Vol. 77 Friday, 

No. 198 October 12, 2012 

Part III 

Merit Systems Protection Board 

5 CFR Parts 1200, 1201, 1203, et al. 

Practices and Procedures; Final Rule 


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62350 Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Rules and Regulations 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1200, 1201, 1203, 1208, 

and 1209 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board), following 

an internal review of MSPB regulations, 

publication of a proposed rule, and 

consideration of comments received in 

response to the proposed rule, hereby 

amends its rules of practice and 

procedure in order to improve and 

update the MSPB’s adjudicatory 

processes. 

DATES: Effective November 13, 2012. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

(202) 653–7200, fax: (202) 653–7130 or 

email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: On June 7, 

2012, the Merit Systems Protection 

Board (MSPB or Board) proposed 

numerous amendments to its 

regulations. 77 FR 33663. In response to 

publication of this proposed rule, the 

MSPB received 105 pages of comments 

from 25 commenters. The comments 

received by the MSPB are available for 

review by the public at www.mspb.gov/ 

regulatoryreview/index.htm. 

Comments and Summary of Changes to 

the Proposed Rule 

Set forth below is a short summary of 

the changes proposed by the MSPB, a 

discussion of the comments addressing 

the proposed rule, and a summary of the 

changes the MSPB is making to the 

proposed rule. Readers desiring a more 

detailed summary of the amendments 

proposed by the MSPB should consult 

the proposed rule at 77 FR 33663. 

This Final Rule will become effective 

30 days after publication in the Federal 

Register. The MSPB is aware that 

changes to its adjudicatory procedures 

may pose special problems in cases that 

are pending on the date this Final Rule 

takes effect. In any such case, judges 

have authority under 1201.12 to waive 

a regulation for good cause, except 

where a statute requires application of 

the regulation. 

Section 1200.4 Petition for 

Rulemaking 

The MSPB proposed adding this new 

regulation to set forth procedures for 

filing petitions for rulemaking under 5 

U.S.C. 553(e). Numerous commenters 

objected to this proposed regulation on 

the grounds that the MSPB should 

always employ notice and comment 

rulemaking due to its unique mission as 

an adjudicative body and the regulation 

could be read as authorizing the MSPB 

to publish a direct final rule not 

authorized under the Administrative 

Procedure Act (APA). However, the 

APA does not require notice and 

comment in all instances of agency 

rulemaking. 5 U.S.C. 553(b). While the 

MSPB does have a unique mission, 

publication of a direct final rule remains 

an important tool to quickly implement 

minor technical amendments. However, 

in an effort to address the concerns 

raised by these commenters, the MSPB 

has added a requirement to the 

regulation that final rules will be issued 

‘‘consistent with the Administrative 

Procedure Act.’’ 

A commenter suggested that the 

MSPB, either by regulation or practice, 

should post petitions for rulemaking 

and responses thereto on the MSPB’s 

Web site. The MSPB agrees that this 

proposal has merit and will undertake 

in the future to post such information 

on its Web site. A commenter suggested 

that the regulation include advice 

concerning a petitioner’s right to 

judicial review. The MSPB has chosen 

not to amend the regulation as 

requested. Finally, a commenter 

suggested that the MSPB include a 

procedure for seeking reconsideration of 

a denial of a petition for rulemaking. 

The regulation presently gives each 

petitioner a full opportunity to present 

his or her petition to the Board. No 

further procedures for reconsideration 

will be included in the final rule. 

Section 1201.3 Appellate Jurisdiction 

The amendments proposed by the 

MSPB explained that this regulation is 

not a source of MSPB jurisdiction and 

that jurisdiction depends on the nature 

of the employment or position held by 

the employee as well as the nature of 

the action taken. The proposed 

regulation also revised the listing of 

appealable actions within the MSPB’s 

appellate jurisdiction. 

A commenter suggested several 

editorial changes to paragraph (a) and, 

in response, the MSPB has amended 

this regulation. A commenter pointed 

out that the MSPB has jurisdiction over 

‘‘suitability actions,’’ not ‘‘suitability 

determinations.’’ The MSPB has 

amended the proposed regulation to 

address this comment. 

A commenter recommended that the 

regulation should be amended to 

include more specific information 

concerning what constitutes a suitability 

determination and how a suitability 

determination is made. In response, the 

MSPB has included changes to 

paragraph (a)(9). 

A commenter suggested that the 

statement in paragraph (a)(3) of the 

proposed rule that appeals of 

probationary terminations ‘‘are not 

generally available to employees in the 

excepted service’’ is insufficient for pro 

se appellants. The commenter further 

suggested that the regulation should be 

revised to clearly identify when an 

excepted service employee has the right 

to appeal such an action by listing any 

exceptions to the general rule. In 

response, the MSPB notes that one such 

exception to the general rule exists for 

Veterans Readjustment Act 

appointments. While appointments 

under this authority are excepted 

service appointments, because they are 

positions that would otherwise be in the 

competitive service, many competitive 

service rules apply to them, including 

those at 5 CFR part 315, subpart H. See 

McCrary v. Department of the Army, 103 

M.S.P.R. 266, ¶ 11 (2006); 5 CFR 

307.103–.104. The MSPB therefore 

believes the use of the term ‘‘generally’’ 

is justified. In addition, given the 

possibility that the MSPB might 

overlook an exception that ought to be 

included in such a list or that the list 

could become outdated at some future 

point, the MSPB is satisfied that the use 

of the term ‘‘generally’’ is appropriate. 

Finally, MSPB administrative judges are 

required to identify jurisdictional 

elements to the parties after an appeal 

is filed and, therefore, there is no need 

to amend this regulation as requested. 

The MSPB has also made several 

minor changes in the proposed rule. 

First, in paragraph (a)(10), we changed 

the citation to authority for this grant of 

jurisdiction. There is no longer any 

Subpart E to 5 CFR Part 752. The correct 

sources of jurisdiction are 5 U.S.C. 

7543(d) and 5 CFR 752.605. Second, in 

paragraph (a)(11), we pluralized ‘‘right’’ 

in the first grant of jurisdiction and 

broke out the particular grants of 

jurisdiction into separate paragraphs 

(a)(11)(i) through (a)(11)(vii). 

Section 1201.4 General Definitions 

The MSPB proposed revising 

subsection (a) to eliminate the phrase 

‘‘attorney-examiner’’ and revising 

subsection (j) due to a concern that the 

term ‘‘date of service’’ was unclear. 

In response to a concern expressed by 

a commenter that the term ‘‘grievance’’ 

should be defined, the MSPB has added 

a new paragraph (o) defining a 

‘‘grievance’’ as ‘‘[a] complaint by an 

employee or labor organization under a 

negotiated grievance procedure covered 


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by 5 U.S.C. 7121.’’ While this definition 

was not included in this regulation in 

the proposed rule, the MSPB believes it 

is appropriate to include this new 

material here because the MSPB did 

propose to amend 1201.153 to substitute 

the term ‘‘under a negotiated grievance 

procedure’’ for the word ‘‘grievance.’’ 

The new definition of ‘‘grievance’’ is 

intended simply to recognize the need 

to clarify the meaning of the term 

‘‘grievance’’ throughout the MSPB’s 

regulations. 

A commenter objected to the current 

definition of ‘‘date of service’’ in 

paragraph (j) as circular and suggested 

that it should take the form of a 

narrative definition without reference to 

‘‘date of filing.’’ The MSPB rejects this 

suggestion as the date of service and 

date of filing are intended to be 

identical. 

A commenter suggested that the 

MSPB delete ‘‘calendar’’ as a 

description of days in paragraph (j) 

because days is already a defined term 

in paragraph (h). The final rule adopts 

this suggestion. 

Several commenters suggested that 

language authorizing that 5 extra days 

will be provided when a pleading is 

filed by mail should be moved to 

1201.23 or that a reference to 1201.23 

should be added to the proposed 

language in paragraph (j). A commenter 

also suggested that the MSPB amend the 

language of paragraph (j). In response to 

these suggestions, the MSPB has 

amended the language of paragraph (j) 

and moved the language providing 5 

extra days when a pleading is filed by 

mail to 1201.23. 

A commenter expressed a concern 

that the MSPB’s definition of ‘‘date of 

service’’ is flawed because it fails to 

recognize that irradiation of mail delays 

receipt of mail by Federal agencies. The 

MSPB is aware that when an appellant 

files via regular mail, and the agency 

representative is located in Washington, 

DC, the pleading will go to an 

irradiation center and it may take more 

than 5 days for the agency to receive it. 

While this is a valid concern, the MSPB 

does not think it justified a special 

provision in the regulations. If 

irradiation has caused a significant 

delay that adversely impacts an agency’s 

opportunity to submit a responsive 

pleading, the agency can ask for 

additional time or seek to excuse a late 

response, and there is no reason to 

believe our judges will not deal with 

such matters appropriately. 

A commenter suggested that the 

MSPB amend the definition of ‘‘judge’’ 

in paragraph (a) to add ‘‘any member of 

the Merit Systems Protection Board’’ to 

the listing of persons who can be a judge 

and further amend the regulation to 

make clear that only individuals 

‘‘experienced in hearing appeals’’ may 

hear an appeal of a removal action. We 

have revised the regulation to include 

Members of the Board in the definition 

of the word ‘‘judge.’’ The MSPB is 

cognizant of the requirement in 5 U.S.C. 

7701(b)(1) that a removal case shall be 

heard by the Board, an employee 

experienced in hearing appeals, or an 

administrative law judge. The MSPB 

ensures that cases are assigned to 

experienced judges in accordance with 

the statutory requirement. 

Section 1201.14 Electronic Filing 

Procedures 

The MSPB proposed adding new 

language to reflect current MSPB policy 

and procedures regarding Sensitive 

Security Information (SSI) and classified 

information. The MSPB proposed to 

revise paragraph (m) to make the 

regulation consistent with the intent 

expressed by the Board when it 

originally published this provision at 73 

FR 10127, 10128 (2008). Finally, 

additional language was added to 

provide that amici are not permitted to 

e-file. 

A commenter suggested that the 

MSPB should change the restriction on 

SSI so that it applies only when a 

document has been marked by the 

agency as containing SSI. The MSPB 

believes the current language 

concerning filing of SSI and classified 

information is more appropriate in so 

far as it contemplates additional 

scenarios in which a party other than 

the agency submits a pleading 

containing information that it knew or 

should have known contains SSI. A 

commenter objected to the MSPB’s 

restrictions on filing pleadings 

containing SSI as overly broad. 

However, these restrictions are 

compelled by the fact that SSI and 

classified information require security 

beyond that available in the MSPB efiling system. A commenter questioned 

the continued exclusion of class appealrelated filings and requests to appear as 

amici from the MSPB’s e-appeal system. 

As the MSPB noted in the proposed 

rule, we considered the option of 

reconfiguring e-Appeal Online to 

address Privacy Act concerns and allow 

amici to file using e-Appeal Online but 

determined that the cost of such a 

systemic change outweighed the benefit 

of e-filing by amici. A commenter 

observed that the MSPB should adjust 

its e-filing system to account for 

regional time differences rather than 

address this issue in a regulation. While 

the e-filing system of the Federal 

judiciary may accommodate such 

difference, the MSPB remains 

concerned that such a change to its efiling system risks compromising the 

reliability and integrity of its filing 

process. 

Section 1201.21 Notice of Appeal 

Rights 

The MSPB proposed to change 

longstanding jurisprudence concerning 

allegations of reprisal for 

whistleblowing under 5 U.S.C. 

2302(b)(8) where an employee has been 

subjected to an otherwise appealable 

action. Subsection (g)(3) of 5 U.S.C. 

7121 provides that an individual who 

has been subjected to an otherwise 

appealable action and who alleges 

retaliation for whistleblowing must elect 

one of 3 actions: (A) an appeal to the 

Board under 5 U.S.C. 7701; (B) a 

negotiated grievance under 5 U.S.C. 

7121(d); or (C) corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12, i.e., a complaint filed with OSC (5 

U.S.C. 1214), which can be followed by 

an Individual Right of Action appeal 

filed with the Board (5 U.S.C. 1221). 

Subsection (g)(4) provides that an 

election is deemed to have been made 

based on which of the 3 actions the 

individual files first. The proposed 

regulation would require agencies to 

fully notify employees of their rights in 

these situations so that they can make 

an informed choice among the available 

3 options. Paragraph (e) was added to 

require notice in mixed cases. 

A commenter suggested that the 

MSPB should define what constitutes a 

grievance. In response to this comment, 

the MSPB has added a new definition in 

a new paragraph (o) in 1201.4. 

Several commenters suggested that 

the MSPB clarify its proposed regulation 

and/or provide ‘‘model’’ language for 

agencies to use with respect to the 

Board’s requirements in paragraphs (d) 

and (e) relating to elections between 

different forums that employees are 

required to make with respect to claims 

of retaliation for protected 

whistleblowing disclosures or claims of 

unlawful discrimination. The Board 

does not believe that detailed model 

language is required, as the regulations 

at 5 CFR 1209.2 and 29 CFR 1614.301 

and .302 provide adequate guidance. 

A commenter pointed out that while 

the proposed regulation would require 

agencies to give notice of rights under 

5 U.S.C. 7121(g), it failed to require 

notice of rights under 5 U.S.C. 

7121(c)(1) and (d). The MSPB believes 

these concerns are already addressed in 

paragraphs (d) and (e) of the regulation. 

We revised paragraph (e) to add the 

phrase ‘‘or to grieve allegations of 

unlawful discrimination’’ and added 


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references to 5 U.S.C. 7121(d) and 29 

CFR 1614.301 to clarify the notice that 

must be provided regarding 

discrimination claims. 

A commenter urged the MSPB to 

make clear that an appellant may make 

separate elections of remedies for a 

proposed decision and a final decision. 

This issue is presently addressed in 

Example 4 in 1209.2. 

Commenters also were concerned that 

increasing the amount of information 

already included in notices was 

unreasonable and that the exact 

parameters of the notice required may 

not be clear at the time an action is 

taken against a probationary employee. 

The complexity of notices is a product 

of the complexity of the law governing 

Federal employees. With regard to 

notices given to probationary 

employees, when an agency takes an 

action against a probationary employee, 

it must inform the employee of the 

circumstances in which such 

terminations are appealable to the 

Board. 

The MSPB has made two other 

amendments to this regulation. We 

revised paragraph (e) because it only 

referred to elections between the MSPB 

and the EEOC under 29 CFR 1614.302. 

This paragraph now also addresses 

election of the negotiated grievance 

process for claims of prohibited 

discrimination. In response to other 

comments regarding this regulation, the 

MSPB also added a new paragraph (f) 

requiring agency decision notices to 

include the name or title and contact 

information for the agency official to 

whom the Board should send the 

Acknowledgment Order and copy of the 

appeal. This minor change will help 

ensure proper service of the MSPB’s 

Acknowledgment Order, thereby 

expediting the processing of appeals. 

Readers also should review the 

discussion of comments under 5 CFR 

1209.2. 

Section 1201.22 Filing an Appeal and 

Responses to Appeals 

The MSPB proposed to revise this 

regulation to include a new section 

stating the MSPB’s general rule about 

constructive receipt and included 

several illustrative examples. 

A commenter objected to the use of 

the terms ‘‘relative’’ and ‘‘of suitable age 

and discretion’’ as overly vague. The 

MSPB does not use the word ‘‘relative’’ 

in this regulation. The use of the term 

‘‘persons of suitable age and discretion’’ 

is taken from Rules 4 and 5 of the 

Federal Rules of Civil Procedure. 

A commenter asked the MSPB to 

modify the regulation to clarify that, in 

cases where the appellant and his or her 

representative receive a document on 

different dates, the date of the 

representative’s receipt should control. 

The MSPB has elected not to make this 

change as the present rule is adequate 

and this proposal will introduce further 

complexity. 

A commenter objected to the use of 

examples because such examples might 

be read as determinative in 

circumstances where they might be 

misleading. The MSPB disagrees and 

views these examples as an effective 

means to explain the rule to pro se 

litigants. However, the MSPB will note 

in the examples that the cited 

circumstances in each example ‘‘may’’ 

establish the contested issue. 

A commenter proposed that the MSPB 

require an agency to provide contact 

information for the agency official 

designated to receive notice of a change 

in an appellant’s address. The MSPB 

has added a new paragraph (f) in 

1201.21 that will require the agency to 

supply contact information for a 

responsible agency official in all 

decision notices. 

Section 1201.23 Computation of Time 

The MSPB proposed to amend this 

regulation so that it will apply to all 

situations in which a deadline for action 

is set forth in the MSPB’s regulations or 

by a judge’s order, including discovery 

requests and responses between the 

parties. 

A commenter requested the MSPB to 

incorporate constructive receipt 

language from 1201.22 in this 

regulation. The MSPB will not 

implement this suggestion because 

1201.23 concerns solely with how time 

is computed, not when receipt is 

effective. A commenter recommended a 

change in wording to shorten the 

description of the 5 extra days provided 

when a pleading is filed by mail. The 

commenter also recommended moving 

this language from 1201.4 to 1201.23. 

