or a cross petition for review. This seems to be confirmed by the last sentence
of proposed section 1201.114(e), which provides that “[a]ny 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.” Nevertheless, the intent is not free
from ambiguity, and OPM renews its recommendation that the Board include an explicit
reference to cross petitions for review in the definition of a reply at section
1201.114(a)(4). OPM would support permitting replies in both contexts.

Proposed paragraph (h) imposes page limits on briefs. OPM renews its
recommendation that the Board regulate spacing limits as well, or impose maximum

wn



investigation process to the EEOC appeal process." 54 Fed. Reg. 45,747, 45,748 (Oct.
31, 1989). Yet MSPB initial decisions, unlike EEOC initial decisions, are not reviewable
by a final agency decisionmaker. Accordingly the EEOC’s basis for expense-shifting is
unavailable to the Board (in addition to being untested as a matter of appropriations law).

5 C.F.R. § 1201.73, Discovery procedures

Paragraph (a) of section 1201.73 of the present regulations, which provides for
initial disclosures during discovery, is deleted in the revised regulations. OPM strongly
supports this change.

Paragraph (c) of section 1201.73 of the current regulations also includes the
following text regarding a motion to obtain discovery from a nonparty:

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

This provision is not included in the revised regulations and there is no
explanation for the deletion. OPM requests that the Board explain this change in the
supplementary information accompanying the final rule.

Sec. 1201.93, Procedures

The proposed rule allows a stay during an interlocutory appeal, but it is unclear
whether this stay is charged against the 60-day aggregate limit on case suspensions.
OPM renews its comment that this point should be clarified.

Sec. 1201.111, Initial Decision by Judge

The Board proposes to eliminate language currently in paragraph (a) of this
section, requiring judges to serve initial decisions on OPM. The accompanying
supplementary information, 77 Fed. Reg. at 33,667, states that the text is no longer
necessary because the Board makes its initial decisions available via an extranet service.
Although OPM has no objection to eliminating language requiring judges to personally
serve OPM with initial decisions, we recommend against eliminating all reference to the

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court (or administrative review body) may feel free to depart from its reasoning both
because the decision has been classified as “non-precedential” and because an entirely
different panel may review the issue on appeal. In the context of Board practice,
however, the administrative judges will not have this freedom as a practical matter.

Sec. 1201.118, Board Reopening of Final Decisions

Section 1201.118 of the proposed rule, concerning Board reopening of final
decisions, states that the Board will exercise its discretion to reopen a final decision “only
in unusual or extraordinary circumstances, and generally within a short period of time
after the decision becomes final.” This would establish a very high standard for
reopening. Under this standard, it will be extremely difficult for OPM or another agency
to successfully seek relief from an erroneous order, even though an agency may be in the
best position to perceive and notify the Board of such an error. This standard seems
particularly problematic given that agencies may not seek judicial review, and OPM may
petition for such review only when the underlying matter meets a statutory standard that
is itself exacting. We renew our recommendation that the Board preserve the current
reopening language, at least with respect to agencies seeking to point out a mistake in fact
or law.

Sec. 1201.119, OPM Petition for Reconsideration

The Board proposes to amend paragraphs (a), (b), and (d) to clarify that the
Director of OPM may seek reconsideration of the Board’s “final decision,” which is
defined in section 1201.117(c) as either a precedential Opinion and Order or a
nonprecedential Final Order. In the accompanying supplementary information, 77 Fed.
Reg. at 33,668, the Board makes its intent clear: to recognize OPM’s right to petition for
reconsideration of “any type of final decision, whether it be an Opinion and Order or a
“Final Order.”

OPM welcomes this amendment. In the event that the Board does not accept
OPM’s recommendation to eliminate nonprecedential Final Orders altogether, the
proposed amendment to section 1201.119 preserves the Government’s interest in seeking
judicial review of nonprecedential Final Orders in appropriate circumstances. As OPM
stated in its December 1, 2011 comments, when the Board exercises its discretion to
review an Initial Decision, its issuance of a Final Order with additional discussion,
instead of an Opinion and Order, should not prejudice the right of OPM to petition for
reconsideration. In this respect we believe that a Final Order secured after the Board’s
grant of a petition for review is distinguishable from an Initial Decision that is merely
allowed to become final after a petition for review is denied. Compare Horner v. Burns,
783 F.2d 196, 201-2 (Fed. Cir. 1986).



