Gentlemen:

I offer my comments in response to the 2012 Proposed Rulemaking Notice 

concerning Board practices and procedures.

1200.4 Petition for Rulemaking

This is a welcome addition to the regulations. In the past, rulemaking requests 

under the APA were usually responded to by the Board’s Clerk with a summary 

denial of the petition. The regulatory change will denote more formal Agency 

action, consistent with the intent of the rulemaking provisions of the APA.

To avoid duplicative filings, I suggest that either by regulation or practice, the 

Board make public (through its website) a summary of rulemaking petitions 

received during the year and the responses to those petitions.

The Board may also wish to consider stating in its regulation any judicial review 

right available for the denial of a rulemaking petition.

1201.3 Appellate Jurisdiction

(3) Termination of Probationary Employment

The proposed regulation states that an appeal is not generally available to 

employees in the excepted service. That means nothing to a pro se appellant. 

The proposed regulation should be changed to clearly state when the right is 

available to an excepted service employee rather than stating an exclusion that 

would have to be further researched to determine the scope of the exception to 

the proposed rule.

(9) Negative Suitability Determination

There has been much confusion as to what constitutes an appealable suitability 

determination as opposed to, for example, non-selection for a position of a 

person who is either not qualified nor for the position or not selected because he 

or she is not the best qualified candidate, and to that classification can be added 

individuals who are discharged for performance or misconduct prior to securing 

sufficient service credit for regular appeal rights.

To eliminate some of this confusion, I suggest that the Board change the 

proposed regulation to be more specific as to what is and what is not an 

appealable suitability determination and by whom and how a suitability 

determination is made.

1201.4 General Definitions
(a) Judge

To conform the section with the statute, and to avoid the ambiguity in the word 

“including,” the regulation should be changed to add “any member of the Merit 

Systems Protection Board.” 5 USC 1204(b)(1).

Again, to conform the regulation of statute, this section should be revised to state 

that person’s hearing removal appeals may be considered only by individuals 

“experienced in hearing appeals.” 5 USC 7701(b)(1).

1201.21 Notice of Appeal Rights

The Board needs to define what constitutes a” grievance,” to make clear that the 

reference is to a grievance that is filed under a collective bargaining agreement 

(as opposed to an agency administrative grievance procedure) and that is in 

writing (as opposed to a verbal informal grievance under a negotiated 

procedure). The definition is probably best placed in the Board’s definitional 

section that 1201.4.

The matter of election of remedies is so complicated under 5 USC 7121(g), that, 

rather than waiting to agency’s the task of figuring out the law on a case-by-case 

basis (a particular problem in small agencies having limited numbers of lawyers 

expert in personnel law), the Board should develop in its regulation language 

clearly explaining the election scheme under the statute so that agencies could 

copy those cautionary words into their adverse action appellate rights sections.

Of particular importance is the election of remedies advice to employees 

pertaining to the choice between an Individual Right of Action and otherwise 

appealable action.

The Board’s regulatory interpretation will be given considerable deference by a 

reviewing court under Chevron, U.S.A. v. Natural Resources Defense Council, 

467 U.S. 837, 844 (1984).

It is important that the regulation make clear the distinction between a proposal 

and a final decision in the election scheme. More specifically, the regulation 

should clearly state that an individual should be able to initiate an IRA with OSC 

on a proposal, to obtain the possible advantage of a stay or corrective action or 

settlement, and be able to take a final agency adverse action or performance 

decision directly to the Board in an otherwise appealable action without being 

foreclosed from doing so by earlier resort to OSC on the proposal if the 

individual has not earlier sought relief through OSC as to the decision. The 

distinction in treatment of a proposal and a decision is made in the section of the 

Proposed Regulations, Sec. 1209.2, Example 4. The distinction in the example 

should be stated clearly in 1201.21.
This regulation requires some work to accurately state the law in a way that can 

be readily understood by appellants and agency officials alike. It is not sufficient 

to cast in generalities references to complex elections of remedies, leaving others 

to the task of seeking to research and possibly guess at the meaning of 7121(g), 

with significant potential adverse effect upon the appellants deserving of 

protection from OSC and appellate rights from MSPB.

If no more is done to explain the regulation by MSPB, the likely result will 

simply be that agencies will recite 5 USC 7121(g) in their decision notices, 

leaving it to appellants to determine the meaning of the statute. Given that the 

rate of pro se representation the board exceeds 60%, that is an unacceptable 

approach. What is needed is a comprehensive, plain English regulatory 

expressions from the Board.