The MSPB agrees with these 

suggestions. The final rule contains a 

modified version of this commenter’s 

suggested language. The MSPB deleted 

the word ‘‘calendar’’ as a description of 

days because it is already a defined term 

in paragraph (h) of 1201.4. 

Section 1201.24 Content of an Appeal; 

Right to Hearing 

The MSPB proposed to change the 

scope of requested attachments to an 

initial appeal from ‘‘any relevant 

documents’’ to a request for the 

proposal notice, decision notice, and for 

the SF–50 if available. The MSPB also 

proposed to amend the definition of 

‘‘right to hearing’’ in paragraph (d) to 

state that, ‘‘in an appeal under 5 U.S.C. 

7701, an appellant generally has a right 

to a hearing on the merits if the appeal 

has been timely filed and the Board has 

jurisdiction over the appeal.’’ 

A commenter objected to the 

limitations on the amount of material an 

appellant may submit with an appeal on 

the grounds that this change will 

increase the time it takes an agency to 

assess the case and provide an 

appropriate response. While the 

proposed amendment might limit the 

initial receipt of relevant material in 

some cases, in many others it will serve 

to curtail the submission of extraneous 

material, while ensuring that the MSPB 

receives information necessary to 

identify the nature of an appellant’s 

claims. 

A commenter agreed that evidence on 

jurisdiction should be filed in response 

to Board orders but only if the Board 

would hold in abeyance the agency’s 

narrative response to the appeal until 

the question of jurisdiction is resolved. 

The MSPB will not make any changes 

in response to this suggestion since this 

issue can be addressed on a case-by-case 

basis in acknowledgment of other orders 

issued by an administrative judge. 

A commenter objected to the 

proposed amendment on the grounds 

that it disadvantages appellants and 

precludes the appellant from submitting 

additional information that may be 

relevant. The MSPB disagrees with this 

comment because the amendment to 

this regulation concerns only the timing 

of submissions by an appellant and does 

not ultimately limit the scope of what 

an appellant may submit. 

A commenter suggested that in 

subparagraph (a)(7), the MSPB should 

require that appellants in Veterans 

Employment Opportunities Act (VEOA) 

and Individual Right of Action (IRA) 

cases submit relevant documents, as 

these documents are almost always 

exclusively in the appellant’s 

possession. The MSPB believes that 

under current practice jurisdictional 

and show-cause orders adequately 

address requirements for appellants to 

show exhaustion in VEOA and IRA 

appeals. 

A commenter suggested that the 

MSPB should develop a mechanism for 

summary judgment and amend 

paragraph (d) to add information 

concerning an appellant’s right to a 

hearing where summary judgment is 

granted. The Court of Appeals for the 

Federal Circuit has found that the MSPB 

lacks authority to order summary 

judgment. Crispin v. Department of 

Commerce, 732 F.2d 919, 924 (Fed. Cir. 

1984). Therefore, we cannot make the 

suggested changes. 


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A commenter objected to the word 

‘‘generally’’ in paragraph (d) since 5 

U.S.C. 7701 includes a right to a 

hearing. The MSPB has removed the 

reference to 5 U.S.C. 7701 from this 

regulation because there are other 

appeals that lack a right to a hearing. 

Section 1201.28 Case Suspension 

Procedures 

The MSPB proposed to overhaul its 

case suspension procedures to allow for 

more than a single 30-day suspension 

period, eliminate current restrictions on 

when a request must be filed, and 

remove separate paragraphs for 

unilateral requests and joint requests. 

A commenter suggested that the 

MSPB should grant its administrative 

judges the power to initially suspend 

case processing for up to 60 days 

instead of 30 in order to facilitate 

settlement. The MSPB believes that 

further expansion of the initial 

suspension period to 60 days is 

unwarranted because the proposed rule 

ultimately allows for suspension up to 

60 days and allowing an initial 

suspension period of 60 days could 

negatively affect the time it takes to 

issue a decision in an initial appeal. 

However, in light of this comment, and 

another comment seeking to amend the 

regulation to suspend a case referred to 

the MSPB’s Mediation Appeals Program 

(MAP), the MSPB has added a new 

paragraph (d) suspending the processing 

of an appeal that is accepted into MAP. 

This amendment reflects the MSPB’s 

current practice. 

Several commenters suggested that 

suspension sought jointly by the parties 

should be granted automatically. The 

MSPB disagrees and believes that its 

judges need to retain control of case 

processing and will exercise suitable 

discretion in acting upon jointly filed 

suspension requests. 

A commenter asked the MSPB to 

consider amending the regulation to 

specify that adjudication of a motion to 

compel discovery does not require 

termination of the suspension period. 

The regulation states that a judge may 

terminate the suspension period when 

the parties request the judge’s assistance 

and the judge’s involvement is likely to 

be extensive but does not require 

termination. We believe that leaving 

such matters to the judge’s discretion 

preserves the maximum flexibility for 

efficient and effective case processing. 

Section 1201.29 Dismissal Without 

Prejudice 

The MSPB proposed adding this new 

regulation that codified existing case 

law on the subject of dismissals without 

prejudice. 

A commenter suggested that there was 

a typographical error in paragraph (a) 

and that the correct reference should be 

to 1201.22, not 1201.12. The reference 

to 1201.12 was intentional because we 

wanted to allow for certain exceptions 

where the Board’s reviewing court has 

held that the MSPB should not specify 

a date certain for refiling. The MSPB has 

modified paragraph (c) to specify the 

exception. 

A commenter suggested that the 

MSPB should rewrite paragraph (c) to 

provide that a waiver of a late refiling 

will be granted where an appellant 

establishes good cause for the untimely 

filing. The MSPB believes that requiring 

judges to liberally construe such 

requests is more appropriate. See 5 CFR 

1201.29(d). 

A commenter suggested that the 

MSPB revise the regulation to require 

that a judge notify the parties and give 

them an opportunity to object before 

dismissing an appeal without prejudice. 

While the MSPB agrees with this 

suggestion in principle, we remain 

convinced that the current provision 

must be retained in order to allow a 

judge to dismiss a case without 

prejudice sua sponte in exceptional 

circumstances, such as when a 

hurricane closes a regional office for an 

extended period. 

A commenter recommended allowing 

the judge to set the refiling deadline 

based on an applicable triggering event 

instead of a date certain. Board case law 

does not allow judges to set the refiling 

date based solely on a subsequent 

triggering event, without also providing 

an alternate date certain. 

A commenter recommended requiring 

that judges set a refiling date within 6 

months of the order dismissing the 

appeal and that the MSPB mandate that 

an appeal may not be dismissed without 

prejudice for more than two 6-month 

periods. Administrative judges are in 

the best position to set a refiling date. 

Based upon experience, the MSPB 

believes that a 12-month period may not 

be sufficient in all circumstances. 

A commenter expressed a preference 

for the automatic refiling of all cases 

dismissed without prejudice, especially 

retirement cases. Automatic refiling is 

not practical in all cases. In many cases, 

refiling is neither necessary nor desired 

because the matter has been fully 

resolved. For example, when an adverse 

action has been dismissed without 

prejudice so that the appellant can 

pursue an application for disability 

retirement, if the application is granted, 

no further action is required. 

A party suggested that the proposed 

regulation should be revised and 

reorganized. In response, we have made 

non-substantive revisions to the 

organization and language of the 

regulation. 

Section 1201.31 Representatives 

The MSPB proposed to add the phrase 

‘‘or after 15 days after a party becomes 

aware of the conduct’’ at the end of the 

third sentence in 5 CFR 1201.31(b) to 

acknowledge that a representative’s 

conflict of interest may not be readily 

apparent to a party wishing to challenge 

the designation of a representative. The 

MSPB also proposed to move provisions 

governing exclusion and other sanctions 

for contumacious behavior by parties 

and representatives to 5 CFR 1201.43. 

Readers are advised to review comments 

under 1201.43. 

A commenter suggested that the 

MSPB should offer appellants the 

option to obtain an interlocutory appeal 

of a disqualification of his or her 

representative. One reason for the 

change from the current regulation is 

the practical consideration that allowing 

an automatic interlocutory appeal, as 

the current regulation does, would 

unnecessarily delay the processing of 

the appeal. Another is that the revised 

regulation does not prohibit a request 

for an interlocutory appeal in these 

circumstances; it simply does not 

provide for the automatic certification of 

an interlocutory appeal that does not 

meet the requirements of section 

1201.92(b), including that the matter in 

question ‘‘involves an important issue of 

law or policy about which there is 

substantial ground for difference of 

opinion.’’ A party affected by the 

exclusion of a representative who 

believes that an interlocutory appeal 

would meet the requirements of 1201.92 

remains free to seek one. 

Section 1201.33 Federal Witnesses 

The MSPB proposed adding language 

to clarify that an agency’s responsibility 

under this regulation includes 

producing witnesses at depositions as 

well as at hearings. 

A commenter observed that ‘‘to 

appear at a deposition’’ appears in the 

first sentence of (a), but not in the 

second sentence. This issue has been 

addressed in the final rule. 

Several commenters asked the MSPB 

to amend the regulation to clarify that 

the employing agency is responsible for 

pay and benefit costs resulting from the 

production of witnesses not employed 

by the responding agency. Other 

commenters objected that the proposed 

amendment appears to make party 

agencies responsible for ensuring the 

appearance of individuals employed by 

nonparty agencies. The proposed 

regulation is not intended to apportion 


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these costs, which are for the involved 

agencies to resolve. However, we have 

revised the regulation to indicate that 

the Board and the parties will 

implement this provision, to the 

maximum extent possible, to avoid 

conflict with other regulations such as 

those issued pursuant to United States, 

ex rel. v. Touhy, 340 U.S. 462, 467 

(1951) regarding the production of 

evidence from Federal employees in 

matters in litigation. 

A commenter recommended adding a 

provision requiring that the nonparty 

agency be served with any order 

requiring testimony of one of its 

employees. This commenter further 

suggested that the nonparty agency be 

given an opportunity to object or seek 

modification of such an order before it 

becomes effective. The Board is 

disinclined at this time to formalize 

such a process in this regulation in 

order to minimize the risk of collateral 

litigation. However, administrative 

judges currently have the authority to 

resolve any such objections. 

A party recommended that the MSPB 

eliminate the possibility of an adverse 

inference against a respondent agency 

with respect to non-appearance of any 

employee not under its control. Under 

the MSPB’s regulations, when a party 

fails to comply with an order, the judge 

may draw an inference in favor of the 

requesting party with regard to the 

information sought. The existing 

regulation does not provide for such a 

sanction against a party when a 

nonparty violates an MSPB order. 

A commenter suggested that the 

MSPB amend the regulation to ‘‘permit 

a witness, who is a nonparty Federal 

employee, to provide telephonic or 

video testimony at the hearing upon the 

agency’s request.’’ Such a request may 

be submitted to the judge, but the MSPB 

cannot tie the judge’s hands with a 

blanket rule that gives the agency power 

to decide whether a witness will testify 

in-person or by video or telephone. 

A commenter suggested that the 

MSPB should amend this regulation to 

require agencies to pay for travel to 

depositions and that depositions should 

be taken in the local commuting area 

where the witness resides, if possible, or 

where there are videoconferencing 

capabilities. The parties to an MSPB 

appeal are free to make such 

arrangements to control costs and 

present the issue to the judge when the 

parties cannot agree on such cost 

control measures. 

A party suggested that the MSPB 

review and clarify its regulations 

regarding third party discovery. The 

MSPB is willing to consider any specific 

suggestions to improve its regulations 

and procedures in this area and invites 

any interested party to submit a petition 

for rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.34 Intervenors and 

Amicus Curiae 

The MSPB proposed to amend this 

regulation to address the fact that it 

receives motions to file amicus briefs for 

the first time on petition for review and 

provide further explanation as to what 

an amicus is permitted to do. The 

proposed amendment also included 

general guidelines indicating when 

requests to file amicus briefs will be 

granted or denied. 

A commenter generally approved of 

the proposed amendments but suggested 

that the MSPB should reference its 

recent practice of soliciting amicus 

briefs through Federal Register notices 

if it intends to continue using this 

practice. The MSPB has revised the final 

regulation to include a provision stating 

that the MSPB may solicit amicus briefs 

on its own motion. 

A commenter suggested that the 

MSPB should include a provision 

stating that, when the Board solicits 

amicus briefs on its own initiative, the 

Board will serve the amicus briefs on 

the parties. The MSPB currently serves 

the amicus briefs on the parties and sees 

no need to include this level of detail in 

the regulation. 

A commenter suggested that the 

MSPB add to the regulation a provision 

stating that an amicus curiae is not 

entitled to receive service of any 

pleadings or submit replies to briefs 

filed by the parties. As currently 

drafted, subparagraph (e)(5) of the 

regulation states that amici are not 

parties and may not participate in 

hearings but does not explicitly say that 

amici should not be served with copies 

of pleadings. However, the MSPB will 

not make the suggested change as the 

draft regulation makes clear that amici 

are not parties and, as such, plainly 

implies that they need not be served 

with copies of pleadings. 

A party recommended that the MSPB 

should require that requests for 

participation as an amicus be served on 

the parties, assuming the identity of the 

parties is known to the amicus. This 

issue was not addressed in the MSPB’s 

proposed rule. However, the MSPB is 

willing to consider any specific 

suggestions to improve its regulations 

and procedures in this area and invites 

any interested party to submit a petition 

for rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.36 Consolidating and 

Joining Appeals 

The MSPB proposed to substitute 

‘‘removal’’ for ‘‘dismissal’’ as the latter 

is not a term used by the Board to 

describe an employee’s separation from 

employment for disciplinary reasons. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.41 Judges 

The MSPB proposed to amend this 

regulation to reflect the language used 

in the MSPB Strategic Plan. The MSPB 

received no negative comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.42 Disqualifying a Judge 

The MSPB proposed to amend this 

regulation to reflect the fact that under 

current MSPB practice a judge who 

considers himself or herself disqualified 

notifies the Regional Director, not the 

Board. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Section 1201.43 Sanctions 

The MSPB proposed moving its 

regulation regarding exclusion of parties 

and representatives for contumacious 

behavior from 5 CFR 1201.31 to this 

regulation. The MSPB further proposed 

to provide judges with explicit authority 

to suspend or terminate a hearing 

already underway and to delete the 

requirement of a show cause order, 

substituting instead a requirement that 

judges provide adequate prior warning 

before imposing a sanction and 

document the reasons for any such 

sanction. The MSPB proposed to 

eliminate the provision for an 

interlocutory appeal of a sanction for 

contumacious behavior and allow a 

judge to limit participation by a 

representative without excluding the 

representative from the case entirely. 

Finally, the proposed rule deleted the 

term ‘‘appellant’s representative’’ and 

instead substitutes the term ‘‘party’s 

representative.’’ 

A commenter observed that it was 

unclear whether the MSPB was 

expanding a judge’s authority for 

sanctioning contumacious behavior to 

include witnesses or other persons 

rather than just parties or 

representatives. MSPB judges had 

authority to exclude persons other than 

parties from participation in a 

proceeding prior to publication of the 

proposed rule under 1201.31(d), and the 


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proposed rule continues to include this 

authority. 

A commenter suggested that the 

MSPB amend the regulation to state 

that, when the judge excludes a party’s 

representative, the judge will give the 

party a reasonable time to obtain 

another representative. The proposed 

and final rules include this provision in 

paragraph (d). 

A commenter suggested that the 

MSPB revise the first sentence of this 

regulation to state that the Board or a 

judge may impose sanctions ‘‘for good 

cause shown, and as necessary to serve 

the ends of justice.’’ The MSPB will not 

amend the regulation as suggested 

because the definition of ‘‘judge’’ now 

expressly includes the Board and the 

addition of the phrase ‘‘for good cause 

shown’’ does not usefully add to the 

proposed standard, ‘‘as necessary to 

serve the ends of justice.’’ 

Three commenters urged the MSPB to 

maintain the interlocutory appeal 

process in cases where a sanction is 

imposed. The proposed change 

recognizes, however, that providing for 

an automatic interlocutory appeal, as 

the current regulation does, may 

unnecessarily delay the processing of an 

appeal. Moreover, the revised regulation 

does not prohibit a request for an 

interlocutory appeal of an imposed 

sanction. A sanctioned party who 

believes an interlocutory appeal would 

meet the requirements of 1201.92 

remains free to seek one. In making 

proposed amendments to our 

regulations, the Board did not propose 

changes to the substantive criteria in 

1201.92 for granting interlocutory 

appeals. It would be inappropriate to 

publish a final rule that goes beyond the 

scope of the proposed amendments. 

However, the MSPB is willing to 

consider any specific suggestions to 

improve its regulations and procedures 

in this area and invites any interested 

party to submit a petition for 

rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.51 Scheduling the 

Hearing 

The MSPB proposed to delete the 

current list of approved hearing sites 

contained in Appendix III, in favor of a 

posting of such sites on the Board’s Web 

site, thereby facilitating greater 

flexibility in the selection of cost 

effective locations. 

