1828 L Street, NW, Suite 600 

Washington, DC 20036 

PHONE (202) 789-0100 FAX (202) 789-0101 

www.passmanandkaplan.com

Edward H. Passman (DC, MD) 

Joseph V. Kaplan (DC, MD) 

Andrew J. Perlmutter (DC, MD) 

Amy L. Beckett (DC, MD) 

Daniel T. Raposa (DC) 

Johnathan P. Lloyd (DC, VA) 

Adria S. Zeldin (DC) 

July 19, 2012 

VIA e-mail to mspb@mspb.gov 

William D. Spencer 

Clerk of the Board 

Merit Systems Protection Board 

1615 M Street NW 

Washington, DC 20419 

Re: Comments Regarding Proposed Rule 

Dear Mr. Spencer: 

Passman & Kaplan, P.C. (P&K) respectfully submits the following comments in response to the 

Merit System Protection Board’s Proposed Rule concerning 5 CFR Parts 1200, 1201, 1203, 1208 

and 1209, 77 Fed.Reg. 22,663 (June 7, 2012). P&K generally supports the Board’s overall 

proposal to review and update its procedural regulations, and agrees with most of the Board’s 

proposed revisions appearing in the Proposed Rule. However, P&K has the following specific 

concerns and objections with certain of the modifications identified in the Proposed Rule: 

5 C.F.R. § 1201.14(c): P&K is concerned about the present phrasing of the proposed new 

5 C.F.R. § 1201.14(c)(4). The present Transportation Security Administration (TSA) regulations 

defining Sensitive Security Information (SSI) are extremely broad, and as such would interfere 

with TSA appellants’ ability to e-file their cases. For example, a federal air marshal written selfidentification as a federal air marshal is itself deemed SSI, and so a federal air marshal appellant 

would not be able to e-file any document listing their own job title. See 49 C.F.R. § 

15.5(b)(11)(i)(D). Indeed, TSA may be able to retroactively remove appeals from e-filing, as 

current Board precedent permits TSA to retroactively designate information as SSI, so long as 

the designation is done consistent with contemporaneous TSA SSI regulations. See, e.g., 

MacLean v. Dept. of Homeland Security, 112 M.S.P.R. 4 (2009), aff’d 2011 MSPB 70 (2011). 

P&K also opposes the continued inclusion of class appeal-related filings and requests to appear 

as amicus curiae in the exclusion from e-filing, as currently appearing in proposed 5 C.F.R. § 

1201.14(c)(1, 6). P&K believes that any possible Privacy Act concerns could be easily 

addressed and should be revisited by the Board, especially in light of the current Board’s policy 

favoring more oral argument and amicus briefing in cases of public policy import. 
July 19, 2012 

Page 2 

5 C.F.R. § 1201.22(b)(3): P&K believes that the regulation should be modified to clarify that, 

in the event of a date discrepancy between the date of receipt by the appellant and the date of 

receipt by the appellant’s representative, then the date of the representative’s receipt should 

control. This approach is somewhat similar to that which has been used by EEOC for many 

years under 29 C.F.R. § 1614.605(d). 

 

5 C.F.R. § 1201.28: First, P&K is aware of numerous cases under the present 

regulations in which administrative judges have even rejected joint requests for case suspension. 

P&K believes that these abuses of discretion by administrative judges need to be curtailed. To 

correct the disadvantages caused by agencies’ superior position in collecting information prior to 

imposing adverse actions, which renders discovery far more important in practice for appellants 

than for agencies, P&K believes that granting requests for case suspension should be mandatory 

if requested by appellants and/or by the parties jointly. 

The proposed revisions to 5 C.F.R. § 1201.28 do not provide the administrative judges with any 

standards for exercising their discretion in adjudicating requests for case suspensions. Due to 

the abuses noted in the prior paragraph, P&K believes that, for any case suspension request that 

the Administrative Judge is not required to automatically grant, the Board should set standards to 

guide the administrative judge’s exercise of discretion in deciding case suspension requests. 

