This language addresses the Board’s apparent concern with eliminating the possible
inference that an appellant has an absolute right to a hearing in all circumstances while
still adhering to the Board’s statutory mandate contained in 5 U.S.C. § 7701(a).

5 C.F.R. § 1201.28 Case suspension procedures.

Overall, the proposed changes to this section present a more reasonable approach
to Board practice by accepting the value and need for case suspensions in particular
matters. AFGE believes, however, that the Board should grant its judges the power to
initially suspend case processing for up to sixty days, rather than the thirty days presently
allowed by subsection (a). This would provide both the Board and the parties to an
appeal with greater flexibility in resolving cases through settlement.

5 CER. § 1201.29 Dismissal without prejudice.’

This proposed section presents a much needed change to the Board’s dismissal
without prejudice mechanism. The language and structure of the Board’s proposed
changes would, however, benefit from further revision. For example, the import of
subsection (a) would be clearer if it were divided into two subsections: one defining
dismissal without prejudice and another addressing who may grant dismissal without
prejudice. In a similar vein, the proposed subsections (b) and (c) would benefit from
being merged because they appear to address the same subject. The issue of waiver
would also benefit by being severed into its own subsection. The proposed changes
should also address the status of an appeal that has been dismissed without prejudice.
Consequently, AFGE suggests the following language:

(a) In general. Dismissal without prejudice is a procedural option that allows
for the dismissal and subsequent refiling of an appeal. An appeal that
has been dismissed without prejudice is removed from the Board’s docket
and is rendered inactive, thereby suspending all deadlines, until the
appeal is refiled or until the time for refiling has expired.

(b) Procedure. Dismissal without prejudice may be granted on the judge’s
own motion or upon request by either party. The decision whether to
dismiss an appeal without prejudice is committed to the sound discretion
of the judge; provided that dismissal without prejudice should generally
be granted when the interests of fairness, due process, and administrative
efficiency outweigh any prejudice to either party.

(c) Refiling. Subject to the provisions of section 1201.12 of this part, a
decision dismissing an appeal without prejudice will include a date
certain by which the appeal must be refiled. The judge will determine
whether the appeal must be refiled by the appellant or whether it will be

' This section is titled Dismissal with prejudice in the Board’s summary of proposed changes to its
regulations. AFGE believes the text of both the summary and the proposed regulation make it clear that
this section pertains to dismissals without prejudice and AFGE has treated it accordingly.

Page 5 of 11


petition for review of an arbitrator’s award regardless of whether discrimination was
raised before the arbitrator, Jones was not predicated on deference to the Board’s
regulations but was instead premised at its core on the plain language of 5 U.S.C.
§7121(d) and 5 U.S.C. § 7702(a)(1). Specifically, the Jones court found that:

There is no statute or regulation that we have found, and none has
been called to our attention, that requires an issue of prohibited
discrimination, such as is involved in this case, to be first raised
before an arbitrator before the board has jurisdiction to consider it
on appeal. On the contrary 5 U.S.C. § 7702 provides that
notwithstanding any other provision of law, an aggrieved
employee may appeal to the board when he alleges that a basis
for the agency action was prohibited discrimination.

Jones, 898 F.2d at 135 (emphasis in original).

Thus, while the Board’s regulations lent support to the court’s decision, it was
section 7702’s “notwithstanding any other provision of law” language that drove it in the
first instance, along with the language in section 7121(d) mandating that “[s]election of
the negotiated grievance procedure in no manner prejudices the right of an aggrieved
employee to request the Merit Systems Protection Board to review the final decision” of
an arbitrator. Consequently, the Board’s proposed change is contrary to Jones and should
be abandoned. Cf Bankers Trust New York Corp. v. U.S., 225 F.3d 1368, 1376 (Fed. Cir.
2000) (Executive agency may not construe a statute through regulation in a manner
inconsistent with a prior definitive court ruling).