Several commenters expressed the 

concern that this section appears to be 

aimed at saving the MSPB travel 

expenses but is likely to result in greater 

costs for the responding agency. These 

commenters suggested that the 

regulation should be amended to 

maximize savings to the Federal 

Government as a whole. The MSPB’s 

intent in proposing this amendment was 

not to minimize MSPB travel expenses 

at the expense of the parties, however, 

but rather to ensure that hearing site 

locations can be flexibly adjusted in 

response to ongoing changes in the 

relative costs of travelling to particular 

sites. Parties may request a change in an 

approved site if lower costs can be 

achieved in a particular case. 

A commenter recommended that the 

last sentence should be modified to state 

that rulings on motions requesting a 

different hearing location should ‘‘be 

based on a showing that a different 

location will result in lower cost to the 

government as a whole.’’ The MSPB 

does not believe that this suggestion 

accounts for the costs borne by 

appellants and therefore will not adopt 

the commenter’s proposal. 

A commenter approved of the 

proposed regulation but recommended 

that the MSPB expressly authorize 

telephonic or video hearings and direct 

parties to its Web site for resources. The 

MSPB did not address the question of 

expressly authorizing telephonic or 

video hearings in its regulations and 

therefore the MSPB will not address this 

issue herein, except to say that this has 

been noted and may be considered in 

the future. 

Finally, a commenter reported that in 

his experience judges have displayed 

poor judgment by scheduling hearing 

and prehearing deadlines far before the 

completion of discovery, unilaterally 

setting hearing dates for personal 

convenience, and denying unopposed 

motions to reschedule hearings. This 

commenter also suggested that the 

MSPB has seemingly taken the approach 

of cutting short discovery to meet the 

prehearing dates selected by the judge. 

Parties may request a suspension under 

1201.28 when additional time is needed 

for discovery. Concerns that a judge is 

improperly managing a particular case 

should be directed to the appropriate 

Regional Director or Chief 

Administrative Judge. 

Section 1201.52 Public Hearings 

The MSPB proposed to amend this 

regulation to give administrative judges 

express authority to control the use of 

electronic devices at a hearing. 

A commenter suggested that this 

regulation should be broken out into 

two parts, one addressing closure of a 

hearing and the other addressing use of 

electronic devices. The MSPB agrees 

that this proposed change will improve 

the regulation, and the final rule has 

been amended accordingly. 

A commenter objected to language in 

this regulation allowing a judge to close 

hearings and recommended that such 

authority be limited to appeals 

involving classified information or in 

the case of a pseudonymous or 

anonymous appeal. Another commenter 

suggested that the MSPB replace the 

second sentence with: ‘‘However, the 

judge may order a hearing or any part 

of a hearing closed when [Sensitive 

Security Information (SSI)] or classified 

information will be discussed, and/or 

when doing so would be in the best 

interests of the appellant, a witness, the 

public or any other person affected by 

the proceeding.’’ A different commenter 

suggested that the MSPB amend this 

regulation to state 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. The MSPB has 

amended this regulation to substitute 

‘‘interests of a party’’ for ‘‘interests of an 

appellant’’ since a respondent may offer 

good reasons to close a hearing, 

including the possible disclosure of 

classified information or SSI. The MSPB 

otherwise declines to further restrict 

when a hearing may be closed to the 

public, based on the foreseeability of 

circumstances where the closure of a 

hearing may be justified and necessary. 

A commenter recommended 

clarifying that the section’s reach 

extends to devices which have 

electronic recording and two-way 

communication functionality, even if 

those are not the device’s primary 

functions. A commenter suggested that, 

because cell phones are often used as 

clocks, a representative should be 

allowed to keep a cell phone in silent 

mode or a laptop with them during the 

hearing. This commenter further 

observed that an administrative judge 

can issue an order at the outset of the 

hearing that requires representatives to 

comply with all terms and sanction any 

party for not complying. Another 

commenter observed that the MSPB 

should reasonably control the use of 

cellphones during a hearing rather than 

deny such use. The proposed rule gives 

the administrative judge sufficiently 

broad flexibility to address the concerns 

raised in these comments on a case-bycase basis. 

Section 1201.53 Record of Proceedings 

The MSPB proposed to make several 

changes to the regulation. The term 

‘‘tape recording’’ was replaced by the 

word ‘‘recording’’ and the term ‘‘written 

transcript’’ was replaced by 

‘‘transcript.’’ The MSPB also proposed 

to allow a judge or the Board to order 


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the agency to pay for a transcript in 

certain circumstances. 

A commenter objected to the 

proposed deletion of paragraph (e), 

which specifies the contents of the 

official record of the appeal. The 

deletion of this paragraph was 

unintentional. The paragraph has been 

reinserted into the final rule with minor 

amendments. 

Several commenters argued that the 

MSPB lacks the authority to require that 

agencies pay for transcripts as proposed 

in paragraph (b). While not conceding 

that it lacks authority to take such 

action, the MSPB is removing this 

provision from the final rule. 

A commenter offered a complete 

rewrite of this regulation to correct what 

it viewed as redundant and internally 

inconsistent provisions. In response, the 

MSPB has deleted a sentence in 

paragraph (a) that is duplicative of 

language in paragraph (c). The matter 

identified as inconsistent related to the 

requirement that an agency procure a 

transcript and has been addressed by 

the deletion of that provision. 

Section 1201.56 Burden and Degree of 

Proof; Affirmative Defenses 

The Board proposed to amend this 

regulation in an attempt to reconcile the 

existing regulation with a significant 

body of Board case law holding that 

some jurisdictional elements may be 

established by making nonfrivolous 

allegations. The MSPB received 

numerous helpful comments concerning 

the proposed amendments to this 

regulation. Commenters suggested that 

the regulation’s discussion of the 

varying degrees of proof would be 

confusing to pro se appellants and the 

phrase ‘‘jurisdictional hearing’’ should 

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 the merits. 

Other commenters recommended that 

the MSPB revise the definition of a 

‘‘nonfrivolous allegation’’ and insert a 

sentence stating that a judge may 

dismiss a case for not meeting the 

nonfrivolous allegation standard. 

Finally, a commenter suggested that the 

MSPB offer further clarification of the 

burden that IRA appellants must meet to 

establish jurisdiction so as to avoid the 

dismissal of meritorious IRA appeals at 

the jurisdictional stage. 

Considering these comments, and 

after additional internal review, the 

Board has determined that it is 

appropriate to withdraw the proposed 

amendments to this regulation. We 

agree with many of the comments and 

conclude that it would be inappropriate 

to publish a final rule that goes beyond 

the scope of the proposed amendments. 

The MSPB plans to reconsider the 

current regulation in its entirety and, if 

amendments are determined to be 

necessary, offer proposed amendments 

to this regulation in a future rulemaking. 

Section 1201.58 Closing the Record 

The MSPB proposed amending this 

regulation to conform with case law 

indicating that, notwithstanding an 

order setting the date on which the 

record will close, a party must be 

allowed to submit evidence or argument 

to rebut new evidence submitted by the 

other party just prior to the close of the 

record. 

A commenter generally agreed with 

the proposed amendment but was 

concerned that the addition of the 

words ‘‘or argument’’ could be 

interpreted to allow a party to add 

additional arguments that they had 

failed to raise before the filing deadline. 

The final rule revises the proposed 

language in 1201.58(c) to address this 

concern and clarifies that the regulation 

is intended to allow new evidence or 

argument that is offered in rebuttal of 

new evidence or argument submitted by 

the other party just before the record 

closed. 

A party observed that 

acknowledgment orders often include 

conflicting provisions that theoretically 

allow for discovery but close the record 

on issues of jurisdiction or timeliness 

before discovery can be completed. This 

commenter suggested that this 

regulation should be amended to require 

judges to properly address the 

relationship between the closing of the 

record on a particular issue and the 

close of discovery. This complaint was 

aired by more than one commenter. The 

MSPB is willing to consider any specific 

suggestions to improve its regulations 

and procedures in this area and invites 

any interested party to submit a petition 

for rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.62 Producing Prior 

Statements 

The MSPB proposed to delete this 

regulation in its entirety as it has 

virtually never been invoked or applied 

and is believed to be unnecessary. The 

MSPB received no comments 

concerning its proposed deletion of this 

regulation and the final rule makes the 

proposed deletion. 

Section 1201.71 Purpose of Discovery 

The MSPB proposed an amendment 

adding a sentence stating that discovery 

requests and discovery responses 

should not ordinarily be filed with the 

Board, as is currently done in standard 

orders. 

A commenter voiced complaints 

about the current rule requiring that a 

motion to compel be filed within 10 

days. This commenter instead suggested 

that such motions should be filed 

within a reasonable time prior to the 

prehearing conference or the current 

standard should be changed to allow the 

parties to agree upon a longer period of 

time in which to file the motion to 

compel. This area of discovery practice 

was not addressed in the proposed rule. 

However, the MSPB is willing to 

consider any specific suggestions to 

improve its regulations and procedures 

in this area and invites any interested 

party to submit a petition for 

rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.73 Discovery Procedures 

The MSPB proposed to eliminate the 

initial disclosure requirement of 

subsection (a), eliminate unnecessary 

distinctions between discovery on 

parties and nonparties, increase the time 

period in which initial discovery 

requests must be served, revise 

subparagraph (d)(4) to clarify that, if no 

other deadline has been specified, 

discovery must be completed no later 

than the prehearing or close of record 

conference, and amend subparagraph 

(c)(i) to reflect the MSPB’s view that a 

motion to compel must contain a 

statement showing that the request was 

not only for relevant and material 

information, but that the scope of the 

request was reasonable. The proposed 

amendment also makes several other 

minor changes in the regulation. 

A commenter queried why certain 

text in paragraph (c) was absent from 

the proposed regulation. The changes 

proposed in the comprehensive rewrite 

of this regulation were explained in the 

supplementary information section of 

the proposed rule. 

A commenter suggested that the 

MSPB should address the application of 

(d)(1) and (d)(4) to matters refiled 

following a dismissal without prejudice 

by stating that the time for conducting 

discovery should restart on the date the 

judge issues an order reinstating the 

appeal. The MSPB believes that this 

change would be unwise and prefers to 

allow judges to address this matter in 

specific cases. 

A commenter proposed to add the 

word ‘‘final’’ before the phrase 

‘‘prehearing or close of the record 

conference.’’ The MSPB will not make 

this change as there are not multiple 

prehearing or close of the record 

conferences in a case. 


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A commenter suggested that the 

MSPB replace ‘‘file’’ with ‘‘serve’’ in the 

first sentence of paragraph (d)(2) so it is 

clear that discovery responses should 

not be filed with the Board unless in 

connection with a motion to compel. 

The MSPB has amended paragraph 

(d)(2) by substituting the word ‘‘serve’’ 

for the word ‘‘file’’ to clarify that 

responses to discovery requests are 

served on the other party. 

A commenter suggested that the 

MSPB should require that all discovery 

requests made upon nonparties be 

served on the opposing party. A party 

can request in discovery that such 

requests be disclosed. 

A commenter agreed with the 

elimination of initial disclosures for 

agencies but objected to the elimination 

of initial disclosure requirements for 

appellants because the agency will lack 

key information about the appellant’s 

witnesses if it must affirmatively ask for 

this information through discovery. The 

MSPB believes that removing the initial 

disclosures requirements for one party 

but not the other would be unfair. 

A commenter recommended adding 

limits on discovery and interrogatory 

requests, including subparts, consistent 

with those under the Federal Rules of 

Civil Procedure. Such limits are set 

forth in paragraph (e) of the proposed 

rule. 

A commenter suggested that the 

MSPB add a requirement similar to 

FRCP 26(b)(5), which requires a party to 

produce a privilege log when it asserts 

a privilege as the basis for withholding 

otherwise discoverable information. In 

making proposed amendments to our 

regulations, the Board did not propose 

changes to this area of discovery 

practice. It would be inappropriate to 

publish a final rule that goes beyond the 

scope of the proposed amendments. 

However, the MSPB is willing to 

consider any specific suggestions to 

improve its regulations and procedures 

in this area and invites any interested 

party to submit a petition for 

rulemaking addressing this area of 

MSPB practice and procedure. 

A commenter suggested that the 

MSPB should set prehearing deadlines 

to accommodate the completion of 

discovery instead of limiting discovery 

to meet prehearing dates. The 

scheduling of a prehearing conference 

must be left to the discretion of the 

judge. If a party believes insufficient 

time is available for discovery, he or she 

may seek a suspension under 1201.28. 

A commenter suggested that the 

MSPB include a provision mandating an 

automatic stay of all discovery 

deadlines if the Board’s jurisdiction is 

called into question, with the stay 

remaining in effect until the 

jurisdictional issues are adjudicated. 

The MSPB has determined that adding 

such a provision is inadvisable because 

it would add significant delay to the 

adjudication of cases ultimately found 

to be within its jurisdiction. A party is 

free to ask for such a stay in an 

individual case. 

A commenter opposed the 

requirement of (c)(1)(i) that the party 

moving to compel discovery produce ‘‘a 

statement showing that the information 

is relevant and material and the scope 

of the request is reasonable’’ as contrary 

to the proper standard for discovery— 

that the information sought is likely to 

lead to the discovery of admissible 

evidence. In response to this comment 

and the differing scopes of discovery 

that apply to parties and nonparties (see 

§ 1201.72(a) and (b)), the MSPB has 

modified paragraph (c)(1)(i), to refer 

back to 1201.72. 

Section 1201.81 Requests for 

Subpoenas 

The MSPB did not offer any 

amendments to this regulation in the 

proposed rule. However, in light of the 

amendment in the final rule to 

1201.73(c)(1)(i) regarding motions to 

compel or issue a subpoena, the MSPB 

also deemed it appropriate to amend 

1201.81(c) so that it is consistent with 

the standard described in section 

1201.72(b): ‘‘Discovery requests that are 

directed to nonparties and nonparty 

Federal agencies and employees are 

limited to information that appears 

directly material to the issues involved 

in the appeal.’’ 

Section 1201.93 Procedures 

The MSPB proposed to replace 

‘‘hearing’’ with the word ‘‘appeal’’ 

because there may or may not be a 

pending hearing in a case where an 

interlocutory appeal has been certified 

to the Board. The MSPB also proposed 

to use the term ‘‘stay the processing of 

the appeal’’ in lieu of the term ‘‘stay the 

appeal’’ to avoid any ambiguity. 

A party observed that the proposed 

rule allows a stay during an 

interlocutory appeal, but it is unclear 

whether this stay is charged against the 

60-day aggregate limit on case 

suspensions. We agree and have revised 

the regulation to clarify that a stay 

granted in response to an interlocutory 

appeal is not related to a case 

suspension under 1201.28 and therefore 

any time the case is subject to such a 

stay is not counted against the time 

allowed for case suspensions under 

1201.28. 

Section 1201.101 Explanation and 

Definitions 

The MSPB proposed an amendment 

to clarify that Mediation Appeals 

Program (MAP) mediators and 

settlement judges may discuss the 

merits of an MSPB case with a party 

without running afoul of the prohibition 

on ex parte communication. The MSPB 

received no comments concerning its 

proposed changes to this regulation and 

is adopting the proposed rule as final. 

Section 1201.111 Initial Decision by 

the Judge 

The MSPB proposed to delete 

language about serving the Office of 

Personnel Management (OPM) and the 

Clerk of the Board with initial decisions 

to conform with longstanding Board 

practice under which OPM has access to 

all of the Board’s initial and final 

decisions via the MSPB Extranet. 

A party recommended against 

deleting all reference to the Board’s 

responsibility to serve OPM, as this is a 

statutory duty under 5 U.S.C. 7701(b)(1). 

The MSPB has amended the proposed 

rule to address this comment. 

Section 1201.112 Jurisdiction of the 

Judge 

The MSPB proposed an amendment 

that would allow an administrative 

judge to vacate an initial decision to 

accept a settlement agreement into the 

record when the settlement agreement is 

filed by the parties prior to the deadline 

for filing a petition for review but is not 

received until after the date when the 

initial decision would become the 

Board’s final decision by operation of 

law. The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.113 Finality of Decision 

The MSPB proposed to amend 

paragraph (a) to conform this regulation 

to the proposed revision to 5 CFR 

1201.112(a)(4) described above. The 

MSPB proposed to add paragraph (f) to 

indicate that the Board will make a 

referral to OSC to investigate and take 

any appropriate disciplinary action 

whenever the Board finds that an 

agency has engaged in reprisal against 

an individual for making a protected 

whistleblowing disclosure. 

A commenter suggested that the 

MSPB address the difficulty that arises 

when a judge orders compliance with an 

initial decision on a date prior to the 

date the initial decision becomes final. 

Except for orders granting interim relief, 

compliance should not be ordered 

before the finality date and the MSPB’s 

standard orders are formatted to avoid 


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this from occurring. The MSPB sees no 

need to address this situation in its 

regulations. 

Several commenters pointed out a 

typographical error in the opening 

sentence. The MSPB has corrected this 

error. 

A commenter noted that the proposed 

language places no restriction on the 

timeframe for a final decision. There is 

no time limit within which the Board 

must issue a decision on a pending 

petition for review, but the Board 

attempts to resolve cases as quickly as 

it can. 