1201.22 Filing an Appeal/Response to Appeal

If the appellant is responsible for keeping the agency informed of the change of 

address, the agency needs to inform the appellant of the name, e-mail address, 

physical mailing address, and fax number of the agency official who will be 

designated to receive notice of change of address. The regulation needs to be 

modified to require the agency to provide that information in the proposal notice.

1201.24 Content of the Appeal/Right to Hearing

The Board is placing appellant at a disadvantage through this regulatory change. 

Under the current practice, the appellant can submit to the board with the appeal 

any evidentiary material that the appellant chooses to provide. Once those 

materials are in the record with the appeal, that is where they stay, unless the 

agency or the judge moves to strike some of the materials as having no relevance 

to the case (a rare event). The agency response to the appeal may include 

materials that are directly pertinent to the appeal but it may not necessarily 

include materials that the appellant thinks are probative. Under the ordinary 

processes of prehearing preparation, the additional material that the appellant 

wishes to have in the record, if not earlier supplied in the appeal, is provided 

through listed exhibits in the prehearing submission. The agency then has the 

right to object to those exhibits, either during the prehearing conference or 

during hearing, and there is at least the possibility that a judge will exclude some 

of those exhibits based on the judge’s view of the case. Although it is certainly 

possible for the appellant to later argue in a PFR that exclusion of the exhibits 

was improper, the judge is given a lot of discretion under Board law with respect 

to admission of evidence, and it takes a fair amount of time and argument to 

overcome a judge’s ruling with respect to exhibit that was excluded during the 

prehearing or hearing processes. None of that time or effort has to be expended if 

the material automatically goes into the record as part of the appeal in the form 

of attachments.
The agency has a right to submit whatever it wants as part of the response to the 

appeal. Although, again, it is true that someone could move to strike materials 

submitted by the agency as part of the response the appeal, that is also a rare 

event. Agency frequently submit as part of their responses to appeals 

information, including exhibits and sworn declarations, that were not provided in 

the evidentiary file submitted to the appellant during the reply process.

To avoid placing appellants at an evidentiary disadvantage by precluding them 

from submitting additional materials with her appeal, the current practice should 

be continued. If it is abused, the judge or the other party may object to the 

surplusage submitted by the appellant.

At least iff the appellants are to be precluded from submitting materials other 

than an SF-50 and a decision notice with their appeals, then in like manner 

agencies should be prevented, through clear regulatory language, from 

submitting with an appeal response any document that was not earlier furnished 

to the appellant with the adverse action or performance–based case proposal.

1201.28 Case Suspension Procedures

The regulatory revision removes some of the ambiguity as to the grounds for a 

case suspension.

The regulation should be revised to state that if both parties desire suspension of 

proceedings, that the suspension will be granted absent good cause shown, and 

that ordinarily good cause would not be predicated upon the delay in the 

proceedings necessitated by a suspension.

Judges should understand that they serve the interests of the parties. Judges need 

to ensure that parties can engage in mutual and effective cooperative efforts to 

manage the litigation process.

1201.29 Dismissal without Prejudice

Should cases DWOP’s be automatically refiled in all cases? My preference is 

that occur. The Board has not offered statistics in its proposed rulemaking 

notice stating how many cases are DWOP’d and not refiled. Assuming the 

number is significant, e.g., at the magnitude of 20% or more, a liberal refiling 

rule would probably avoid most unintentional defaults. However, there are 

certain cases that should be automatically refiled so there is no possibility of an 

unintended default. Included in that category would be any retirement appeal.

Further, speaking of retirement appeals, to avoid the now unpredictable course of 

cases in which an appeal is timely filed from an OPM reconsideration decision, 

followed by OPM vacating the reconsideration determination and seeking a 

mootness or jurisdictional dismissal, further followed by endless waiting until 
OPM gets around to redetermining the case, it is suggested that whenever OPM 

seeks to rescind a redetermination decision that the DWOP process be used and 

that the case be automatically refiled, subject to earlier proof to the Board that 

the requested benefit has been granted. OPM should not able to determine at its 

pleasure either Board jurisdiction or the time in which the appellant’s claim can 

be decided.

1201.31 Representatives

Disqualification of a representative is a rare occurrence, but when it occurs, it 

can be a major hardship for the appellant who has limited or no funds to find 

substitute counsel who necessarily requires payment to duplicate the time earlier 

invested into the case be the disqualified attorney. For that reason, it should be 

the appellant’s option to obtain an interlocutory appeal of a disqualification since 

the effect of the disqualification cannot readily be obtained through a PFR, 

except through the most indirect of means, e.g., a counsel fee petition for a 

prevailing appellant which will be contested, of course, by the agency seeking to 

avoid payment for that portion of the fees incurred by the disqualified counsel.