UNITED STATES OFFICE OF PERSONNEL MANAGEMENT
Washington, DC 20415

Office of the
General Counsel

JUL 23 2012)

The Honorable Susan Tsui Grundmann
Chairman

U.S. Merit Systems Protection Board
1615 M Street, NW

Washington, D.C. 20419-0002

Re: OPM Comments on the MSPB Proposed Rule to Amend 5 C.F.R. Parts
1200, 1201, 1203, 1208, and 1209. Practices and Procedures

Dear Ms. Grundmann:

Thank you for the opportunity to comment on the Board’s proposed rule to amend
its adjudicatory practices and procedures, published at 77 Fed. Reg. 33,663 (June 7,
2012). Thank you also for the transparency with which you have undertaken this
rulemaking, including the opportunity, late last year, for OPM and other stakeholders to
submit comments on the preliminary recommendations of your regulatory working
group. OPM submitted comments on the preliminary recommendations on December 1,
2011 and we are pleased that the proposed rule reflects many of our comments. I set
forth OPM’s comments on the proposed rule below.

Specific Comments:

Sec. 1200.4, Petition for Rulemaking

Paragraph (b) states that in response to a rulemaking petition, the Board may
either initiate a rulemaking proceeding or issue “a final rule.” OPM renews its December
1, 2011 comment that because the Board is a quasi-judicial agency, there is a risk that
advocates will strategically use rulemaking petitions in anticipation of litigation. For this
reason, and in the interest of fairness, OPM recommends that the Board indicate that it
will proceed pursuant to notice and comment rulemaking, even when such procedures are
not technically required.

www.opm.gov Recruit, Retain and Honor a World-Class Workforce to Serve the American People \www.usajobs.gov



Conclusion

We thank you again for the opportunity to comment on your ambitious endeavor.

Sincerely,

(A IG

ELAINE KAPLAN
General Counsel

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However, the accompanying supplementary information, 77 Fed. Reg. at 33,669,
states that the initial decision “would become the Board’s final decision if a petition for
review is not filed or is denied.” This statement is contrary to the express text of the
proposed rule, which requires the Board to affirmatively decide the issues of compliance;
and it posits an alternative approach to sanctions under which responsible agency
officials would receive inadequate procedural safeguards. The Board should disavow this
statement, in the supplementary information accompanying the final rule. In any event,
because the statement is not consistent with the rule’s text, the inconsistency may hinder
the rule from receiving deference in judicial proceedings. See, e.g., Christensen v. Harris
County, 529 U.S. 576, 588 (2000).

Further, it appears that the agency’s “good faith effort” to be in compliance is
eliminated as one of the factors to be considered under proposed paragraph (a)(5). OPM
renews its recommendation that the good faith element in the current regulations be re-
inserted into this text. OPM, for example, is often dependent on other agencies to
provide SF-50s, 52s, 2806s, 3100s, and the like in order to effectuate compliance in cases
where it is the respondent. Accordingly, OPM could well require more than 30 days to
fully effectuate a decision, even when it makes its best efforts to comply. For example,
when a retiree prevails in an appeal concerning belated post-1956 military service
deposits for Civil Service Retirement System retirement credit, OPM, or the appellant’s
employing agency, must often obtain records of the retiree’s military earnings to compute
the amount of the post-1956 military service deposit. Because military earnings must be
obtained from the Defense Finance and Accounting Service, this is frequently a very
lengthy process for reasons that are entirely beyond OPM’s control. Similar concerns
arise as to other sorts of records critical to retirement decisions that are maintained by
other agencies (e.g., the Department of Veterans Affairs and the Office of Workers’
Compensation Programs).

Sec. 1203.13, Filing Pleadings

The Board proposes to amend sections 1201.122 and 1201.134 to eliminate
requirements for filing multiple copies of pleadings, and to allow e-filing for the
pleadings governed by those sections. OPM recommends that the Board make similar
changes to section 1203.13. In practice, the Office of the Clerk of the Board is already
functioning as if the amendment has been made, and the Clerk’s practice should be
ratified for the convenience of OPM and petitioners alike.