A commenter objected to the ‘‘reason 

to believe’’ standard for referral of a 

prohibited personnel practice to OSC as 

too low and vague. The commenter 

further suggested that referral to OSC 

should remain limited to IRA appeals in 

which the Board found that the agency 

retaliated against the appellant and that 

such a referral divests the agency of its 

responsibility to address the issue 

internally. In the MSPB’s view, the 

reasonable belief standard is neither too 

vague nor too low. In any event, the 

‘‘reason to believe’’ standard is 

prescribed by statute, 5 U.S.C. 

1221(f)(3), and the Board is not free to 

modify it. The Board has an obligation 

to make such a referral whenever it 

makes a finding that an appellant in a 

Board proceeding suffered retaliation for 

protected whistleblowing in violation of 

5 U.S.C. 2302(b)(8). In our view, a 

referral by the Board to OSC does not in 

any way prevent the agency in question 

from taking appropriate disciplinary 

action. The Board proceeding focuses on 

whether the appellant suffered such 

retaliation; it does not focus on who was 

responsible for the retaliation, whether 

such official(s) should be disciplined, 

and, if so, what the extent of such 

discipline should be. OSC is the agency 

charged with making those 

determinations. 

Section 1201.114 Petition and Cross 

Petition for Review—Content and 

Procedure 

The MSPB proposed page limitations 

for pleadings on petition for review, to 

allow for replies to responses to 

petitions for review, and to define 

petitions for review and cross petitions 

for review. Paragraph (b) was amended 

to specify that a petition or cross 

petition for review must include ‘‘all of 

the party’s legal and factual arguments.’’ 

A commenter noted that the 

references in (a)(1), (2), (4), and (5) to ‘‘a 

party’’ are incomplete to the extent they 

do not include OPM and the Special 

Counsel. The phrase ‘‘a party’’ includes 

both of these agencies. See 5 CFR 

1201.4(e). 

A commenter asked the MSPB to 

clarify in its regulations whether a reply 

to a response to a petition for review is 

permitted. The proposed regulations 

clearly indicate that such a pleading is 

authorized. 

Commenters recommended spacing 

limits and/or word limits, in addition to 

page limits and set forth the 

consequences of noncompliance. In 

response to this comment, the MSPB 

has modified paragraph (h) to include 

alternate word count requirements (in 

addition to page limits) and modified 

other language slightly. Paragraph (l) 

was added to address the consequences 

of noncompliance. 

A commenter noted that paragraph (f) 

only allows a party to file an extension 

‘‘before the date on which the petition 

for review is due’’ and that the MSPB 

should provide for extenuating 

circumstances that may arise on the date 

of filing. This comment was addressed 

in a minor amendment to paragraph (f). 

A commenter recommended that the 

MSPB, when the timeliness of a petition 

for review is at issue, should address the 

timeliness issue of a petition for review 

before the agency is required to submit 

its response on the merits. While this 

suggestion has some merit, it is 

impractical for the MSPB to adopt this 

suggestion given the number of petitions 

for review it receives. In addition, 

adopting this suggestion would 

inevitably delay the resolution of those 

petitions for review ultimately found to 

have been timely filed. 

A commenter was unsure of the value 

of a reply brief and suggested that the 

MSPB allow the filing of such brief on 

a trial basis. The MSPB does not plan to 

implement this change as a trial project. 

If this new pleading proves unhelpful, 

the MSPB may address it in a future 

rulemaking. 

A commenter noted that the 

provisions on extensions 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 

and suggested that the automatic 

extension created by the filing of an 

extension request should be made 

explicit in the paragraph addressing 

extensions of time to file. The proposed 

rule does not provide that an extension 

request made on or before the filing 

deadline serves as an extension without 

a formal ruling by the Board. 

Section 1201.115 Criteria for Granting 

Petition or Cross Petition for Review 

The MSPB proposed an amendment 

to address the criteria for granting 

petitions and cross petitions for review. 

A commenter objected that the use of 

the phrase ‘‘including but not limited 

to’’ when describing situations in which 

the MSPB may grant a petition or cross 

petition for review left the MSPB’s 

authority too open-ended. The MSPB’s 

intent in using this language was to give 

the MSPB the authority in other rare 

circumstances, either not foreseen in the 

regulation or inadvertently left out of 

the regulation, to grant such a petition. 

The general intent of the regulation is to 

grant a petition for review whenever the 

petitioner shows that: (1) The case was 

incorrectly decided based on the 

existing record; (2) new and material 

evidence indicates that the outcome 

should be different than in the initial 

decision; or (3) the petitioner did not get 

a full and fair adjudication process. As 

written, the regulation tries to capture 

the most common situations in which 

these conditions are present, but it 

could not capture all such 

circumstances. 

A commenter suggested amending 

paragraph (e) to be clearer and preserve 

the power to reopen in 1201.118. We 

modified the wording of paragraph (e) to 

convey the meaning more clearly. 

A commenter suggested that the 

MSPB adopt a 30-day time limit for 

reopening appeals. The MSPB believes 

such a rule lacks sufficient flexibility. 

A commenter objected to the 

inclusion of ‘‘or legal argument’’ in the 

discussion in paragraph (d) concerning 

reliance upon new evidence or legal 

argument at the petition for review 

level. The MSPB’s intent in this 

regulation is to allow parties to raise 

new legal arguments arising from the 

discovery of new evidence, not any new 

legal argument a party wishes to raise 

belatedly. In addition, this language 

anticipates situations in which 

governing law has changed since the 

initial decision was issued. 

Section 1201.116 Compliance With 

Orders for Interim Relief 

The MSPB proposed to amend this 

regulation to combine the existing 

contents of 5 CFR 1201.116 with the 

provisions of 5 CFR 1201.115(b) and (c). 

A commenter suggested that this 

regulation should be revised to provide 

an agency the opportunity to seek a stay 

of interim relief while its petition for 

review is pending. Another commenter 

expressed the concern that under 

paragraph (g) an appellant could be 

granted full interim relief although he or 

she is not the prevailing party in the 

final Board order. The Board declines to 

adopt these suggestions because stays of 

interim relief undermine the very 

purpose of granting such relief and risk 

engendering collateral litigation. The 


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MSPB sees no value in creating a 

separate system of reviewing this aspect 

of an initial decision while the petition 

for review is being considered. 

A commenter suggested that the 

language of (d) should state that ‘‘[i]f the 

agency files a petition for review or a 

cross petition for review or has not 

provided required interim relief * * *.’’ 

The MSPB will not implement this 

change as the dismissal of a petition or 

cross petition for review for failure to 

provide required interim relief is only 

possible in cases where such a pleading 

has been filed. 

A commenter suggested that the 

regulation was unclear and asked if it is 

intended to give the appellant a 

discretionary opportunity to request 

dismissal of an agency petition for 

review 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 petition for 

review is granted. The commenter’s 

interpretation of the proposed rule is 

correct, and the proposed rule is 

unambiguous. 

Section 1201.117 Procedures for 

Review or Reopening 

The MSPB proposed to amend 

subparagraph (a)(1) to reflect the 

significant revision to 5 CFR 1201.118, 

which would restrict ‘‘reopening’’ to 

situations in which the Board members 

have previously issued a final order or 

the initial decision has become the 

Board’s final order by operation of law. 

A commenter requested that the 

MSPB reconsider its distinction 

between nonprecedential final orders 

and precedential opinions and orders as 

the commenter failed to see the 

characterization of a decision as ‘‘nonprecedential’’ as meaningful. As the 

commenter noted, this request concerns 

an issue not addressed in the proposed 

rule. Therefore, while the MSPB has 

taken note of this comment, no 

amendment to the MSPB’s regulations is 

contemplated in this final rule. The 

MSPB is willing to consider any specific 

suggestions to improve its regulations 

and procedures in this area and invites 

any interested party to submit a petition 

for rulemaking addressing this area of 

MSPB practice and procedure. 

Section 1201.118 Board Reopening of 

Final Decisions 

The MSPB proposed to amend this 

regulation to state that ‘‘reopening’’ only 

applies to, and should be reserved for, 

instances in which the Board has 

already issued a final order or the initial 

decision has become the Board’s final 

decision by operation of law. The MSPB 

also amended this regulation to 

incorporate well-established case law 

addressing the rare and limited 

circumstances in which the Board will 

reopen a final decision. 

A commenter objected to the MSPB’s 

proposed amendment on the grounds 

that it would establish a very high 

standard that will make it difficult for 

OPM or other Federal agencies to 

successfully seek relief from an 

erroneous decision. The Board thinks 

the proposed standard is an appropriate 

general standard for reopening an 

appeal and believes that the concern 

that OPM will have difficulty seeking 

reopening is unwarranted as OPM can 

seek reconsideration under 5 U.S.C. 

7701(e) and 1201.119. 

A commenter observed that the 

amended regulation includes no time 

limit on the Board’s authority to reopen 

a case. The MSPB does not believe that 

a preset time limit for filing a request to 

reopen an appeal is appropriate and is 

confident that that current language 

stating that such a request must 

generally be filed within a short time 

after the decision becomes final is 

sufficient to guard against late-filed 

requests. 

A commenter was concerned that the 

proposed regulation would severely 

limit the MSPB’s authority to reopen 

and reconsider cases on its own motion 

and appears to conflict with the broad 

authority granted the MSPB under 5 

U.S.C. 7701(e)(1). The Board believes 

that reopening or reconsidering a final 

decision must be confined to rare and 

limited circumstances and that nothing 

in the proposed regulation conflicts 

with the grant of authority given to the 

MSPB under 5 U.S.C. 7701(e)(1). 

A commenter requested clarification 

of the impact of the proposed 

amendments on petitions for review. 

The proposed rule has no effect on 

petitions for review. 

Section 1201.119 OPM Petition for 

Reconsideration 

The MSPB proposed to make minor 

wording changes in this regulation in 

light of the language used in 5 CFR 

1201.117 and 1201.118, and to eliminate 

any confusion between ‘‘Final Order’’ as 

the document title of a particular type 

of final Board decision and the generic 

term ‘‘final decision,’’ which applies to 

any type of final decision, whether it is 

an Opinion and Order or a ‘‘Final 

Order.’’ 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.122 Filing Complaint; 

Serving Documents on Parties 

This proposed rule was intended to 

correct an oversight in the MSPB’s 

regulations relating to the use of eAppeal in original jurisdiction actions. 

The MSPB also proposed to amend 

paragraph (a) to require OSC to file a 

single copy of the complaint. Paragraphs 

(d) and (e) were deleted as unnecessary. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.128 Filing Complaint; 

Serving Documents on Parties 

The proposed amendments to this 

regulation were similar to the proposed 

amendments to 5 CFR 1201.122. The 

MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.134 Deciding Official; 

Filing Stay Request; Serving Documents 

on Parties 

The proposed amendments to this 

regulation were similar to the proposed 

amendments to 5 CFR 1201.122. The 

MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.137 Covered Actions; 

Filing Complaint; Serving Documents on 

Parties 

The proposed amendments to this 

regulation were similar to the proposed 

amendments to 5 CFR 1201.122. A 

commenter recommended that the 

MSPB eliminate the requirement in 

paragraph (c) that the agency file two 

copies of the complaint on the MSPB. 

The MSPB has made this change in the 

proposed rule. 

Section 1201.142 Actions Filed by 

Administrative Law Judges 

The MSPB proposed to correct a 

typographical error in this regulation. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.143 Right to Hearing; 

Filing Complaint; Serving Documents on 

Parties 

The proposed amendments to this 

regulation were similar to the proposed 

amendments to 5 CFR 1201.122. A 

minor technical amendment has been 

made to paragraph (c) to be consistent 

with requirements for filing new 

appeals under the Board’s appellate 

jurisdiction. Section 1201.26(a) provides 


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that the appellant ‘‘must file two copies 

of both the appeal and all attachments 

with the appropriate Board office, 

unless the appellant files an appeal in 

electronic form under § 1201.14. Unlike 

the original jurisdiction appeals under 

1201.122, .128, and .134, the MSPB 

needs a second copy for service on the 

opposing party. 

Section 1201.153 Contents of Appeal 

The MSPB proposed to amend (a)(2) 

to clarify that not all discrimination 

matters may be raised with the Board 

and substitute the term ‘‘under a 

negotiated grievance procedure’’ for the 

word ‘‘grievance’’ to reflect that these 

are the only types of grievances covered 

under the mixed cases regulations. The 

MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.154 Time for Filing 

Appeal; Closing Record in Cases 

Involving Grievance Decisions 

The MSPB proposed to incorporate by 

reference the rules governing 

constructive receipt as proposed in 5 

CFR 1201.22(b)(3). The MSPB received 

no comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Section 1201.155 Requests for Review 

of Arbitrators’ Decisions 

The MSPB proposed to remove the 

existing regulation as unnecessary and 

put in its place a new regulation 

addressing requests for review of 

arbitrators’ decisions. The proposed rule 

also removed the existing regulation at 

5 CFR 1201.154(d) and moved it into 5 

CFR 1201.155. The MSPB has noted that 

the instructions in the proposed rule did 

not actually delete paragraph (d) from 

section 1201.154; nor did it delete 

paragraph (e), which also relates to 

review of arbitrators’ decisions, from 

section 1201.155. In addition, the MSPB 

had neglected to incorporate language 

from paragraph (d) as to when a request 

for review of an arbitrator’s decision 

must be filed. The final rule corrects 

these oversights. The requirement as to 

when a request for review must be filed 

is now paragraph (b) in section 

1201.155, and what had been proposed 

as paragraphs (c) through (e) have 

become paragraphs (d) through (f). 

Several commenters objected to a 

provision in paragraph (d) (now 

paragraph (e)) allowing an issue to be 

given to a judge for development of the 

record. These commenters stated that 

where a remand is necessary, the matter 

should be returned to the arbitrator, that 

the MSPB’s proposed rule conflicts with 

the collective bargaining process, and 

that it would be 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. We were 

concerned that remand to the arbitrator 

is not practical or feasible in most cases. 

Arbitration is a matter of contract and, 

once the arbitrator has issued an award, 

the contract has been performed and the 

arbitrator has been paid. The arbitrator 

could not become involved with the 

case on remand unless the union and 

the agency agreed to create a new 

contract. We felt it would be more 

practical and efficacious to forward 

such cases to MSPB judges where 

further development of the record is 

required. 

A commenter objects to paragraph (b), 

which would limit review to cases in 

which the employee’s claim of 

discrimination was raised in the 

negotiated grievance procedure as 

inconsistent with the ‘‘notwithstanding’’ 

clause of 5 U.S.C. 7702. The Board does 

not believe this change is inconsistent 

with the ‘‘notwithstanding’’ clause of 

section 7702, and does not construe the 

Federal Circuit’s decision in Jones as 

compelling a contrary conclusion. An 

appellant who raises a discrimination 

claim to the arbitrator in addition to the 

Title 5 or other employment claim will 

be entitled to an adjudication of both. 

All the Board is doing is specifying 

when the claim of discrimination must 

be raised. We note that section 7121(d) 

provides for Board review of ‘‘the final 

decision [of the arbitrator] pursuant to 

section 7702 of this title * * *.’’ If the 

Board were to adjudicate a claim of 

discrimination that could have been but 

was not raised to the arbitrator, it would 

not be reviewing the arbitrator’s final 

decision with respect to that claim; it 

would be adjudicating the claim de 

novo. 

Section 1201.181 Authority and 

Explanation 

The MSPB proposed non-substantive 

changes to this regulation that merely 

reordered the information and added 

descriptive labels to each paragraph. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1201.182 Petition for 

Enforcement 

The MSPB proposed to amend this 

regulation to clarify that the Board’s 

enforcement authority under 5 U.S.C. 

1204(a)(2) extends to situations in 

which a party asks the Board to enforce 

the terms of a settlement agreement 

entered into the record for purposes of 

enforcement as well as to situations in 

which a party asks the Board to enforce 

the terms of a final decision or order. 

A commenter observed that few 

agencies inform the appellant when 

they believe that compliance is 

complete and therefore the time limit 

for filing an enforcement petition will 

rarely be triggered by the issuance of a 

notice of compliance by the agency. 

This commenter suggested that the 

Board should provide a deadline for an 

agency to issue a compliance notice 

and, if the compliance notice is issued, 

provide the appellant 30 days to file an 

enforcement petition. The commenter 

further suggested that, if the agency 

does not file a compliance notice, the 

regulation should give the appellant a 

reasonable period of time to file his or 

her petition after such notice should 

have been filed by the agency. The 

MSPB recognizes and appreciates the 

concerns raised by the commenter but 

believes that the current rule is more 

appropriate, especially in light of the 

complicated issues that sometimes arise 

in an agency’s attempt to comply with 

an MSPB order, such as when 

compliance with a Board order requires 

the involvement of another agency. 