Il. Comments Regarding Changes to Part 1209

5 CER. § 1209.2 Jurisdiction.

AFGE opposes the Board’s proposal to limit the issues before the Board when an
appellant chooses to pursue an Individual Right of Action appeal. The proposed rule is
an overly harsh rule that, as the Board admits, reverses longstanding Board law. It also
leaves an appellant with no way to keep a case whole when the appellant chooses to
pursue a claim with the Special Counsel. This makes no sense and, AFGE believes, is
contrary to the statute. Nothing in 5 U.S.C. 7121(g) requires this result, and the Board’s
tule will subvert the will of Congress by discouraging employees from seeking the
assistance of the Special Counsel. The Board should not make this change.

Page 10 of 11


5 C.E.R. § 1201.53 Record of Proceedings.

Subsections (a), (b) and (c) of the Board’s proposed changes to this section appear
to be both redundant and internally inconsistent. For example, the proposed changes are
redundant because, while they clearly distinguish between “recordings” and “transcripts,”
both (a) and (c) state that copies of recordings will be provided without charge. The
proposed changes appear to be internally inconsistent because, for example, proposed
subsection (b) states that a party may request a transcript at that party’s expense or the
Board may direct an agency to purchase and provide a transcript at the agency’s expense,
while proposed subsection (c) states that copies of existing transcripts will be provided
upon request to parties free of charge.

The following language may clarify what AFGE believes to be the intent of this
proposed section:

(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.

(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. Judges do not prepare transcripts.

(c) Copies. Copies of recordings will be provided to parties
without charge upon request. Copies of existing transcripts
will also be provided to parties without charge upon request.
When a transcript has not previously been prepared, any
party may request that the court reporter prepare a full or
partial transcript, at the requesting party's expense;
provided, however, that upon determining that a transcript
would significantly assist in the preparation of a clear,
complete, and timely decision, the judge or the Board may, in
the absence of a request by a party, 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. Requests by parties 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

Page 7 of 11


automatically refiled by the judge as of a certain date; provided, however,
that an appeal must be automatically refiled when dismissal without
prejudice is granted over the objection of the appellant.

(d) Waiver. Requests for the waiver of a refiling deadline based upon good
cause will be liberally construed when the duty to refile an appeal
dismissed without prejudice was placed on the appellant.

5 C.F.R. § 1201.34 Intervenors and amicus curiae.

The Board should include a provision stating that when the Board solicits amicus
curiae briefs on its own initiative, the Board shall accomplish service of the amicus briefs
upon the parties. This is merely intended to reflect the fact that when the Board solicits
briefs, amici may not have the information necessary to serve all of the parties before the
Board.

5 C.F.R. § 1201.41 Judges.

AFGE supports the proposed change to subsection (b) of this section. The
existing language has often appeared in practice to elevate speed of processing over
fairness, impartiality, and strength of reasoning as the primary considerations in appeal
adjudication. The elimination of the existing regulation’s “take all necessary action to
avoid delay” language better reflects the Board’s mission and brings its regulation into
greater harmony with its authorizing statutes.

5 C.F.R. § 1201.43 Sanctions.

The Board should revise the first sentence of this section to read: “The Board or
a judge may impose sanctions upon the parties for good cause shown, and as
necessary to serve the ends of justice.” The addition of “good cause” provides
additional guidance as to when sanctions may be appropriate and reflects that sanctions
should be an unusual measure not to be administered lightly. The addition of “The
Board” simply reflects the reality that the Board itself may also sanction parties when
appropriate.

5 C.F.R § 1201.52 Public Hearings.

This proposed change might be better expressed as two subsections: one
pertaining to the closing of a hearing, and another pertaining to electronic devices. The
Board may also wish to consider changing the second sentence of the proposed change so
that all or part of a hearing may be closed when doing so is in the best interests of a
party, instead of limiting the inquiry to the best interests of an appellant.

Page 6 of 11


conference. And the expansion of an otherwise open discovery period following
reinstatement of an appeal that was dismissed without prejudice further eliminates any
prejudice to the parties that might be caused by a dismissal without prejudice.