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word limits. Text should also be added to address the consequences, if any, if a brief
does not conform to the Board’s page limits.

Sec. 1201.115, Criteria for Granting Petition or Cross Petition for Review

This proposed section is potentially problematic in that, by employing the phrase
“includ[ing] but not limited to” the Board proposes an open-ended, discretionary standard
for granting or denying a petition for review. With an open-ended standard for granting
or denying petitions for review, agencies and appellants alike will have no way to reliably
predict whether their petitions will be successful. This will create an incentive for parties
to petition for review of every unfavorable initial decision. Appellants will unnecessarily
waste time and resources contesting unwinnable cases, while the Board may see a
significant spike in workload and a case processing backlog.

Another consequence of an open-ended regulatory standard for granting and
denying petitions for review is that a standard will be developed through case law. It will
be especially burdensome to require pro se appellants to research Board case law to
determine whether their petitions for review will be successful.

A final consequence of the rule change may be the creation of an unwarranted
perception that the Board is not applying a consistent, principled legal standard in
granting or denying petitions for review. We therefore renew our recommendation that
the Board make its list of criteria for granting petitions for review exclusive, not
inclusive.

Sec. 1201.116, Compliance with Orders for Interim Relief

Although proposed paragraph (a) merely incorporates certification requirements
from current § 1201.115, and no changes have been made through the modification of
this provision, OPM renews its recommendation that this section be revised to provide an
agency the opportunity to seek a stay of interim relief while its petition for review is
pending.

Sec. 1201.117, Procedures for Review or Reopening

Paragraph (c) is the regulatory provision, originally adopted on October 5, 2010,
specifies that a final Board decision in the form of a Final Order is not precedential, while
a final Board decision issued in the form of an Opinion and Order is precedential.
Although it already has been promulgated as a final rule, and remains unchanged in the
proposed revision of section 1201.117, OPM takes this opportunity to renew its request
that the Board reconsider this provision. In the context of Board practice, we do not
believe that the characterization of an opinion as “non-precedential” is meaningful.
Where non-precedential decisions are issued by a panel on the court of appeals, the lower

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to produce a witness at a time inconsistent with the judge’s order. If the paragraph is
ultimately adopted, it should address these possibilities.

If paragraph (a) is adopted, OPM renews its comment that the rule be revised to
(i) include a requirement that the non-party agency employing the witness in question be
served by the judge with the order including the nonparty agency's employee among the
approved witnesses; (ii) include a requirement that the non-party agency be given an
opportunity to object to or seek modification of the order before it becomes effective; and
(iii) eliminate the possibility of any adverse inference against the respondent agency with
respect to the non-appearance of any employee not under its control.

Sec. 1201.34, Intervenors and Amicus Curiae

Paragraph (e)(1) allows “[a]ny person or organization” to “request permission” to
file an amicus brief and provides the standards that the Board will apply in deciding
whether to grant such permission. We support this change to the Board’s rules. We
renew our comment that if the Board anticipates continuing its recent practice of
soliciting amicus briefs through Federal Register notices, it should be referenced here.

Sec. 1201.35, Substituting Parties

The Board did not propose amending this section, which currently only addresses
substituting appellants who have died or otherwise become unable to process an appeal.
We recommend that the Board revise this section to also provide, consistent with its case
law, that when an appellant files an appeal against the wrong agency, the presiding judge
must substitute the proper party as the defending agency. See, e.g., Fitzgerald v. Dep't of
the Navy, 70 M.S.P.R. 152, 156 (1996), overruled in part on other grounds, Streeter v.
Dep't of Def, 80 M.S.P.R. 481, 484 n.2 (1998). Likewise we recommend that the Board
clarify when other agencies may be added as necessary defending parties. See, e.g., Kelly
v. Office of Pers. Mgmt., 53 M.S.P.R. 511, 514 (1992). These amendments are of
interest to us because of involuntary retirement appeals and suitability appeals in which
the appellant names the wrong defending agency. If the Board believes that these
changes would not be a logical outgrowth of the notice and comment process for this
tulemaking, however, see, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158,
174 (2007), the Board should issue a separate notice of proposed rulemaking for these
amendments.