Section 1201.183 Procedures for 

Processing Petitions for Enforcement 

The MSPB proposed amendments to 

this regulation to change the nature of 

an administrative judge’s decision in a 

compliance proceeding from a 

‘‘recommendation’’ to a regular initial 

decision, which would become the 

Board’s final decision if a petition for 

review is not filed or is denied. The 

proposed regulation provided that the 

‘‘responsible agency official,’’ whose 

pay may be suspended should a finding 

of noncompliance become the Board’s 

final decision, will be served with a 

copy of any initial decision finding the 

agency in noncompliance. To the extent 

that an agency found to be in 

noncompliance decides to take the 

compliance actions identified in the 

initial decision, the proposed regulation 

increases the period for providing 

evidence of compliance from 15 days to 

30 days. The MSPB also proposed in 

paragraph (c) to codify the different 

burdens of proof that apply in these 

enforcement actions. 

Commenters observed that the 

proposed rule, which eliminates the 

‘‘good faith’’ consideration in evaluating 

a party’s compliance with a final 

decision, establishes a stricter standard 

than that provided for under Rule 70 of 

the Federal Rules of Civil Procedure and 

arguably establishes a strict liability 

standard. These commenters 

recommended that the good faith 


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element be re-inserted into the 

regulation as there are occasions when 

an agency, even if it acted with 

diligence in attempting to comply with 

an order, cannot do so within the time 

frame specified by the order. The 

objective behind the change to this 

regulation is threefold: (1) To get the 

agencies to take their obligations 

seriously during the regional office 

proceeding; (2) to get the judges to 

actually resolve and make concrete what 

the agency’s obligations are; and (3) to 

the maximum feasible extent, get actual 

compliance at the regional office level. 

Under this new framework, it is 

irrelevant whether the agency has made 

a good faith attempt to comply with its 

obligations. What is required is full and 

complete compliance. Retaining the 

‘‘good faith’’ provision would run 

counter to these purposes. 

A commenter recommended that the 

regulation be amended to require that a 

copy of the initial decision finding 

noncompliance be served not only on 

the responsible agency official, but also 

on all other parties on the certificate of 

service. The MSPB will not make this 

proposed amendment as nothing in the 

regulation suggests that the requirement 

to serve the responsible agency official 

will affect service on any other person. 

A commenter pointed out that the 

Board stated in the notice of proposed 

rulemaking that an initial decision 

finding noncompliance would become 

final if neither party petitioned for 

review, but paragraph (b) of the 

proposed regulation stated that, 

‘‘[f]ollowing review of the initial 

decision and the written submissions of 

the parties, the Board will render a final 

decision on the issues of compliance.’’ 

This seemed to imply that initial 

decisions would not become final if no 

pleadings were filed. New paragraph (b) 

clarifies this issue by providing that the 

initial decision will become the Board’s 

final compliance decision if the 

noncomplying party files neither a 

petition for review nor a statement of 

compliance, and that the matter will 

then be processed further under the 

enforcement provisions of the 

regulation. 

Heading of Subpart H 

The Board proposed to revise the 

heading for Subpart H of Part 1201 to 

reflect that the subpart addresses 

attorney fees and related costs, 

consequential damages, compensatory 

damages, and liquidated damages. The 

MSPB received no comments 

concerning this proposed amendment 

and is adopting the proposed change as 

previously published. 

Section 1201.201 Statement of 

Purpose 

The MSPB proposed to amend this 

regulation by adding a provision 

relating to awards of liquidated damages 

under VEOA. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Section 1202.202 Authority for Awards 

The MSPB proposed to amend this 

regulation by adding a provision 

relating to awards of liquidated damages 

under VEOA. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Section 1201.204 Proceedings for 

Consequential, Liquidated, and 

Compensatory Damages 

The MSPB proposed to change ‘‘3- 

member Board’’ to ‘‘the Board’’ in order 

to cover situations in which there are 

only two Board members. In addition, 

because requests for ‘‘liquidated 

damages’’ in VEOA appeals are also 

handled in addendum proceedings, the 

MSPB proposed to modify this 

regulation to include requests for such 

damages. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Appendix III to Part 1201 

The MSPB proposed to remove and 

reserve Appendix III. See earlier 

discussion regarding proposal to amend 

5 CFR 1201.51(d). 

Section 1203.2 Definitions 

The MSPB proposed to revise this 

regulation to acknowledge that there are 

now 12 prohibited personnel practices. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1208.3 Application of 5 CFR 

Part 1201 

The MSPB proposed to amend this 

section to reflect the references to 

liquidated damages in section 5 CFR 

1201.204. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Section 1208.21 VEOA Exhaustion 

Requirement 

The MSPB proposed to amend 

paragraph (a) to clarify and codify an 

appellant’s burden of proving 

exhaustion in a VEOA appeal. The 

MSPB proposed in paragraph (b) to add 

a section addressing equitable tolling. 

The MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1208.22 Time of Filing 

The MSPB proposed to add paragraph 

(c) to address the possibility of excusing 

an untimely filed appeal under the 

doctrine of equitable tolling. 

A commenter stated that by providing 

examples of circumstances that could 

support equitable tolling, the MSPB may 

be limiting the circumstances that will 

be described by appellants and 

recommended that the MSPB change the 

language from ‘‘examples include’’ to 

‘‘examples include, but are not limited 

to.’’ The MSPB sees no need to make 

this change as the phrase ‘‘examples 

include’’ clearly indicates that the stated 

examples are not an exclusive list of all 

available circumstances that could 

support a claim of equitable tolling. 

Section 1208.23 Content of a VEOA 

Appeal; Request for Hearing 

The MSPB proposed to amend this 

regulation to reflect the fact that it will 

scrutinize the exhaustion issue in a 

VEOA appeal in the same way that it 

scrutinizes the exhaustion issue in an 

IRA appeal. The proposed amendment 

therefore added a new subparagraph 

between current 5 CFR 1208.23(a)(4) 

and (5), stating that a VEOA appeal 

must contain evidence to identify the 

specific claims that the appellant raised 

before the Department of Labor. The 

MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1209.2 Jurisdiction 

The MSPB proposed to change the 

reference in paragraph (a) from 5 U.S.C. 

1214(a)(3) to 5 U.S.C. 1221(a). In 

addition, in light of a 1994 amendment 

to 5 U.S.C. 7121 adding paragraph (g), 

the MSPB proposed to overrule a 

significant body of Board case law and 

amend this regulation to provide that an 

employee affected by a prohibited 

personnel practice ‘‘may elect not more 

than one’’ of 3 remedies: (A) An appeal 

to the Board under 5 U.S.C. 7701; (B) a 

negotiated grievance under 5 U.S.C. 

7121(d); or (C) corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12, i.e., a complaint filed with OSC (5 

U.S.C. 1214), which can be followed by 

an IRA appeal filed with the Board (5 

U.S.C. 1221). The proposed amendment 

also made clear that an election is 

deemed to have been made based on 

which of the 3 actions the individual 

files first. The proposed rule further 

stated that when taking an otherwise 


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appealable action, agencies would be 

required, per revised 5 CFR 1201.21, to 

advise employees of their options under 

5 U.S.C. 7121(g) and the consequences 

of such an election. 

Several commenters object to the new 

election of remedies provision 

contained in paragraph (d). These 

commenters argue that the election 

requirement in paragraph (d) is not 

required under 5 U.S.C. 7121(g) because 

that statute applies only to employees 

covered by collective bargaining 

agreements. As explained in the 

supplementary information section of 

the proposed rule, the MSPB is 

convinced that a plain reading of 5 

U.S.C. 7121(g) indicates that an 

individual who has been subjected to an 

otherwise appealable action, but who 

seeks corrective action from OSC before 

filing an appeal with the Board, has 

elected an IRA appeal and is limited to 

the rights associated with such an 

appeal. The proposed rule therefore 

adopted the plain language reading of 5 

U.S.C. 7121(g) and proposed to overrule 

Massimino v. Department of Veterans 

Affairs, 58 M.S.P.R. 318 (1993) and its 

progeny. 

An employee who is not covered by 

a negotiated grievance procedure does 

not have all three of the options listed 

in subsection 7121(g)(3), as he or she 

cannot elect the negotiated grievance 

procedure. That does not mean, 

however, that the statute therefore 

contemplates that such an individual 

may elect both of the other two options; 

it simply means that the individual has 

to select one or the other of those two 

options. We note in this regard that the 

term ‘‘employee’’ in 5 U.S.C. chapter 71 

is not limited to those covered by 

negotiated grievance procedures. See 5 

U.S.C. 7103(a)(2). 

Several commenters expressed 

concern about the relationship between 

elections following proposed and 

effected personnel actions. One 

commenter noted that when an 

employee has filed a complaint with 

OSC at the proposal notice stage and 

thereafter wants to file a direct appeal 

once an action has been taken, the 

employee will be required to withdraw 

the OSC complaint regarding the 

proposal notice in order to get full direct 

appeal rights as to the removal. The 

MSPB does not agree that the new 

election provision would require this 

result. In the MSPB’s view, an employee 

would be able to make separate 

elections for both the proposed and 

effected actions and pursue the remedy 

selected for each action. The MSPB 

understands that there remain practical 

concerns when an individual wants to 

pursue with OSC the claim that a 

proposal notice was retaliation for 

whistleblowing, while pursuing a direct 

appeal with the Board for the effected 

adverse action. In particular, there 

would be the possibility that the adverse 

action appeal might proceed toward the 

issuance of an initial decision before 

OSC has the opportunity to investigate 

the claim and pursue corrective action 

on the individual’s behalf. We note in 

this regard that the appellant in the 

adverse action appeal could seek a stay 

under section 1201.28 or a dismissal 

without prejudice under section 

1201.29, to ensure that OSC has an 

opportunity to complete its 

investigation and seek corrective action. 

A commenter agreed that the MSPB 

had no choice but to reconcile its 

regulations regarding election of 

remedies with the requirements of 5 

U.S.C. 7121(g) but argued that the MSPB 

should not apply the new election 

provision retroactively as retroactive 

application is not favored in the law and 

would lead to confusion and increased 

litigation. The new election of remedies 

provision does not address whether it 

may be applied retroactively. However, 

with regard to this issue, it must be 

noted that Congress amended 5 U.S.C. 

7121 to add paragraph (g) in 1994. 

Public Law 103–424, section 9(b), 108 

Stat. 4361, 4365–66 (1994). There would 

be difficult interim questions 

concerning cases that are already in the 

pipeline. One issue would be whether, 

despite the seemingly clear language 

and consequences of § 7121(g), the 

appellant should be deemed to have 

made a valid and binding election. An 

argument might be made that an 

election is not binding unless it 

constitutes a knowing and informed 

decision. Cf. Atanus v. Merit Systems 

Protection Board, 434 F.3d 1324, 1326– 

27 (Fed. Cir. 2006) (concluding that the 

appellant made a knowing and 

informed, and therefore binding, 

election under § 7121(e)). The proposed 

regulation does not resolve this 

question, which would be resolved in 

particular appeals. If the Board were to 

hold that some elections were not 

binding, a related question would be 

whether the Board should excuse the 

untimely filing of the Board appeal, 

which would be filed well after the 30- 

day deadline of 5 CFR 1201.22(b)(1). 

Again, this would be resolved in 

particular appeals. 

Section 1209.4 Definitions 

The MSPB proposed to amend the 

definition of ‘‘whistleblowing.’’ The 

MSPB received no comments 

concerning its proposed changes to this 

regulation and is adopting the proposed 

rule as final. 

Section 1209.5 Time of Filing 

The MSPB proposed to amend this 

regulation to eliminate the distinction 

between IRA appeals and otherwise 

appealable actions in light of the change 

made to 5 CFR 1209.2, and to revise the 

language regarding equitable tolling 

consistent with the changes made in 

sections 5 CFR 1208.21 and .22. 

A commenter stated that by providing 

examples of circumstances that could 

support equitable tolling, the MSPB may 

be limiting the circumstances that will 

be described by appellants and 

recommended that the MSPB change the 

language from ‘‘examples include’’ to 

‘‘examples include, but are not limited 

to.’’ The MSPB sees no need to make 

this change as the phrase ‘‘examples 

include’’ clearly indicates that the stated 

examples are not an exclusive list of all 

available circumstances that could 

support a claim of equitable tolling. 

Section 1209.6 Content of Appeal; 

Right to Hearing 

As in the modification to 5 CFR 

1201.24(d), the MSPB proposed to 

clarify that an appellant does not 

automatically have a right to a hearing 

in every Board appeal and that such a 

right exists, if at all, only when the 

appeal has been timely filed and the 

appellant has established jurisdiction 

over the appeal. The MSPB received no 

comments concerning its proposed 

changes to this regulation and is 

adopting the proposed rule as final. 

Comments Beyond the Scope of the 

Proposed Rule 

The MSPB solicited comments on any 

other aspect of its adjudicatory 

regulations in its proposed rule. The 

MSPB received a number of comments 

on such matters and appreciates the 

thoughtfulness with which the 

commenters made their views known. 

The MSPB has reviewed these 

submissions and will consider each of 

the commenters’ ideas as it continues to 

strive to improve its adjudicatory 

regulations. 

One comment received by the MSPB 

addressed two issues that the 

commenter, after noting that the two 

issues were beyond the scope of matters 

addressed in the proposed rule, asked 

the MSPB to consider as a petition for 

rulemaking. In keeping with the MSPB’s 

proposed rule regarding petitions for 

rulemaking and the MSPB’s 

commitment to post such requests on its 

Web site, the MSPB will shortly post 

this request on its Web site with a 

request for comments from interested 

parties. The petition asks the MSPB to 

replace the definition of 


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‘‘preponderance of the evidence’’ in 5 

CFR 1201.56(c)(2) and correct a 

perceived error regarding the burdens of 

proof in a case under 5 U.S.C. 4303 in 

its holding in Griffin v. Department of 

the Army, 23 M.S.P.R. 657 (1984). 

List of Subjects in 5 CFR Parts 1200, 

1201, 1203, 1208, and 1209 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, the Board amends 5 

CFR parts 1200, 1201, 1203, 1208, and 

1209 as follows: 

PART 1200—[AMENDED] 

■ 1. The authority citation for 5 CFR 

part 1200 continues to read as follows: 

Authority: 5 U.S.C. 1201 et seq. 

■ 2. Add § 1200.4 as follows: 

§ 1200.4 Petition for Rulemaking. 

(a) Any interested person may 

petition the MSPB for the issuance, 

amendment, or repeal of a rule. For 

purposes of this regulation, a ‘‘rule’’ 

means a regulation contained in 5 CFR 

parts 1200 through 1216. Each petition 

shall: 

(1) Be submitted to the Clerk of the 

Board, 1615 M Street NW., Washington, 

DC 20419; 

(2) Set forth the text or substance of 

the rule or amendment proposed or 

specify the rule sought to be repealed; 

(3) Explain the petitioner’s interest in 

the action sought; and 

(4) Set forth all data and arguments 

available to the petitioner in support of 

the action sought. 

(b) No public procedures will be held 

on the petition before its disposition. 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 under the Administrative 

Procedure Act. If the Board finds that 

the petition does not contain adequate 

justification, the petition will be denied 

by letter or other notice, with a brief 

statement of the ground for denial. The 

Board may consider new evidence at 

any time; however, repetitious petitions 

for rulemaking will not be considered. 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 3. The authority citation for 5 CFR 

part 1201 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

■ 4. In § 1201.3, revise paragraph (a) to 

read as follows: 

§ 1201.3 Appellate Jurisdiction. 

(a) Generally. The Board’s appellate 

jurisdiction is limited to those matters 

over which it has been given 

jurisdiction by law, rule, or regulation. 

The Board’s jurisdiction does not 

depend solely on the label or nature of 

the action or decision taken or made but 

may also depend on the type of Federal 

appointment the individual received, 

e.g., competitive or excepted service, 

whether an individual is preference 

eligible, and other factors. Accordingly, 

the laws and regulations cited below, 

which are the source of the Board’s 

jurisdiction, should be consulted to 

determine not only the nature of the 

actions or decisions that are appealable, 

but also the limitations as to the types 

of employees, former employees, or 

applicants for employment who may 

assert them. Instances in which a law or 

regulation authorizes the Board to hear 

an appeal or claim include the 

following: 

(1) Adverse Actions. Removals 

(terminations of employment after 

completion of probationary or other 

initial service period), reductions in 

grade or pay, suspension for more than 

14 days, or furloughs for 30 days or less 

for cause that will promote the 

efficiency of the service; an involuntary 

resignation or retirement is considered 

to be a removal (5 U.S.C. 7511–7514; 5 

CFR part 752, subparts C and D); 

(2) Retirement Appeals. 

Determinations affecting the rights or 

interests of an individual under the 

Federal retirement laws (5 U.S.C. 

8347(d)(1)–(2) and 8461(e)(1); and 5 

U.S.C. 8331 note; 5 CFR parts 831, 839, 

842, 844, and 846); 

(3) Termination of Probationary 

Employment. Appealable issues are 

limited to a determination that the 

termination was motivated by partisan 

political reasons or marital status, and/ 

or if the termination was based on a preappointment reason, whether the agency 

failed to take required procedures. 