5 C.F.R. § 1201.113 Finality of Decision.

The first sentence of this proposed change should likely read, “The initial decision
of the judge will become the Board’s final decision 35 days after issuance.”

5 C.F.R. § 1201.115 Criteria for granting petition or cross petition for review.

AFGE suggests the following change to proposed subsection (e):

Notwithstanding any provision of this part, the Board may
identify, review and decide any issue in a pending appeal.

AFGE believes that this language offers a clearer way to preserve the power currently
exercised under existing section 1201.118, while still maintaining the new distinction
created by proposed section 1201.118, i.e. that reopening is a procedure reserved for an
otherwise final case that is no longer pending before the Board. AFGE’s proposed
language also removes any latent ambiguity in the Board’s proposed change to section
1201.117(a)(1), which appears aimed at creating the same result as section 1201.115(e).

5 C.F.R. § 1201.116 Compliance with orders for interim relief.

AFGE believes that proposed subsection (f) is helpful in reinforcing that the time
for filing an application for prevailing party attorney’s fees does not begin to run until
after the Board’s decision becomes final, as reflected in section 1201.203(d).

5 C.E.R. § 1201.155 Requests for review of arbitrator’s decisions.

AFGE opposes the Board’s proposed change to subsection (b) of this section.
The Board’s proposed change to subsection (b) would limit the Board’s review of mixed
case arbitration awards to circumstances where the employee’s claim of discrimination
generating Board review was raised in the negotiated grievance procedure. The Board’s
proposed change would reverse more than twenty years of settled law with very little
analysis and without providing any justification for the change. It should therefore be
abandoned.

Moreover, the Board’s reliance on Jones v. Dep’t of the Navy, 898 F.2d 133 (Fed.

Cir. 1990), is misplaced. Although that decision partially relied on the plain language of
the Board’s existing regulations to find that the Board must exercise jurisdiction over a

Page 9 of 11


” AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

John Gage J. David Cox, Sr. Augusta Y. Thomas
National President National Secretary-Treasurer National Vice President for
Women and Fair Practices

Ty/MSPB/309221

July 23, 2012

William D. Spencer

Clerk of the Board

Office of Clerk of the Board

U.S. Merit Systems Protection Board
1615 M Street, N.W.

Washington, D.C. 20419

mspb@mspb.gov
(202) 653 — 7130 (fax)

Re: Comments by AFGE Concerning Proposed Changes to MSPB Practices and
Procedures, 77 Fed. Reg. 33663 (June 7, 2012)

Dear Mr. Spencer:

The American Federation of Government Employees, AFL-CIO, (“AFGE”)
hereby submits its comments to the changes proposed by the U.S. Merit Systems
Protection Board (“Board”) to the Board’s adjudicatory regulations. In particular, AFGE
submits it comments to the Board’s proposed changes to 5 C.F.R. Part 1201, Practices
and Procedures, and, to a lesser extent, 5 C.F.R. Part 1209, Practices and Procedures for
Appeals and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing.
Changes suggested by AFGE are shown in bold.

To begin with, AFGE has identified two issues that do not appear to be covered
by the Board’s current or proposed regulations which, AFGE respectfully submits, the
Board should address either now or in the future. The first issue concerns the handling of
personally identifiable information. Although the Board’s regulations make reference to
how pleadings containing sensitive security information or classified information should
be handled, the regulations do not appear to make any provision for the handling of
personally identifiable information. Filings with the Board nonetheless frequently
contain personal information such as an appellant’s social security number, birth date, or
medical records. As the Board is no doubt aware, this type of personally identifiable
information could be used improperly in the event of an unanticipated data loss or data
breach. Consequently, AFGE recommends that the Board consider promulgating a
regulation that would require the redaction of personally identifiable information from

Page | of 11
80 le Street, N.W,, Washington, DC 20001 ¢ (202) 737-8700 ¢ FAX (202) 639-6490 ¢ www.afge.org

&
v


Il. Conclusion

AFGE thanks the Board for allowing it the opportunity to submit these comments.
AFGE believes that the Board’s proposed regulations would benefit from incorporation
of the changes suggested above. Finally, AFGE notes that by submitting these
comments, AFGE does not waive any rights or challenges that it may have, now or in the
future, concerning any aspect of Board’s proposed regulations.