Sec. 1201.51, Scheduling the Hearing
The Board proposes to refer parties to its Web site for a current list of approved

hearing locations for in-person hearings. Consistent with our December 1, 2011
comments, we recommend that the Board also use this section to expressly authorize

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Sec. 1201.22, Filing an Appeal and Responses to Appeals.

Examples A, B, and C in proposed section 1201.22(b) purport to illustrate when
an appellant is deemed to have received correspondence served by the agency. OPM
recommends deleting the examples because they could be read as determinative in
circumstances where they would be misleading. Example B states that an appellant who
fails to pick up his mail due to hospitalization is not deemed to have received his mail;
but the presumption is not necessarily valid if the appellant has made arrangements for a
person of suitable age and discretion to pick up his mail during his hospitalization.
Likewise example C states that an appellant is deemed to have received mail when it has
been received by a roommate of suitable age and discretion; but the presumption fails if
the roommate, while discreet, nonetheless has malicious intent to withhold or destroy the
mail. The examples should be deleted and questions of this nature should be reserved for
fact finding under the general standards prescribed by the proposed rule.

Sec. 1201.24, Content of an Appeal; Right to a Hearing

OPM generally supports these changes. Requiring the appellant to submit only a
copy of the decision or notice of agency action from which he or she appeals should
reduce the number of duplicative documents submitted to OPM and the Board during an
appeal.

5 C.F.R. § 1201.29 “Dismissal without prejudice”

Proposed section 1201.29(b) allows an appellant to object in advance to a
dismissal without prejudice, but does not require the advance notice that would make
such objections possible. OPM recommends that when a judge, on his or her own
motion, dismisses an appeal without prejudice, he or she must first notify the parties and
give them an opportunity to object.

Sec. 1201.33, Federal Witnesses

Paragraph (a) makes a Federal agency that is party to a Board proceeding
responsible for ensuring the appearance of approved Federal employee witnesses who are
employed by non-party agencies. OPM renews its comment that this is potentially
inconsistent with agencies’ regulations issued under United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951) governing the production of witnesses for proceedings in which the
agency is not a party.

OPM also renews its comment that paragraph (a), if adopted, could pose a

potential problem for the respondent agency in terms of adverse inferences when a non-
party agency fails to produce a witness per the responding agency’s request or determines

-3-



Sec. 1201.3, Appellate Jurisdiction

OPM supports the Board’s proposal to use plain language descriptions of the
laws, rules, and regulations conferring a right of appeal.

Sec. 1201.4, General Definitions

OPM renews its comment that in paragraph (j), “date of service” should be
defined in a narrative fashion, rather than by reference to the definition of “date of
filing.” We make this observation because the “date of filing” definition is geared toward
submitting briefs to the Board and thus contains requirements that have no bearing on
how parties serve discovery requests and responses to each other (e.g., the filing
requirements for days when the Board is closed for business).

OPM renews its comment that the reference in paragraph (j) to “calendar days” is
unnecessary because paragraph (h) already defines “days” as “calendar days.”

OPM also renews its comment that paragraph (j) should cross-reference the
computation of time rules in section 1201.23.

Sec. 1201.14, Electronic Filing Procedures

OPM supports the Board’s proposal to amend paragraph (c) to expressly prohibit
electronic filing of classified information and sensitive security information.

Sec. 1201.21, Notice of Appeal Rights

Paragraph (d) makes extensive additions to the notices agencies are required to
give employees in final action letters. OPM renews its comment that this change will
make final action letters lengthy recitations of procedure. It will also increase the risk of
erroneous or inadequate notice. To avoid these outcomes, we suggest that the Board
issue a model notice as an appendix to the rule, which agencies can reference and
supplement, as needed, in their letters.

Further, even if the proposed amendment is adopted, it has gaps. OPM renews its
comment that as drafted, this section would inconsistently require agencies to give
employees specific notice of their rights under 5 U.S.C. § 7121(g) but not of their rights
under §§ 7121(d) and (e)(1).