These appeals are not generally 

available to employees in the excepted 

service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 

315.806 & 315.908(b)); 

(4) Restoration to Employment 

Following Recovery from a WorkRelated Injury. Failure to restore, 

improper restoration of, or failure to 

return following a leave of absence 

following recovery from a compensable 

injury. (5 CFR 353.304); 

(5) Performance-Based Actions Under 

Chapter 43. Reduction in grade or 

removal for unacceptable performance 

(5 U.S.C. 4303(e); 5 CFR part 432); 

(6) Reduction in Force. Separation, 

demotion, or furlough for more than 30 

days, when the action was effected 

because of a reduction in force (5 CFR 

351.901); Reduction-in-force action 

affecting a career or career candidate 

appointee in the Foreign Service (22 

U.S.C. 4011); 

(7) Employment Practices Appeal. 

Employment practices administered by 

the Office of Personnel Management to 

examine and evaluate the qualifications 

of applicants for appointment in the 

competitive service (5 CFR 300.104); 

(8) Denial of Within-Grade Pay 

Increase. Reconsideration decision 

sustaining a negative determination of 

competence for a general schedule 

employee (5 U.S.C. 5335(c); 5 CFR 

531.410); 

(9) Suitability Action. Action based on 

suitability determinations, which relate 

to an individual’s character or conduct 

that may have an impact on the integrity 

or efficiency of the service. Suitability 

actions include the cancellation of 

eligibility, removal, cancellation of 

reinstatement eligibility, and 

debarment. A non-selection or 

cancellation of eligibility for a specific 

position based on an objection to an 

eligible or a pass over of a preference 

eligible under 5 CFR 332.406 is not a 

suitability action. (5 CFR 731.501, 

731.203, 731.101(a)); 

(10) Various Actions Involving the 

Senior Executive Service. Removal or 

suspension for more than 14 days (5 

U.S.C. 7543(d) and 5 CFR 752.605); 

Reduction-in-force action affecting a 

career appointee (5 U.S.C. 3595); or 

Furlough of a career appointee (5 CFR 

359.805); and 

(11) Miscellaneous Restoration and 

Reemployment Matters. 

(i) Failure to afford reemployment 

priority rights pursuant to a 

Reemployment Priority List following 

separation by reduction in force (5 CFR 

330.214); 

(ii) Full recovery from a compensable 

injury after more than 1 year, because of 

the employment of another person (5 

CFR 302.501); 

(iii) Failure to reinstate a former 

employee after service under the 

Foreign Assistance Act of 1961 (5 CFR 

352.508); 

(iv) Failure to re-employ a former 

employee after movement between 

executive agencies during an emergency 

(5 CFR 352.209); 

(v) Failure to re-employ a former 

employee after detail or transfer to an 

international organization (5 CFR 

352.313); 

(vi) Failure to re-employ a former 

employee after service under the Indian 

Self-Determination Act (5 CFR 352.707); 

or 


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(vii) Failure to re-employ a former 

employee after service under the 

Taiwan Relations Act (5 CFR 352.807). 

* * * * * 

■ 5. In § 1201.4 revise paragraphs (a) 

and (j) and add new paragraph (o) to 

read as follows: 

§ 1201.4 General definitions. 

(a) Judge. Any person authorized by 

the Board to hold a hearing or to decide 

a case without a hearing, including the 

Board or any member of the Board, or 

an administrative law judge appointed 

under 5 U.S.C. 3105 or other employee 

of the Board designated by the Board to 

hear such cases, except that in any case 

involving a removal from the service, 

the case shall be heard by the Board, an 

employee experienced in hearing 

appeals, or an administrative law judge. 

* * * * * 

(j) Date of service. ‘‘Date of service’’ 

has the same meaning as ‘‘date of filing’’ 

under paragraph (l) of this section. 

* * * * * 

(o) Grievance. A complaint by an 

employee or labor organization under a 

negotiated grievance procedure covered 

by 5 U.S.C. 7121. 

■ 6. In § 1201.14 revise paragraphs (c) 

and (m)(1) to read as follows: 

§ 1201.14 Electronic Filing Procedures. 

* * * * * 

(c) Matters excluded from electronic 

filing. Electronic filing may not be used 

to: 

(1) File a request to hear a case as a 

class appeal or any opposition thereto 

(§ 1201.27); 

(2) Serve a subpoena (§ 1201.83); 

(3) File a pleading with the Special 

Panel (§ 1201.137); 

(4) File a pleading that contains 

Sensitive Security Information (SSI) (49 

CFR parts 15 and 1520); 

(5) File a pleading that contains 

classified information (32 CFR part 

2001); or 

(6) File a request to participate as an 

amicus curiae or file a brief as amicus 

curiae pursuant to § 1201.34 of this part. 

* * * * * 

(m) * * * 

(1) As provided in § 1201.4(l) of this 

Part, the date of filing for pleadings filed 

via e-Appeal Online is the date of 

electronic submission. All pleadings 

filed via e-Appeal Online are time 

stamped with Eastern Time, but the 

timeliness of a pleading will be 

determined based on the time zone from 

which the pleading was submitted. For 

example, a pleading filed at 11 p.m. 

Pacific Time on August 20 will be 

stamped by e-Appeal Online as being 

filed at 2 a.m. Eastern Time on August 

21. However, if the pleading was 

required to be filed with the Washington 

Regional Office (in the Eastern Time 

Zone) on August 20, it would be 

considered timely, as it was submitted 

prior to midnight Pacific Time on 

August 20. 

* * * * * 

■ 7. In § 1201.21 revise paragraphs (d) 

introductory text, (d)(2), (d)(3) and add 

new paragraphs (d)(4), (e) and (f) to read 

as follows: 

§ 1201.21 Notice of appeal rights. 

* * * * * 

(d) Notice of any right the employee 

has to file a grievance or seek corrective 

action under subchapters II and III of 5 

U.S.C. chapter 12, including: 

* * * * * 

(2) Whether both an appeal to the 

Board and a grievance may be filed on 

the same matter and, if so, the 

circumstances under which proceeding 

with one will preclude proceeding with 

the other, and specific notice that filing 

a grievance will not extend the time 

limit for filing an appeal with the Board; 

(3) Whether there is any right to 

request Board review of a final decision 

on a grievance in accordance with 

§ 1201.155 of this part; and 

(4) The effect of any election under 5 

U.S.C. 7121(g), including the effect that 

seeking corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12 will have on the employee’s appeal 

rights before the Board. 

(e) Notice of any right the employee 

has to file a complaint with the Equal 

Employment Opportunity Commission 

or to grieve allegations of unlawful 

discrimination, consistent with the 

provisions of 5 U.S.C. 7121(d) and 29 

CFR 1614.301 and 1614.302. 

(f) The name or title and contact 

information for the agency official to 

whom the Board should send the 

Acknowledgment Order and copy of the 

appeal in the event the employee files 

an appeal with the Board. Contact 

information should include the official’s 

mailing address, email address, 

telephone and fax numbers. 

■ 8. In § 1201.22, add paragraph (b)(3) to 

read as follows: 

§ 1201.22 Filing an appeal and responses 

to appeals. 

* * * * * 

(b) * * * 

(3) An appellant is responsible for 

keeping the agency informed of his or 

her current home address for purposes 

of receiving the agency’s decision, and 

correspondence which is properly 

addressed and sent to the appellant’s 

address via postal or commercial 

delivery is presumed to have been duly 

delivered to the addressee. While such 

a presumption may be overcome under 

the circumstances of a particular case, 

an appellant may not avoid service of a 

properly addressed and mailed decision 

by intentional or negligent conduct 

which frustrates actual service. The 

appellant may also be deemed to have 

received the agency’s decision if it was 

received by a designated representative 

or a person of suitable age and 

discretion residing with the appellant. 

The following examples illustrate the 

application of this rule: 

Example A: An appellant who fails to pick 

up mail delivered to his or her post office box 

may be deemed to have received the agency 

decision. 

Example B: An appellant who did not 

receive his or her mail while in the hospital 

may overcome the presumption of actual 

receipt. 

Example C: An appellant may be deemed 

to have received an agency decision received 

by his or her roommate. 

* * * * * 

■ 9. Revise § 1201.23 to read as follows: 

§ 1201.23 Computation of time. 

In computing the number of days 

allowed for complying with any 

deadline, the first day counted is the 

day after the event from which the time 

period begins to run. If the date that 

ordinarily would be the last day for 

filing falls on a Saturday, Sunday, or 

Federal holiday, the filing period will 

include the first workday after that date. 

Unless a different deadline is specified 

by the Board or its designee, 5 days are 

added to a party’s deadline for 

responding to a document served on the 

party by mail. 

Example 1: If an employee receives a 

decision notice that is effective on July 1, the 

30-day period for filing an appeal starts to 

run on July 2. The filing ordinarily would be 

timely only if it is made by July 31. If July 

31 is a Saturday, however, the last day for 

filing would be Monday, August 2. 

Example 2: The judge orders the appellant 

to file a response to a jurisdictional order no 

later than October 15, 2012, and that the 

agency’s response is due 10 days after the 

filing of the appellant’s pleading. If the 

appellant serves the agency with a pleading 

via regular mail on October 15, the agency’s 

deadline for filing a response will be October 

30, not October 25. 

■ 10. In § 1201.24, revise paragraphs 

(a)(7) and (d) to read as follows: 

§ 1201.24 Content of an appeal; right to 

hearing. 

(a) * * * 

(7) Where applicable, a copy of the 

notice of proposed action, the agency 

decision being appealed and, if 

available, the SF–50 or similar notice of 


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personnel action. No other attachments 

should be included with the appeal, as 

the agency will be submitting the 

documents required by 1201.25 of this 

part, and there will be several 

opportunities to submit evidence and 

argument after the appeal is filed. An 

appellant should not miss the deadline 

for filing merely because he or she does 

not currently have all of the documents 

specified in this section. 

* * * * * 

(d) Right to hearing. An appellant 

generally has a right to a hearing on the 

merits if the appeal has been timely 

filed and the Board has jurisdiction over 

the appeal. 

* * * * * 

■ 11. Revise § 1201.28 to read as 

follows: 

§ 1201.28 Case suspension procedures. 

(a) Suspension period. The judge may 

issue an order suspending the 

processing of an appeal for up to 30 

days. The judge may grant a second 

order suspending the processing of an 

appeal for up to an additional 30 days. 

(b) Early termination of suspension 

period. The administrative judge may 

terminate the suspension period upon 

joint request of the parties or where the 

parties request the judge’s assistance 

and the judge’s involvement is likely to 

be extensive. 

(c) Termination of suspension period. 

If the final day of any suspension period 

falls on a day on which the Board is 

closed for business, adjudication shall 

resume as of the first business day 

following the expiration of the period. 

(d) Mediation. Whenever an appeal is 

accepted into the Board’s Mediation 

Appeals Program (MAP), the processing 

of the appeal and all deadlines are 

suspended until the mediator returns 

the case to the judge. This provision 

does not apply where the parties enter 

into other forms of alternative dispute 

resolution. 

■ 12. Add § 1201.29 as follows: 

§ 1201.29 Dismissal without prejudice. 

(a) In general. Dismissal without 

prejudice is a procedural option that 

allows for the dismissal and subsequent 

refiling of an appeal. 

(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, and may be granted when the 

interests of fairness, due process, and 

administrative efficiency outweigh any 

prejudice to either party. 

(c) Refiling. Except in certain 

USERRA appeals under Part 1208 

involving the use of military leave, 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 automatically refiled 

by the judge as of a date certain. When 

a dismissal without prejudice is issued 

over the objection of the appellant, the 

appeal will be automatically refiled as 

of a date certain. 

(d) Waiver. When a dismissed appeal 

must be refiled by the appellant, 

requests for waiver of a late filing based 

upon good cause will be liberally 

construed. 

■ 13. In § 1201.31, revise paragraphs (b) 

and (d) as follows: 

§ 1201.31 Representatives. 

* * * * * 

(b) A party may choose any 

representative as long as that person is 

willing and available to serve. The other 

party or parties may challenge the 

designation, however, on the ground 

that it involves a conflict of interest or 

a conflict of position. Any party who 

challenges the designation must do so 

by filing a motion with the judge within 

15 days after the date of service of the 

notice of designation or 15 days after a 

party becomes aware of the conflict. The 

judge will rule on the motion before 

considering the merits of the appeal. 

These procedures apply equally to each 

designation of representative, regardless 

of whether the representative was the 

first one designated by a party or a 

subsequently designated representative. 

If a representative is disqualified, the 

judge will give the party whose 

representative was disqualified a 

reasonable time to obtain another one. 

* * * * * 

(d) As set forth in paragraphs (d) and 

(e) of § 1201.43 of this part, a judge may 

exclude a representative from all or any 

portion of the proceeding before him or 

her for contumacious conduct or 

conduct prejudicial to the 

administration of justice. 

* * * * * 

■ 14. In § 1201.33, revise paragraph (a) 

to read as follows: 

§ 1201.33 Federal witnesses. 

(a) Every Federal agency or 

corporation, including nonparties, must 

make its employees or personnel 

available to furnish sworn statements or 

to appear at a deposition or hearing 

when ordered by the judge to do so. 

When providing those statements or 

appearing at a deposition or at the 

hearing, Federal employee witnesses 

will be in official duty status (i.e., 

entitled to pay and benefits including 

travel and per diem, where appropriate). 

When a desired witness is employed by 

an agency who is not a party to the 

Board proceeding, the requesting party 

may avail itself of the provisions of 

sections 1201.81 to 1201.85 of this part 

regarding subpoenas to ensure the 

attendance of the witness. In addition, 

the Board and the parties will 

implement this provision, to the 

maximum extent possible, to avoid 

conflict with other regulations 

governing the production of Federal 

employees in matters in litigation. 

* * * * * 

■ 15. In § 1201.34, revise paragraph (e) 

to read as follows: 

§ 1201.34 Intervenors and amicus curiae. 

* * * * * 

(e) Amicus curiae. (1) An amicus 

curiae is a person or organization who, 

although not a party to an appeal, gives 

advice or suggestions by filing a brief 

with the judge or the Board regarding an 

appeal. Any person or organization, 

including those who do not qualify as 

intervenors, may request permission to 

file an amicus brief. The Board may 

solicit amicus briefs on its own motion. 

(2) A request to file an amicus curiae 

brief must include a statement of the 

person’s or organization’s interest in the 

appeal and how the brief will be 

relevant to the issues involved. 

(3) The request may be granted, in the 

discretion of the judge or the Board, if 

the person or organization has a 

legitimate interest in the proceedings, 

and such participation will not unduly 

delay the outcome and may contribute 

materially to the proper disposition 

thereof. 

(4) The amicus curiae shall submit its 

brief within the time limits set by the 

judge or the Board and must comply 

with any further orders by the judge or 

the Board. 

(5) An amicus curiae is not a party to 

the proceeding and may not participate 

in any way in the conduct of the 

hearing, including the presentation of 

evidence or the examination of 

witnesses. The Board, in its discretion, 

may invite an amicus curiae to 

participate in oral argument in 

proceedings in which oral argument is 

scheduled. 

■ 16. In § 1201.36, revise paragraph 

(a)(2) to read as follows: 

§ 1201.36 Consolidating and joining 

appeals. 

(a) * * * 

(2) Joinder occurs when one person 

has filed two or more appeals and they 


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are united for consideration. For 

example, a judge might join an appeal 

challenging a 30-day suspension with a 

pending appeal challenging a 

subsequent removal if the same 

appellant filed both appeals. 

* * * * * 

■ 17. In § 1201.41, revise the first 

sentence of paragraph (b) as follows: 

§ 1201.41 Judges. 

* * * * * 

(b) Authority. Judges will conduct fair 

and impartial hearings and will issue 

timely and clear decisions based on 

statutes and legal precedents. * * * 

* * * * * 

■ 18. In § 1201.42, revise paragraph (a) 

to read as follows: 

§ 1201.42 Disqualifying a Judge. 

(a) If a judge considers himself or 

herself disqualified, he or she will 

withdraw from the case, state on the 

record the reasons for doing so, and 

another judge will be promptly 

assigned. 

* * * * * 

■ 19. In § 1201.43, revise the 

introductory paragraph and add new 

paragraphs (d) and (e) to read as follows: 

§ 1201.43 Sanctions. 

The judge may impose sanctions upon 

the parties as necessary to serve the 

ends of justice. This authority covers, 

but is not limited to, the circumstances 

set forth in paragraphs (a), (b), (c), (d), 

and (e) of this section. Before imposing 

a sanction, the judge shall provide 

appropriate prior warning, allow a 

response to the actual or proposed 

sanction when feasible, and document 

the reasons for any resulting sanction in 

the record. 

* * * * * 

(d) Exclusion of a representative or 

other person. A judge may exclude or 

limit the participation of a 

representative or other person in the 

case for contumacious conduct or 

conduct prejudicial to the 

administration of justice. When the 

judge excludes a party’s representative, 

the judge will afford the party a 

reasonable time to obtain another 

representative before proceeding with 

the case. 