Sincerely,

Assistant Generalounsel

American Federation of Government Employees
80 F Street, N.W.

Washington, D.C. 20001

Page 11 of 11


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. Non-parties may also make
FOIA requests online at https://foia.mspb.gov.

5 C.F.R. § 1201.56 Burden and degree of proof; affirmative defenses.

AFGE is concerned that the Board’s discussion of the varying degrees of proof
placed on an appellant will be confusing to pro se appellants. A simpler way to address
the issue might be for the Board to use language stating that:

(a)(2) Appellant. An appellant bears the burden of proving:

i. Board jurisdiction over an appeal

ii. Timeliness of an appeal

iii. Affirmative defenses

iv. Entitlement to retirement benefits

v. Eligibility for waiver or adjustment of an overpayment

(3) Degree. Whenever a burden of proof falls on the appellant, the
Board will explicitly inform the appellant in writing as to the specific
degree of proof required to meet the applicable burden.

This approach leaves the Board free to provide clearer guidance and citation to applicable
case law in orders that will be served directly on the appellant or her representative. It
also provides for flexibility in the event of changes in the case law.

Section (a)(2)(ii)(B) appears to incorrectly reference paragraph (c) of the existing
regulation as pertaining to affirmative defenses. This citation should likely be to
paragraph (b).

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

The elimination of existing subsection (a)’s initial disclosure requirement makes
sense given that initial disclosures were often rendered unnecessary and unduly
burdensome by the submission of the Agency File.

With regard to time limits, AFGE suggests that the Board address the application
of proposed subsections (d)(1) and (d)(4) to matters refiled following a dismissal without
prejudice. Specifically, AFGE believes that when a matter was dismissed without
prejudice before the time to conduct discovery closed, the time for conducting discovery
should restart beginning on the date that the judge issues an order reinstating the appeal.
Proposed subsection (d)(4) would also be improved by the addition of the word “final”
immediately preceding the phrase “prehearing or close of record conference.” This
approach recognizes that reinstated appeals may be subject to more than one prehearing

Page 8 of 11


this part when the document causing the deadline was served
on the responding party by mail.

5 C.E.R. § 1201.21 Notice of appeal rights.

As discussed in its comments to the changes proposed for section 1209.2, AFGE
opposes the Board overruling through regulation its longstanding precedent concerning
IRA appeal rights.

5 CE.R. § 1201.23 Computation of time.

As discussed above, AFGE believes that the provision adding 5 days to deadlines
arising from mail service would be more appropriately placed in this section. AFGE also
believes that if the Board were to adopt a redaction rule, it would be appropriate to
include language here explaining that the redaction of a pleading is unrelated to its
timeliness.

5 C.F.R. § 1201.24 Content of an appeal; right to hearing.

The Board should refine its proposed language for subsection (d) of this section,
Right to hearing. AFGE believes that the Board’s use of the word “generally” in
subsection (d) injects uncertainty into the subsection without providing clear guidance. It
may also give parties and administrative judges the incorrect impression that an appellant
who establishes Board jurisdiction over a timely filed adverse action appeal does not
necessarily have a right to a hearing. Section 7701(a) of Title V of the United States
Code, which this subsection arises from, states in relevant part that:

(a)An employee, or applicant for employment, may submit an
appeal to the Merit Systems Protection Board from any action
which is appealable to the Board under any law, rule, or
regulation. An appellant shall have the right—

(I)to a hearing for which a transcript will be kept; and

(2)to be represented by an attorney or other representative.

(emphasis added). Section 7701(a)(1) admits of no exception to an appellant’s right to a
hearing for which a transcript will be kept when jurisdiction over a timely filed adverse
action appeal has been established. See generally Manning v. Merit Systems Protection
Bd., 742 F.2d 1424, 1427-28 (Fed. Cir. 1984). Consequently, AFGE recommends that
the Board use the following language for subsection (d):

An appellant has a right to a hearing pursuant to 5 U.S.C.
7701.