P&K believes that proposed revised 5 C.F.R. § 1201.28 who needs to be modified to deal with 

motions to compel discovery where discovery continues during case suspension. Under both the 

current and the proposed revised 5 C.F.R. §§ 1201.28, 1201.73, parties receiving deficient 

discovery responses are often required to move to compel discovery during the case suspension 

period—and such a filing could potentially terminate a case suspension under proposed revised 5 

C.F.R. § 1201.28(b). Allowing a second case suspension period does not solve this problem, as 

the adjudication of the pending motion to compel discovery would be presumably stopped (with 

all other case processing) during the second suspension period, thus leaving the dispute on 

written discovery unresolved. To resolve this issue, 5 C.F.R. § 1201.28(b) should specify that 

adjudication of a motion to compel discovery does not require termination of case suspension. 

Finally, P&K proposes that an additional section should be added to the regulation (perhaps as a 

new 5 C.F.R. § 1201.28(f)) to provide that, in the event that the parties jointly request that the 

case be referred for mediation (such as under the Board’s Mediation Appeals Program (MAP)), 

then the administrative judge shall be required to place the case on case suspension of indefinite 

duration, until such time as the case is referred back to the administrative judge by the MAP 

coordinator or mediator (either because the case settled or because mediation was unsuccessful). 

5 C.F.R. § 1201.51: P&K is aware of numerous cases in which administrative judges 

have issued orders scheduling hearings and prehearing deadlines (including prehearing 

submission deadlines) far before the parties have had the chance to complete discovery. This 

practice is highly prejudicial to appellants through denial of their ability to conduct discovery in 

support of their appeals. Further, many administrative judges unilaterally select hearing dates, 

and then burden the parties with filing verified motions to reschedule pursuant to 5 C.F.R. § 

1201.51(c); in some cases administrative judges have denied unopposed requests to reschedule 
July 19, 2012 

Page 3 

hearings (including for self-interested reasons such as the administrative judge’s own personal 

scheduled leave). The Proposed Rule seemingly takes the approach of cutting short discovery to 

meet the prehearing dates set by the administrative judge (see proposed revised 5 C.F.R. § 

1201.73(d)(4)), when the prehearing deadlines should be set to accommodate discovery. 

P&K believes that these abuses of discretion by administrative judges need to be curtailed, and to 

do so supports modifying 5 C.F.R. § 1201.51 to restrict administrative judges’ scheduling 

authority in three respects. First, 5 C.F.R. § 1201.51 should require that, before setting the 

hearing date, the administrative judge should convene a prehearing conference with the parties to 

establish dates acceptable (to the extent practicable) to both the administrative judge and to the 

parties. Second, 5 C.F.R. § 1201.51 should require administrative judges, when setting 

deadlines, to allow the parties sufficient time to complete the discovery process (including 

depositions and adjudication of discovery motions) prior to prehearing and hearing. Third, 5 

C.F.R. § 1201.51 should require that, absent the consent of the parties, the administrative judge 

may set the hearing no sooner than 90 days from the Acknowledgement Order, and the 

administrative judge may set the deadline for prehearing submissions no sooner than 80 days 

from the Acknowledgement Order. 

5 C.F.R. § 1201.52: P&K vigorously objects to permitting administrative judges to 

close hearings “when doing so would be in the best interests of the appellant, a witness, the 

public, or any other person affected by the proceeding”. P&K believes that hearing should 

always remain public, save to the limited extent necessary to protect classified information, or in 

cases where the administrative judge has granted a motion for a pseudonymous/anonymous 

“John or Jane Doe” appeal under MSPB Judges’ Handbook, Ch. 2, § 5. 

5 C.F.R. § 1201.61: Although not specifically identified in the Proposed Rule, P&K 

believes that this regulation should be modified in the Final Rule as part of the overall revisions 

to the Board’s procedural regulations. Specifically, the regulation should be clarified to state that 

documentary evidence (in addition to testimony) is included in the record for review by the 

Board, through addition of an extra sentence at the end of the regulation, “Furthermore, excluded 

evidence shall become part of the record, segregated and identified as ‘excluded evidence.’” 

P&K believes that this modification is necessary to ensure that the Board can properly review 

and oversee administrative judges’ admissibility decisions at hearing. 