(e) Cancellation, suspension, or 

termination of hearing. A judge may 

cancel a scheduled hearing, or suspend 

or terminate a hearing in progress, for 

contumacious conduct or conduct 

prejudicial to the administration of 

justice on the part of the appellant or 

the appellant’s representative. If the 

judge suspends a hearing, the parties 

must be given notice as to when the 

hearing will resume. If the judge cancels 

or terminates a hearing, the judge must 

set a reasonable time during which the 

record will be kept open for receipt of 

written submissions. 

■ 20. In § 1201.51, revise paragraph (d) 

to read as follows: 

§ 1201.51 Scheduling the hearing. 

* * * * * 

(d) The Board has established certain 

approved hearing locations, which are 

listed on the Board’s public Web site 

(www.mspb.gov). The judge will advise 

parties of these hearing sites as 

appropriate. Parties, for good cause, may 

file motions requesting a different 

hearing location. Rulings on those 

motions will be based on a showing that 

a different location will be more 

advantageous to all parties and to the 

Board. 

■ 21. Revise § 1201.52 to read as 

follows: 

§ 1201.52 Public hearings. 

(a) Closing the hearing. Hearings are 

generally open to the public; however, 

the judge may order a hearing or any 

part of a hearing closed when doing so 

would be in the best interests of a party, 

a witness, the public, or any other 

person affected by the proceeding. Any 

order closing the hearing will set out the 

reasons for the judge’s decision. Any 

objections to the order will be made a 

part of the record. 

(b) Electronic devices. Absent express 

approval from the judge, no two-way 

communications devices may be 

operated and/or powered on in the 

hearing room; all cell phones, text 

devices, and all other two-way 

communications devices shall be 

powered off in the hearing room. 

Further, no cameras, recording devices, 

and/or transmitting devices may be 

operated, operational, and/or powered 

on in the hearing room without the 

consent of the judge. 

■ 22. Revise § 1201.53 to read as 

follows: 

§ 1201.53 Record of proceedings. 

(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. Any party 

may request that the court reporter 

prepare a full or partial transcript, at the 

requesting party’s expense. Judges do 

not prepare transcripts. 

(c) Copies. Copies of recordings or 

existing transcripts will be provided 

upon request to parties free of charge. 

Such requests should be made in 

writing to the adjudicating regional or 

field office, or to the Clerk of the Board, 

as appropriate. Nonparties may request 

a copy of a hearing recording or existing 

transcript under the Freedom of 

Information Act (FOIA) and Part 1204 of 

the Board’s regulations. A nonparty 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. 

Nonparties may also make FOIA 

requests online at https://foia.mspb.gov. 

(d) Corrections to transcript. Any 

discrepancy between the transcript and 

the recording shall be resolved by the 

judge or the Clerk of the Board, as 

appropriate. Corrections to the official 

transcript may be made on motion by a 

party or on the judge’s own motion or 

by the Clerk of the Board, as 

appropriate. Motions for corrections 

must be filed within 10 days after the 

receipt of a transcript. Corrections of the 

official transcript will be made only 

when substantive errors are found by 

the judge or by the Clerk of the Board, 

as appropriate. 

(e) Official record. Hearing exhibits 

and pleadings that have been accepted 

into the record, the official hearing 

record, if a hearing is held, and all 

orders and decisions of the judge and 

the Board, make up the official record 

of the case. Other than the Board’s 

decisions, the official record is not 

available for public inspection and 

copying. The official record is, however, 

subject to requests under both the 

Freedom of Information Act (5 U.S.C. 

552) and the Privacy Act (5 U.S.C. 552a) 

pursuant to the procedures contained in 

5 CFR parts 1204 and 1205. 

■ 23. In § 1201.58, revise paragraph (c) 

and add paragraph (d) to read as 

follows: 

§ 1201.58 Closing the record. 

* * * * * 

(c) Once the record closes, additional 

evidence or argument will ordinarily 

not be accepted unless: 

(1) The party submitting it shows that 

the evidence or argument was not 

readily available before the record 

closed; or 


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(2) It is in rebuttal to new evidence or 

argument submitted by the other party 

just before the record closed. 

(d) The judge will include in the 

record any supplemental citations 

received from the parties or approved 

corrections of the transcript, if one has 

been prepared. 

§ 1201.62 [Removed] 

■ 24. Remove § 1201.62. 

■ 25. Amend § 1201.71 by adding two 

new sentences at the end of the section 

to read as follows: 

§ 1201.71 Purpose of discovery. 

* * * Discovery requests and 

responses thereto are not to be filed in 

the first instance with the Board. They 

are only filed with the Board in 

connection with a motion to compel 

discovery under 1201.73(c) of this part, 

with a motion to subpoena discovery 

under 1201.73(d) of this part, or as 

substantive evidence to be considered in 

the appeal. 

■ 26. Revise § 1201.73 to read as 

follows: 

§ 1201.73 Discovery procedures. 

(a) Initiating discovery. A party 

seeking discovery must start the process 

by serving a request for discovery on the 

representative of the party or nonparty, 

or, if there is no representative, on the 

party or nonparty themselves. The 

request for discovery must state the time 

limit for responding, as prescribed in 

1201.73(d) of this part, and must specify 

the time and place of the taking of the 

deposition, if applicable. When a party 

directs a request for discovery to the 

official or employee of a Federal agency 

that is a party, the agency must make 

the officer or employee available on 

official time to respond to the request 

and must assist the officer or employee 

as necessary in providing relevant 

information that is available to the 

agency. 

(b) Responses to discovery requests. A 

party or nonparty must answer a 

discovery request within the time 

provided under paragraph (d)(2) of this 

section, either by furnishing to the 

requesting party the information 

requested or agreeing to make 

deponents available to testify within a 

reasonable time, or by stating an 

objection to the particular request and 

the reasons for the objection. Parties and 

nonparties may respond to discovery 

requests by electronic mail if authorized 

by the requesting party. 

(c) Motions to compel or issue a 

subpoena. (1) If a party fails or refuses 

to respond in full to a discovery request, 

the requesting party may file a motion 

to compel discovery. If a nonparty fails 

or refuses to respond in full to a 

discovery request, the requesting party 

may file a motion for the issuance of a 

subpoena directed to the individual or 

entity from which the discovery is 

sought under the procedures described 

in 1201.81 of this part. The requesting 

party must serve a copy of the motion 

on the other party or nonparty. Before 

filing any motion to compel or issue a 

subpoena, the moving party shall 

discuss the anticipated motion with the 

opposing party or nonparty, and all 

those involved shall make a good faith 

effort to resolve the discovery dispute 

and narrow the areas of disagreement. 

The motion shall include: 

(i) A copy of the original request and 

a statement showing that the 

information sought is discoverable 

under section 1201.72; 

(ii) A copy of the response to the 

request (including the objections to 

discovery) or, where appropriate, a 

statement that no response has been 

received, along with an affidavit or 

sworn statement under 28 U.S.C. 1746 

supporting the statement (See appendix 

IV to part 1201); and 

(iii) A statement that the moving party 

has discussed or attempted to discuss 

the anticipated motion with the 

nonmoving party or nonparty and made 

a good faith effort to resolve the 

discovery dispute and narrow the areas 

of disagreement. 

(2) The party or nonparty from whom 

discovery was sought may respond to 

the motion to compel or the motion to 

issue a subpoena within the time limits 

stated in paragraph (d)(3) of this section. 

(d) Time limits. (1) Unless otherwise 

directed by the judge, parties must serve 

their initial discovery requests within 

30 days after the date on which the 

judge issues an order to the respondent 

agency to produce the agency file and 

response. 

(2) A party or nonparty must serve a 

response to a discovery request 

promptly, but not later than 20 days 

after the date of service of the request or 

order of the judge. Any discovery 

requests following the initial request 

must be served within 10 days of the 

date of service of the prior response, 

unless the parties are otherwise directed 

by the judge. Deposition witnesses must 

give their testimony at the time and 

place stated in the request for 

deposition or in the subpoena, unless 

the parties agree on another time or 

place. 

(3) Any motion for an order to compel 

or issue a subpoena must be filed with 

the judge within 10 days of the date of 

service of objections or, if no response 

is received, within 10 days after the 

time limit for response has expired. Any 

pleading in opposition to a motion to 

compel or subpoena discovery must be 

filed with the judge within 10 days of 

the date of service of the motion. 

(4) Discovery must be completed 

within the time period designated by 

the judge or, if no such period is 

designated, no later than the prehearing 

or close of record conference. 

(e) Limits on the number of discovery 

requests. (1) Absent prior approval by 

the judge, interrogatories served by 

parties upon another party or a nonparty 

may not exceed 25 in number, including 

all discrete subparts. 

(2) Absent prior approval by the judge 

or agreement by the parties, each party 

may not take more than 10 depositions. 

(3) Requests to exceed the limitations 

set forth in paragraphs (e)(1) and (e)(2) 

of this section may be granted at the 

discretion of the judge. In considering 

such requests, the judge shall consider 

the factors identified in § 1201.72(d) of 

this part. 

■ 27. In 1201.81, revise paragraph (c) to 

read as follows: 

§ 1201.81 Requests for subpoenas. 

* * * * * 

(c) Relevance. The request must be 

supported by a showing that the 

evidence sought is directly material to 

the issues involved in the appeal. 

* * * * * 

■ 28. In § 1201.93, revise paragraph (c) 

to read as follows: 

§ 1201.93 Procedures. 

* * * * * 

(c) Stay of Appeal. The judge has the 

authority to proceed with or to stay the 

processing of the appeal while an 

interlocutory appeal is pending with the 

Board. The passage of time during any 

stay granted under this section is not 

deemed, or accounted for, as a case 

suspension under § 1201.28 of this part. 

If the judge does not stay the appeal, the 

Board may do so while an interlocutory 

appeal is pending with it. 

■ 29. In § 1201.101, revise paragraph 

(b)(2) to read as follows: 

§ 1201.101 Explanation and definitions. 

* * * * * 

(b) * * * 

(2) Decision-making official means 

any judge, officer, or other employee of 

the Board designated to hear and decide 

cases except when such judge, officer, 

or other employee of the Board is 

serving as a mediator or settlement 

judge who is not the adjudicating judge. 

■ 30. In § 1201.111, revise paragraph (a) 

to read as follows: 


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§ 1201.111 Initial decision by judge. 

(a) The judge will prepare an initial 

decision after the record closes and will 

serve that decision on all parties to the 

appeal, including named parties, 

permissive intervenors, and intervenors 

of right. The Board satisfies its legal 

obligation under 5 U.S.C. 7701(b)(1) by 

making electronic copies of initial 

decisions available to the Office of 

Personnel Management. 

* * * * * 

■ 31. In § 1201.112, revise paragraph 

(a)(4) to read as follows: 

§ 1201.112 Jurisdiction of judge. 

(a) * * * 

(4) Vacate an initial decision to accept 

into the record a settlement agreement 

that is filed prior to the deadline for 

filing a petition for review but is not 

received until after the date when the 

initial decision becomes final under 

1201.113 of this part. 

* * * * * 

■ 32. In § 1201.113, revise the 

introductory text, paragraph (a) and add 

paragraph (f) to read as follows: 

§ 1201.113 Finality of decision. 

The initial decision of the judge will 

become the Board’s final decision 35 

days after issuance. Initial decisions are 

not precedential. 

(a) Exceptions. The initial decision 

will not become the Board’s final 

decision if within the time limit for 

filing specified in 1201.114 of this part, 

any party files a petition for review or, 

if no petition for review is filed, files a 

request that the initial decision be 

vacated for the purpose of accepting a 

settlement agreement into the record. 

* * * * * 

(f) When the Board, by final decision 

or order, finds there is reason to believe 

a current Federal employee may have 

committed a prohibited personnel 

practice described at 5 U.S.C. 

2302(b)(8), the Board will refer the 

matter to the Special Counsel to 

investigate and take appropriate action 

under 5 U.S.C. 1215. 

* * * * * 

■ 33. Revise § 1201.114 as follows: 

§ 1201.114 Petition and cross petition for 

review—content and procedure. 

(a) Pleadings allowed. Pleadings 

allowed on review include a petition for 

review, a cross petition for review, a 

response to a petition for review, a 

response to a cross petition for review, 

and a reply to a response to a petition 

for review. 

(1) A petition for review is a pleading 

in which a party contends that an initial 

decision was incorrectly decided in 

whole or in part. 

(2) A cross petition for review has the 

same meaning as a petition for review 

but is used to describe a pleading that 

is filed by a party when another party 

has already filed a timely petition for 

review. 

(3) A response to a petition for review 

and a cross petition for review may be 

contained in a single pleading. 

(4) A reply to a response to a petition 

for review is limited to the factual and 

legal issues raised by another party in 

the response to the petition for review. 

It may not raise new allegations of error. 

(5) No pleading other than the ones 

described in this paragraph will be 

accepted unless the party files a motion 

with and obtains leave from the Clerk of 

the Board. The motion must describe 

the nature of and need for the pleading. 

(b) Contents of petition or cross 

petition for review. A petition or cross 

petition for review states a party’s 

objections to the initial decision, 

including all of the party’s legal and 

factual arguments, and must be 

supported by references to applicable 

laws or regulations and by specific 

references to the record. Any petition or 

cross petition for review that contains 

new evidence or argument must include 

an explanation of why the evidence or 

argument was not presented before the 

record below closed (see § 1201.58 of 

this part). A petition or cross petition for 

review should not include documents 

that were part of the record below, as 

the entire administrative record will be 

available to the Board. 

(c) Who may file. Any party to the 

proceeding, the Director of the Office of 

Personnel Management (OPM), or the 

Special Counsel (under 5 U.S.C. 

1212(c)) may file a petition or cross 

petition for review. The Director of OPM 

may request review only if he or she 

believes that the decision is erroneous 

and will have a substantial impact on 

any civil service law, rule, or regulation 

under OPM’s jurisdiction. 5 U.S.C. 

7701(e)(2). All submissions to the Board 

must contain the signature of the party 

or of the party’s designated 

representative. 

(d) Place for filing. All pleadings 

described in paragraph (a) and all 

motions and pleadings associated with 

them must be filed with the Clerk of the 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419, by 

commercial or personal delivery, by 

facsimile, by mail, or by electronic filing 

in accordance with 1201.14 of this part. 

(e) Time for filing. Any petition for 

review must be filed within 35 days 

after the date of issuance of the initial 

decision or, if the petitioner shows that 

the initial decision was received more 

than 5 days after the date of issuance, 

within 30 days after the date the 

petitioner received the initial decision. 

For purposes of this section, the date 

that the petitioner receives the initial 

decision is determined according to the 

standard set forth at § 1201.22(b)(3) of 

this part, pertaining to an appellant’s 

receipt of a final agency decision. If the 

petitioner is represented, the 30-day 

time period begins to run upon receipt 

of the initial decision by either the 

representative or the petitioner, 

whichever comes first. A cross petition 

for review must be filed within 25 days 

of the date of service of the petition for 

review. Any response to a petition or 

cross petition for review must be filed 

within 25 days after the date of service 

of the petition or cross petition. Any 

reply to a response to a petition for 

review must be filed within 10 days 

after the date of service of the response 

to the petition for review. 

(f) Extension of time to file. The Board 

will grant a motion for extension of time 

to file a pleading described in paragraph 

(a) only if the party submitting the 

motion shows good cause. Motions for 

extensions must be filed with the Clerk 

of the Board on or before the date on 

which the petition or other pleading is 

due. The Board, in its discretion, may 

grant or deny those motions without 

providing the other parties the 

opportunity to comment on them. A 

motion for an extension must be 

accompanied by an affidavit or sworn 

statement under 28 U.S.C. 1746. (See 

Appendix IV.) The affidavit or sworn 

statement must include a specific and 

detailed description of the 

circumstances alleged to constitute good 

cause, and it should be accompanied by 

any available documentation or other 

evidence supporting the matters 

asserted. 

(g) Late filings. Any pleading 

described in paragraph (a) of this 

section that is filed late must be 

accompanied by a motion that shows 

good cause for the untimely filing, 

unless the Board has specifically 

granted an extension of time under 

paragraph (f) of this section, or unless a 

motion for extension is pending before 

the Board. The motion must be 

accompanied by an affidavit or sworn 

statement under 28 U.S.C. 1746. (See 

Appendix IV.) The affidavit or sworn 

statement must include: The reasons for 

failing to request an extension before the 

deadline for the submission, and a 

specific and detailed description of the 

circumstances causing the late filing, 

accompanied by supporting 

documentation or other evidence. Any 

response to the motion may be included 


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in the response to the petition for 

review, the cross petition for review, or 

the response to the cross petition for 

review. The response will not extend 

the time provided by paragraph (e) of 

this section to file a cross petition for 

review or to respond to the petition or 

cross petition. In the absence of a 

motion, the Board may, in its discretion, 

determine on the basis of the existing 

record whether there was good cause for 

the untimely filing, or it may provide 

the party that submitted the document 

with an opportunity to show why it 

should not be dismissed or excluded as 

untimely. 