1201.33 Federal Witnesses

This regulation carries forward one of the problems in the current third-party 

discovery processes: the need to involve the judge to get a third-party agency to 

cooperate in discovery. A nonparty agency or federal corporation should provide 

witnesses upon a notice of deposition rather than when a judge orders production 

of the witness. If the nonparty seeks to avoid that burden, it can object to the 

deposition notice and test the necessity through the moving party’s motion to 

compel.

Additionally, the regulation is unclear in that it calls for agencies or federal 

corporations to make personnel available to furnish sworn statements. It is not 

clear under Board practice how people are produced, other than through 

depositions, to furnish sworn statements. There are no letters rogatory in Board 

practice. This section should be dropped or clarified.

1201.34 Intervenors; amicus

Although it should be obvious, the request for amicus participation should be 

served upon the parties, assuming they are known to the amicus. The parties 

should have the opportunity to respond to the request. Amicus participation may 

increase the expense to represented parties, who then may have to respond to 

amicus submissions, so the parties need to know of the request for participation 

and be able to state their opposition to or support for amicus participation.

1201.43 Sanctions
Since the right to a hearing is statutory, that right should be denied only for 

compelling reasons. If the hearing is terminated by reason of the conduct of 

counsel, the appellant should be permitted to proceed with the hearing by himself 

or herself, or obtain substituted counsel, as in the case of exclusion of a 

representative.

1201.52 Public Hearings

Concerning cell phones, judges have them and may use them during 

hearings. The same is true as to counsel, who may wish to check or send 

emails. Some of those emails may pertain to the case, e.g., contain pdfs that can 

be read only the cell phone. The use of cell phones to make or receive calls 

during a hearing should be reasonably controlled, not denied.

1201.53 Record of proceedings

Transcripts required from agencies—the Board already obtains transcripts in 

some cases without cost when agencies obtain the transcripts at their expense and 

the contract stenographer provides a copy to the Board. In those cases, the 

appellants should receive a copy too, and the copy should be provided or offered 

without request from the appellant, since the appellant will often not otherwise 

know that the agency has bought a transcript, a copy of which is automatically 

filed with the Board. But as to requiring agencies to pay for transcripts when 

they would not otherwise purchase them, I see no statutory authorization for the 

Board to shift that expense. In the past if the Board needed a transcript, it 

bought one itself. EEO cases are different, because the EEO case, even at the 

level of EEOC, is considered an agency adjudication from start to finish, i.e., the 

hearing is an extension of the agency investigation. Before requiring agencies to 

undertake an expense that 5 USC 7701 does not directly assess to agencies, it 

would be reasonable to obtain an opinion from the Comptroller General and 

avoid the problem of multiple agencies going to the Comptroller for the same 

type of opinion.

1201.56 Burdens of Proof

It is suggested that the phrase “jurisdictional hearing” be substituted with the 

word “hearing,” to avoid any suggestion that a hearing with respect to a 

jurisdictional element confers any fewer rights with respect to discovery and 

other elements of MSPB due process in a hearing on any other matter, e.g., the 

merits of an adverse action.

1201.58 Closing the Record

The regulation should be modified to require judges to explain in their 

acknowledgment orders and other orders that they issue the relationship between 

the timing of initiation and closing of discovery and the closing of the record on 
a particular issue, e.g., jurisdiction in a constructive adverse action or timeliness 

of an appeal. Too often acknowledgment orders include conflicting provisions 

that theoretically allow for discovery but then call for the record to close on 

issues of jurisdiction or timeliness before discovery can be commenced and 

completed.

1201.71 Purpose of Discovery

Timing of Motions to Compel Discovery: the Board requires the parties to confer 

prior to the filing of a motion to compel discovery, in an effort to resolve 

differences without excessive involvement by the judge. But only 10 days are 

allowed to file a motion to compel, and with intervening weekends, that is often 

not enough time to arrange for a conference with opposing counsel and review 

and resolve differences with respect to discovery requests to which objections 

have been lodged. The regulation places the moving party in a position of not 

only having to contact opposing counsel concerning objections and to attempt 

very quickly to resolve those objections, but to file a motion for an extension of 

time in which to file a motion to compel discovery in the event that resolution of 

differences cannot be accomplished within 10 days.