Page 4 of 11


may also depend on other factors, e.g. the type of
appointment held by the individual, whether the individual is
veterans’ preference eligible. Accordingly, the laws and
regulations cited below as sources of the Board’s jurisdiction
should be consulted when determining the existence or the
extent of the Board’s jurisdiction over a particular appellate
matter. Matters within the Board’s appellate jurisdiction
include the following:

AFGE also believes that the clarity of paragraph (a)’s list of specific matters
within the Board’s appellate jurisdiction would benefit from the inclusion of additional
sub-paragraphs following each numbered matter. For example, (a)(10) pertains to
“Various Action Involving the Senior Executive Service” and lists the types of cases over
which the Board has jurisdiction. A more readable way to present this information for
laypersons might be as follows:

(10) Actions Involving the Senior Executive Service

6) Removal or suspension of more than 14 days (5 U.S.C.
7511-7514; 5 CFR part 752, subparts E and F); or

(ii) | Reduction-in-force action affecting a career appointee
(5 U.S.C. 3595); or

(iii) Furlough of a career appointee (5 CFR 359.805); and

5 C.F.R. § 1201.4 Date of Service.

AFGE agrees that the definition of “date of service” provided by the existing
regulation is circular, in that it is defined by reference to itself. AFGE also agrees that 5
days should be added to a deadline whenever the deadline is in response to a document
that was served by mail because doing so recognizes the delays inherent in mail service.
However, AFGE questions whether the provision adding 5 days might be more
appropriately placed in section 1201.23, which directly concerns the computation of time,
rather than in subsection (j) of this section. The definitions of “date of service” and “date
of filing” both appear to be aimed at determining when something was done.
“Computation of time,” on the other hand, appears to be aimed at determining when
something is due, making it a more natural fit for a provision that adds time to deadline
calculations.

AFGE also believes that the wording of this section, wherever it is placed, would
be better expressed as follows:

Unless a different deadline is set by the Board or its designee,
five (5) calendar days are added to any filing deadline set by

Page 3 of 11


filings with the Board. For example, the Board could add a new subparagraph (f) to 5
C.F.R. 1201.22 specifying that

Unless otherwise ordered by the Board or consented to by the

individual concerned, any filing with the Board that contains

an individual’s birth date, or an individual’s social security

number, or an individual’s financial or medical account

number, may include only:

(1)The year of the individual’s birth

(2)The last four digits of the individual’s social security
number

(3)The last four digits of the individual’s financial or medical
account number.

Because the purpose of AFGE’s suggestion is solely protective, AFGE also
strongly urges that if the Board adopts a redaction rule, the Board add language to section
1201.23 stating that:

No filing shall be found untimely based solely on a failure to
comply with 5 C.F.R. 1201.22(f) and, upon notice, a
reasonable time shall be granted to correct any deficiency
under that subsection.

The second issue that AFGE recommends the Board address is sealing of the
record. Although the Board presently has the power to seal all or part of the record of an
appeal, that power is not reflected in its regulations. See, e.g., Hoback v. Dep’t of the
Treasury, 86 M.S.P.R. 425, J 12 (2000). Consequently, AFGE suggests that the Board
codify Hoback by adding a new subsection (f) to section 1201.53 as follows:

Upon motion and for good cause shown, the Board or a judge
may seal part or all of the record of an appeal.

AFGE’s comments to specific sections of the proposed regulations follow below.

I. Comments Regarding Changes to Part 1201

5 C.F.R. § 1201.3 Appellate Jurisdiction.

AFGE finds the overall construction of paragraph (a) to be unwieldy. For
example, clearer language for the introduction to paragraph (a) might be as follows:

(a) Generally. The Board’s appellate jurisdiction is limited to
those matters authorized by law, rule or regulation. The
Board’s appellate jurisdiction does not depend solely on the
label or nature of the action or decision appealed from but

Page 2 of 11