Social Security Administration Comments 

on MSPB’s Proposed Rule Revising Adjudicatory Regulations 

February 23, 2012

Section 1200.4 Petition for Rulemaking

Draft section 1200.4(b) states “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.” 

Recommendations: Delete “or a final rule will be issued as appropriate.” This phrase permits an 

inappropriate, unilateral adoption of a final rule, without notice and comment. Also, consider 

adding a request for reconsideration process for denied petitions. 

Section 1201.21 Notice of Appeal rights 

Recommendation: That the MSPB publish model notice language for agencies to use in 

decisions to comply with the requirements of 1201.21(d). 

Section 1201.29 Dismissal Without Prejudice 

This new provision addresses dismissal without prejudice in the interest of fairness, due process 

and administrative efficiency: “...the judge may issue a decision dismissing an appeal without 

prejudice, and setting a date certain by which the appeal must be refiled.” 

Recommendation: The provision should allow the judge to set the refiling deadline based on an 

applicable triggering event instead of a date certain (e.g., after a decision in a related matter). 

Section 1201.34 Intervenors and Amicus Curiae

The proposed language provides details on what amicus curiae can and cannot do. 

Recommendation: Add that having the status of amicus curiae to file a brief does not entitle the 

amicus curiae to receive service of any pleadings or submit replies to briefs filed by the parties. 

Section 1201.51 Scheduling the Hearing 

Currently, the appendix to the regulations provides an extensive list of hearing sites. The 

proposed language would allow the MSPB more discretion in determining the hearing location. 

Recommendation: We believe this section should not be implemented. In many situations, the 

new language could require agencies to pay substantial additional travel costs, since the main 

criteria for determining hearing location would be the cost of the MSPB judge’s travel—even if 

such a location would dramatically increase agency travel costs for its representatives, as well as 

witnesses and for both the agency and the appellant. 

Section 1201.53 Record of Proceedings

This section would allow MSPB to require the agency to purchase a transcript and provide a 

copy to the MSPB and appellant if the MSPB needs it to prepare a clear and complete decision. 

Recommendation: This provision is objectionable cost-shifting. In many cases, unless the 

agency is appealing, the agency does not desire or purchase a transcript. 

Section 1201.155 Requests for Review of Arbitrators’ Decisions 

The draft section 1201.155(d) allows the MSPB, at its discretion, to develop a claim of 

prohibited discrimination. This section permits the grievant to raise an allegation of 

discrimination for the first time upon MSPB review (case law already permits this). 

Recommendation: delete the draft paragraph (d). It is prejudicial to the agency to allow the 

claim to be raised for the first time upon the MSPB’s review of an arbitrator’s award.