There is no good reason that requires a motion to compel the be filed within 10 

days. Realistically, what should be required is that the motion be filed within a 

reasonable time prior to the prehearing conference. If the 10 day limitation must 

stay in the regulation, then the regulation should authorize the parties to agree 

upon a longer period of time in which to file the motion compel without the 

necessity of filing a motion with the board in order to accomplish the same 

objective. In other words, if the Board wants the parties to work informally to 

resolve their problems, the Board should allow the parties informally to avoid 

unnecessary pleadings through agreements to extend the time to file a motion to 

compel discovery. This is the normal practice in courts.

1201.114 Petition for Review

Reply to response to PFR: it is difficult to assess the value of a reply pleading 

when balanced against the additional delay that it will entail and considering the 

likelihood of a fair number of motions to strike the reply because it allegedly 

includes new matter. I presume that OAC has made a determination that a reply 

pleading would aid in the adjudication process. However, since the Board for 

many years has rejected the use of reply pleadings, I would suggest that the use 

of replies be employed on a trial basis rather than being ensconced in the Board 

regulations as a procedure that, once introduced, is going to be difficult to 

change if it proves to be less productive than expected.

Length of PFR: the regulation does not state whether the pleading is to be single 

or double spaced. Nor does the regulation explain exactly how one will 

determine the length of electronic filings, since I presume that the E filing 
system does not properly format materials in terms of type size or margins or 

page numbers, which would mean that one would not know whether the pleading 

was excessive in length until after it had been completed and printed out prior to 

finalization on the E filing system.

I would suggest an alternative, which would be a word count. The Federal 

Circuit allows for briefs in 13 point type, inch margins top and bottom left and 

right, doublespaced, with a word count of a maximum of 14,000 words for 

principal brief and half that for a reply brief. It might be a lot easier to utilize a 

word count and provide a utility in the filing system that would provide the word 

count upon request, similar to a word processor.

Extensions of time to file: When read together, the provision on extension of 

time and late filings seem to provide that an extension request made prior to the 

filing deadline serves as an extension without a formal ruling by the Board, at 

least until such a formal ruling is made. This is the practice in the Federal Circuit 

when extensions are requested at least seven days prior to the filing deadline for 

a brief. I would suggest that the automatic extension created by the filing of an 

extension request be made explicit in the paragraph on “Extension of time to 

file.”

1201.115 Criteria for PFR

I would modify (c) to change “The judge’s rulings” to “the judge’s orders and 

rulings” to encompass the situation where the judge issues an inappropriate or 

deficient acknowledgment order, order to show cause, or prehearing order, 

thereby failing to advise a party on a burden of proof or requirement pertaining 

to jurisdiction or timeliness of an appeal.

1201.116 Interim Relief

This section is not completely clear. Do you mean to give the appellant a 

discretionary opportunity to request dismissal of an agency PFR for lack of 

proper interim relief under (d) and to provide another opportunity to challenge 

the completeness of interim relief under (g) in the event the agency PFR is 

granted?

1201.182 Petition for enforcement

(a) Very few agencies inform the appellant when they believe that 

compliance is complete. Accordingly, the time limit for filing an enforcement 

petition will rarely be triggered by the issuance of a notice of compliance by the 

agency. That leaves the appellant in the position of “promptly” filing an 

enforcement petition. The time for filing the enforcement petition should be tied 

to the time of the required agency compliance notice, but Sec. 1201.181 only 

requires the agency to “promptly” informed the appellant of compliance.
There is too much use of the subjective term “promptly.” It is suggested that the 

Board provide a deadline for an agency to issue a compliance notice. If the 

compliance notice is issued, then provide the appellant 30 days to file an 

enforcement petition. If the agency does not file a compliance notice, give the 

appellant a reasonable period of time to file his or her petition after such notice 

should have been filed by the agency.

To make agencies more aware of their obligation to notify the appellant of 

compliance, require agencies to file their notifications of compliance with the 

Board.

1201.83 Procedures for processing petitions for enforcement

(5) Obviously, a copy of the initial decision should be served not only on the 

responsible agency official, but everyone else was already on the certificate of 

service. But for clarity, the regulation should probably be changed so as to make 

the intent clear.

1208.22 Equitable Tolling

By providing examples of circumstances that could support equitable tolling, you 

may be limiting the circumstances that will be described by appellants. I would 

change the language from “examples include” to “examples include, but are not 

limited to.”

1209.5 Time of Filing

Same comment on equitable tolling as in Sec. 1208.22 comment, above.

Peter Broida