5 C.F.R. § 1201.73: As noted supra concerning 5 C.F.R. § 1201.51(d)(4), P&K 

opposes limiting the discovery period to meet prehearing dates set by the administrative judge, 

and instead favors setting prehearing deadlines to accommodate completion of discovery. 

P&K has observed problems with the present discovery initiation deadlines in cases where the 

Board’s jurisdiction over the appeal is challenged (either through a motion to dismiss, or more 

frequently through a sua sponte order to show cause). Specifically, the discovery initiation often 

deadlines overlap with the parties’ briefing schedule for briefing jurisdictional issues. To 

address this recurrent problem—and to ensure that the Board has the benefit of well-drafted 

jurisdictional submissions to facilitate appellate review—P&K believes that an additional 

provision should be incorporated into 5 C.F.R. § 1201.73 mandating an automatic stay of all 
July 19, 2012 

Page 4 

discovery deadlines if the Board’s jurisdiction over the appeal is called into question (whether by 

show cause order or by motion), and that the stay shall remain in place until the jurisdictional 

issues are adjudicated. 

Finally, P&K opposes 5 C.F.R. § 1201.73(c)(1)(i) and its requirement that the party moving to 

compel discovery produce “a statement showing that the information is relevant and material and 

that the scope of the request is reasonable”. This provision seemingly requires all discovery 

requests to be relevant in order to be enforceable, when the proper standard for discovery is 

whether or not the information sought is likely to lead to the discovery of admissible evidence. 

See, e.g., 5 C.F.R. § 1201.72(a). This provision is unnecessary, in that administrative judges 

routinely decide these issues under the present regulations without any apparent difficulty. 

Practice in the federal courts place the burden of raising objections on the basis of relevance (or 

burdensomeness, in the case of scope issues) on the party resisting discovery requests; the 

proposed change would deviate from that practice and place that burden upon the requesting 

party/movant. See, e.g., United Oil Co., Inc. v. Parts Associates, Inc., 227 F.R.D. 404. 411 

(D.Md. 2005). Finally, 5 C.F.R. § 1201.73(c)(1)(i) would be an extra formalistic burden making 

it even harder for pro se appellants to be able to successfully represent themselves at the Board. 

5 C.F.R. § 1209.2: P&K believes that the proposed regulation needs to clarify that an 

election of the Independent Right of Action (IRA) procedure is solely made if the appellant files 

a whistleblower reprisal complaint on the final adverse action, and not if the appellant files with 

the Office of Special Counsel (OSC) regarding a proposed adverse action (e.g., a notice of 

proposed removal). The Whistleblower Protection Act (WPA) separately protects 

whistleblowers against threatened personnel actions. See, e.g., 5 U.S.C. § 2302(b)(8) (“Any 

employee [...] shall not [...] take or fail to take, or threaten to take or fail to take, a personnel 

action...” [emphasis added]). Accordingly, an appellant can hypothetically file a whistleblower 

reprisal claim under the WPA for a notice of proposed adverse action, and then independently 

file a separate reprisal claim for the final adverse action itself. P&K believes that the regulation 

should clearly state that no procedural election occurs when the appellant only files with OSC 

regarding a threatened personnel action, and that a procedural election for the IRA process only 

occurs if the appellant files with OSC regarding the final adverse action itself. 

This distinction is especially important due to the stay mechanism of 5 U.S.C. § 1214(b)(1), 

Appellants facing a notice of proposed adverse action will contact OSC for assistance in seeking 

a stay from the Board of the final adverse action before it is implemented, allowing OSC time to 

investigate the whistleblower reprisal claims on the threatened personnel action. P&K strongly 

believes that appellants should not be required to choose between seeking a stay and their right to 

a merits appeal of the ultimate adverse action outside of the IRA framework. 
July 19, 2012 

Page 5 

Again, P&K appreciates the opportunity to comment on the proposed regulations, and wishes to 

thank the Board for its attention and consideration. 

Respectfully submitted, 

 Joseph V. Kaplan 

Passman & Kaplan, P.C.