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December 17, 2015

VIA E-mail: mspb@mspb.gov

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

Re: Interim Final Rule, 80 Fed.Reg. 66,787-66,788 

Dear Mr. Spencer: 

The National Employment Lawyers Association (NELA) respectfully submits the following 

comments in response to the Merit Systems Protection Board’s Interim Final Rule, published in 

the Federal Register on October 30, 2015, 80 Fed.Reg. 66,787-66,788. 

NELA is the largest professional membership organization in the country of lawyers who 

represent employees in labor, employment, wage and hour, and civil rights disputes. NELA 

advances employee rights and serves lawyers who advocate for equality and justice in the 

American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of 

over 4,000 attorneys who are committed to working on behalf of those who have been illegally 

treated in the workplace. NELA has filed numerous amicus curiae briefs before the United States 

Supreme Court and other federal appellate courts regarding the proper interpretation of federal 

civil rights and worker protection laws, as well as undertaking other advocacy initiatives on 

behalf of workers throughout the United States. NELA members represent a substantial number 

of federal employees before the Merit Systems Protection Board (the Board), and thus NELA has 

an interest in proposed modifications to the Board’s federal sector regulations. 

NELA supports the Board’s Interim Final Rule which would amend 5 C.F.R. §1201.183 (a) to 

permit discovery by the parties in cases involving breach of settlement agreements and cases 

alleging noncompliance with remedial orders. Currently, permitting discovery in such cases is 

within the discretion of the Administrative Judge, but is not assured. It is critically important that 

the ability to conduct discovery be established to ensure a fair process for appellants in cases 

involving breach of settlement agreements and cases alleging noncompliance with remedial 

orders. In practice, these cases most often involve allegations by an appellant of breach or 

noncompliance by an agency. The situation is rarely reversed because most agencies have 

recourse to self-help if individual appellants breach a settlement agreement. Further, practically 

speaking, appellants cannot breach remedial orders in their favor. 
December 17, 2015

Page 2

In the absence of an opportunity for an appellant to conduct discovery, an Administrative 

Judge’s ability to make an independent determination of the sufficiency of the agency’s conduct 

is limited. Thus, the development of these cases is somewhat one-sided given that the agency has 

far greater and easier access to relevant information and witnesses. Without discovery, 

employees alleging noncompliance are left to attempt to make a written proffer based solely on 

whatever records may be in their possession, custody, or control. In contrast, even when 

employees lack the independent ability to access the agency’s records to allow critical 

adversarial examination of the agency’s compliance efforts, the agency is free to craft an agency 

file painting itself in the best possible light. 

Without discovery, hearings in breach and compliance matters do not cure this deficiency as 

employees are still left to identify hearing witnesses without adequate information. Furthermore, 

once hearing witnesses have been identified, the employee must question witnesses without the 

benefit of discovery to facilitate hearing preparation. Such discovery is extremely important in 

certain categories of breach and compliance cases, for example, cases where the agency claims 

an inability to place an employee in a position due to alleged position unavailability. 

NELA supports the Interim Final Rule as it makes such discovery automatically available when 

either party deems it necessary, and not dependent on the discretionary approval of the 

Administrative Judge. The Interim Final Rule provides the added benefit of codifying what had 

previously been a matter of case law, therefore making unambiguously clear that discovery 

should be available in all breach and compliance proceedings before the Board, as well as 

clarifying the scope and timeframes for that discovery (which previously was determined on a 

case by case basis). 

NELA appreciates the opportunity to comment on the Interim Final Rule, and thanks the Board 

for its attention and consideration. 

Respectfully submitted,

Terisa E. Chaw

Executive Director