(h) Length limitations. A petition for 

review, a cross petition for review, or a 

response to a petition for review, 

whether computer generated, typed, or 

handwritten, is limited to 30 pages or 

7500 words, whichever is less. A reply 

to a response to a petition for review is 

limited to 15 pages or 3750 words, 

whichever is less. Computer generated 

and typed pleadings must use no less 

than 12 point typeface and 1-inch 

margins and must be double spaced and 

only use one side of a page. The length 

limitation is exclusive of any table of 

contents, table of authorities, 

attachments, and certificate of service. A 

request for leave to file a pleading that 

exceeds the limitations prescribed in 

this paragraph must be received by the 

Clerk of the Board at least 3 days before 

the filing deadline. Such requests must 

give the reasons for a waiver as well as 

the desired length of the pleading and 

are granted only in exceptional 

circumstances. The page and word 

limits set forth above are maximum 

limits. Parties are not expected or 

required to submit pleadings of the 

maximum length. Typically, a wellwritten petition for review is between 5 

and 10 pages long. 

(i) Intervention. (1) By Director of 

OPM. The Director of OPM may 

intervene in a case before the Board 

under the standards stated in 5 U.S.C. 

7701(d). The notice of intervention is 

timely if it is filed with the Clerk of the 

Board within 45 days of the date the 

petition for review was filed. If the 

Director requests additional time for 

filing a brief on intervention, the Board 

may, in its discretion, grant the request. 

A party may file a response to the 

Director’s brief within 15 days of the 

date of service of that brief. The Director 

must serve the notice of intervention 

and the brief on all parties. 

(2) By Special Counsel. (i) Under 5 

U.S.C. 1212(c), the Special Counsel may 

intervene as a matter of right, except as 

provided in paragraph (i)(2)(ii) of this 

section. The notice of intervention is 

timely filed if it is filed with the Clerk 

of the Board within 45 days of the date 

the petition for review was filed. If the 

Special Counsel requests additional 

time for filing a brief on intervention, 

the Board may, in its discretion, grant 

the request. A party may file a response 

to the Special Counsel’s brief within 15 

days of the date of service. The Special 

Counsel must serve the notice of 

intervention and the brief on all parties. 

(ii) The Special Counsel may not 

intervene in an action brought by an 

individual under 5 U.S.C. 1221, or in an 

appeal brought by an individual under 

5 U.S.C. 7701, without the consent of 

that individual. The Special Counsel 

must present evidence that the 

individual has consented to the 

intervention at the time the motion to 

intervene is filed. 

(3) Permissive intervenors. Any 

person, organization, or agency, by 

motion made in a petition for review, 

may ask for permission to intervene. 

The motion must state in detail the 

reasons why the person, organization, or 

agency should be permitted to 

intervene. A motion for permission to 

intervene will be granted if the requester 

shows that he or she will be affected 

directly by the outcome of the 

proceeding. Any person alleged to have 

committed a prohibited personnel 

practice under 5 U.S.C. 2302(b) may ask 

for permission to intervene. 

(j) Service. A party submitting a 

pleading must serve a copy of it on each 

party and on each representative, as 

required by paragraph (b)(2) of 

§ 1201.26. 

(k) Closing the record. The record 

closes on expiration of the period for 

filing the reply to the response to the 

petition for review or on expiration of 

the period for filing a response to the 

cross petition for review, whichever is 

later, or to the brief on intervention, if 

any, or on any other date the Board sets 

for this purpose. Once the record closes, 

no additional evidence or argument will 

be accepted unless the party submitting 

it shows that the evidence was not 

readily available before the record 

closed. 

(l) Rejection for failure to comply. The 

Clerk of the Board may reject material 

submitted for filing that does not 

substantially conform to the procedural 

requirements of this subpart by issuing 

a rejection letter advising the parties of 

the nature of the nonconformity and the 

requirements and deadline for 

resubmission. Any deadlines affected by 

the rejection will be addressed in the 

rejection letter. 

■ 34. Revise § 1201.115 to read as 

follows: 

§ 1201.115 Criteria for granting petition or 

cross petition for review. 

The Board normally will consider 

only issues raised in a timely filed 

petition or cross petition for review. 

Situations in which the Board may grant 

a petition or cross petition for review 

include, but are not limited to, a 

showing that: 

(a) The initial decision contains 

erroneous findings of material fact. 

(1) Any alleged factual error must be 

material, meaning of sufficient weight to 

warrant an outcome different from that 

of the initial decision. 

(2) A petitioner who alleges that the 

judge made erroneous findings of 

material fact must explain why the 

challenged factual determination is 

incorrect and identify specific evidence 

in the record that demonstrates the 

error. In reviewing a claim of an 

erroneous finding of fact, the Board will 

give deference to an administrative 

judge’s credibility determinations when 

they are based, explicitly or implicitly, 

on the observation of the demeanor of 

witnesses testifying at a hearing. 

(b) The initial decision is based on an 

erroneous interpretation of statute or 

regulation or the erroneous application 

of the law to the facts of the case. The 

petitioner must explain how the error 

affected the outcome of the case. 

(c) The judge’s rulings during either 

the course of the appeal or the initial 

decision were not consistent with 

required procedures or involved an 

abuse of discretion, and the resulting 

error affected the outcome of the case. 

(d) New and material evidence or 

legal argument is available that, despite 

the petitioner’s due diligence, was not 

available when the record closed. To 

constitute new evidence, the 

information contained in the 

documents, not just the documents 

themselves, must have been unavailable 

despite due diligence when the record 

closed. 

(e) Notwithstanding the above 

provisions in this section, the Board 

reserves the authority to consider any 

issue in an appeal before it. 

■ 35. Revise § 1201.116 to read as 

follows: 

§ 1201.116 Compliance with orders for 

interim relief. 

(a) Certification of compliance. If the 

appellant was the prevailing party in the 

initial decision and the decision granted 

the appellant interim relief, any petition 

or cross petition for review filed by the 

agency must be accompanied by a 

certification that the agency has 

complied with the interim relief order 

either by providing the required interim 


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relief or by satisfying the requirements 

of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). 

(b) Challenge to certification. If the 

appellant challenges the agency’s 

certification of compliance with the 

interim relief order, the Board will issue 

an order affording the agency the 

opportunity to submit evidence of its 

compliance. The appellant may respond 

to the agency’s submission of evidence 

within 10 days after the date of service 

of the submission. 

(c) Allegation of noncompliance in 

petition or cross petition for review. If an 

appellant or an intervenor files a 

petition or cross petition for review of 

an initial decision ordering interim 

relief and such petition includes a 

challenge to the agency’s compliance 

with the interim relief order, upon order 

of the Board the agency must submit 

evidence that it has provided the 

interim relief required or that it has 

satisfied the requirements of 5 U.S.C. 

7701(b)(2)(A)(ii) and (B). 

(d) Request for dismissal for 

noncompliance with interim relief order. 

If the agency files a petition or cross 

petition for review and has not provided 

the required interim relief, the appellant 

may request dismissal of the agency’s 

petition. Any such request must be filed 

with the Clerk of the Board within 25 

days of the date of service of the 

agency’s petition. A copy of the 

response must be served on the agency 

at the same time it is filed with the 

Board. The agency may respond with 

evidence and argument to the 

appellant’s request to dismiss within 15 

days of the date of service of the request. 

If the appellant files a motion to dismiss 

beyond the time limit, the Board will 

dismiss the motion as untimely unless 

the appellant shows that it is based on 

information not readily available before 

the close of the time limit. 

(e) Effect of failure to show 

compliance with interim relief order. 

Failure by an agency to provide the 

certification required by paragraph (a) of 

this section with its petition or cross 

petition for review, or to provide 

evidence of compliance in response to 

a Board order in accordance with 

paragraphs (b), (c), or (d) of this section, 

may result in the dismissal of the 

agency’s petition or cross petition for 

review. 

(f) Back pay and attorney fees. 

Nothing in this section shall be 

construed to require any payment of 

back pay for the period preceding the 

date of the judge’s initial decision or 

attorney fees before the decision of the 

Board becomes final. 

(g) Allegations of noncompliance after 

a final decision is issued. If the initial 

decision granted the appellant interim 

relief, but the appellant is not the 

prevailing party in the final Board order 

disposing of a petition for review, and 

the appellant believes that the agency 

has not provided full interim relief, the 

appellant may file an enforcement 

petition with the regional office under 

1201.182 of this part. The appellant 

must file this petition within 20 days of 

learning of the agency’s failure to 

provide full interim relief. If the 

appellant prevails in the final Board 

order disposing of a petition for review, 

then any interim relief enforcement 

motion filed will be treated as a motion 

for enforcement of the final decision. 

Petitions under this subsection will be 

processed under 1201.183 of this part. 

■ 36. In § 1201.117, revise paragraph 

(a)(1) to read as follows: 

§ 1201.117 Board decisions; procedures 

for review or reopening. 

(a) * * * 

(1) Issue a decision that decides the 

case; 

* * * * * 

■ 37. Revise § 1201.118 to read as 

follows: 

§ 1201.118 Board reopening of final 

decisions. 

Regardless of any other provision of 

this part, the Board may at any time 

reopen any appeal in which it has 

issued a final order or in which an 

initial decision has become the Board’s 

final decision by operation of law. The 

Board will exercise its discretion to 

reopen an appeal only in unusual or 

extraordinary circumstances and 

generally within a short period of time 

after the decision becomes final. 

§ 1201.119 [Amended] 

■ 38. In § 1201.119(a), (b), and (d), 

remove the words ‘‘final order’’ and 

add, in their place, the words ‘‘final 

decision’’. 

■ 39. In § 1201.122, revise paragraph (b) 

and remove paragraphs (d) and (e) to 

read as follows: 

§ 1201.122 Filing complaint; serving 

documents on parties. 

(a) * * * 

(b) Initial filing and service. The 

Special Counsel must file a copy of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing each 

party or the party’s representative. The 

certificate of service must show the last 

known address, telephone number, and 

facsimile number of each party or 

representative. The Special Counsel 

must serve a copy of the complaint on 

each party and the party’s 

representative, as shown on the 

certificate of service. 

* * * * * 

■ 40. In § 1201.128, revise paragraph (b) 

and remove paragraphs (d) and (e) to 

read as follows: 

§ 1201.128 Filing complaint; serving 

documents on parties. 

* * * * * 

(b) Initial filing and service. The 

Special Counsel must file a copy of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

respondent agency or the agency’s 

representative, and each person on 

whose behalf the corrective action is 

brought. 

* * * * * 

■ 41. In § 1201.134, revise paragraph (d) 

and remove paragraphs (f) and (g) to 

read as follows: 

§ 1201.134 Deciding official; filing stay 

request; serving documents on parties. 

* * * * * 

(d) Initial filing and service. The 

Special Counsel must file a copy of the 

request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

respondent agency or the agency’s 

representative. The certificate of service 

must show the last known address, 

telephone number, and facsimile 

number of the agency or its 

representative. The Special Counsel 

must serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. 

* * * * * 

■ 42. In § 1201.137, revise paragraph (c) 

and remove paragraphs (e) and (f) to 

read as follows: 

§ 1201.137 Covered actions; filing 

complaint; serving documents on parties. 

* * * * * 

(c) Initial filing and service. The 

agency must file a copy of the 

complaint, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing each 

party or the party’s representative. The 

certificate of service must show the last 

known address, telephone number, and 

facsimile number of each party or 

representative. The agency must serve a 

copy of the complaint on each party and 

the party’s representative, as shown on 

the certificate of service. 

* * * * * 

■ 43. Revise § 1201.142 to read as 

follows: 


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§ 1201.142 Actions filed by administrative 

law judges. 

An administrative law judge who 

alleges a constructive removal or other 

action by an agency in violation of 5 

U.S.C. 7521 may file a complaint with 

the Board under this subpart. The filing 

and service requirements of § 1201.137 

of this part apply. Such complaints shall 

be adjudicated in the same manner as 

agency complaints under this subpart. 

■ 44. In § 1201.143, revise paragraph (c) 

and remove paragraphs (e) and (f) to 

read as follows: 

§ 1201.143 Right to hearing; filing 

complaint; serving documents on parties. 

* * * * * 

(c) Initial filing and service. Except 

when filed electronically under 1201.14, 

the appointee must file two copies of 

the request, together with numbered and 

tabbed exhibits or attachments, if any, 

and a certificate of service listing the 

agency proposing the appointee’s 

removal or the agency’s representative. 

The certificate of service must show the 

last known address, telephone number, 

and facsimile number of the agency or 

its representative. The appointee must 

serve a copy of the request on the 

agency or its representative, as shown 

on the certificate of service. 

* * * * * 

■ 45. In § 1201.153, revise paragraph 

(a)(2) to read as follows: 

§ 1201.153 Contents of appeal. 

(a) * * * 

(2) The appeal must state whether the 

appellant has filed a grievance under a 

negotiated grievance procedure or a 

formal discrimination complaint with 

any agency regarding the matter being 

appealed to the Board. If he or she has 

done so, the appeal must state the date 

on which the appellant filed the 

complaint or grievance, and it must 

describe any action that the agency took 

in response to the complaint or 

grievance. 

* * * * * 

■ 46. In § 1201.154, revise the section 

heading and introductory paragraph, 

and remove paragraph (d) and (e) to 

read as follows: 

§ 1201.154 Time for filing appeal. 

For purposes of this section, the date 

an appellant receives the agency’s 

decision is determined according to the 

standard set forth at 1201.22(b)(3) of this 

part. Appellants who file appeals raising 

issues of prohibited discrimination in 

connection with a matter otherwise 

appealable to the Board must comply 

with the following time limits: 

* * * * * 

■ 47. Revise § 1201.155 to read as 

follows: 

§ 1201.155 Requests for review of 

arbitrators’ decisions. 

(a) Source and applicability. (1) 

Under paragraph (d) of 5 U.S.C. 7121, an 

employee who believes he or she has 

been subjected to discrimination within 

the meaning of 5 U.S.C. 2302(b)(1), and 

who may raise the matter under either 

a statutory procedure such as 5 U.S.C. 

7701 or under a negotiated grievance 

procedure, must make an election 

between the two procedures. The 

election of the negotiated grievance 

procedure ‘‘in no manner prejudices’’ 

the employee’s right to request Board 

review of the final decision pursuant to 

5 U.S.C. 7702. Subsection (a)(1) of 

section 7702 provides that, 

‘‘[n]otwithstanding any other provision 

of law,’’ when an employee who has 

been subjected to an action that is 

appealable to the Board and who alleges 

that the action was the result of 

discrimination within the meaning of 5 

U.S.C. 2302(b)(1), the Board will decide 

both the issue of discrimination and the 

appealable action in accordance with 

the Board’s appellate procedures under 

section 7701. 

(2) This section does not apply to 

employees of the Postal Service or to 

other employees excluded from the 

coverage of the Federal labor 

management laws at chapter 71 of title 

5, United States Code. 

(b) When filed. The appellant’s 

request for Board review must be filed 

within 35 days after the date of issuance 

of the decision or, if the appellant 

shows that he or she received the 

decision more than 5 days after the date 

of issuance, within 30 days after the 

date the appellant received the decision. 

(c) Scope of Board Review. If the 

negotiated grievance procedure permits 

allegations of discrimination, the Board 

will review only those claims of 

discrimination that were raised in the 

negotiated grievance procedure. If the 

negotiated grievance procedure does not 

permit allegations of discrimination to 

be raised, the appellant may raise such 

claims before the Board. 

(d) Contents. The appellant must file 

the request with the Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419. The 

request for review must contain: 

(1) A statement of the grounds on 

which review is requested; 

(2) References to evidence of record or 

rulings related to the issues before the 

Board; 

(3) Arguments in support of the stated 

grounds that refer specifically to 

relevant documents and that include 

relevant citations of authority; and 

(4) Legible copies of the final 

grievance or arbitration decision, the 

agency decision to take the action, and 

other relevant documents. Those 

documents may include a transcript or 

recording of the hearing. 

(e) Development of the Record. The 

Board, in its discretion, may develop the 

record as to a claim of prohibited 

discrimination by ordering the parties to 

submit additional evidence or 

forwarding the request for review to a 

judge to conduct a hearing. 

(f) Closing of the Record. The record 

will close upon expiration of the period 

for filing the response to the request for 

review, or to the brief on intervention, 

if any, or on any other date the Board 

sets for this purpose. Once the record 

closes, no additional evidence or 

argument will be accepted unless the 

party submitting it shows that the 

evidence was not readily available 

before the record closed. 

■ 48. Revise § 1201.181 to read as 

follows: 

§ 1201.181 Authority and explanation. 

(a) Authority. Under 5 U.S.C. 

1204(a)(2), the Board has the authority 

to order any Federal agency or employee 

to comply with decisions and orders 

issued under its jurisdiction and the 

authority to enforce compliance with its 

orders and decisions. The Board’s 

decisions and orders, when appropriate, 

will contain a notice of the Board’s 

enforcement authority. 

(b) Requirements for parties. The 

parties are expected to cooperate fully 

with each other so that compliance with 

the Board’s orders and decisions can be 

accomplished promptly and in 

accordance with the laws, rules, and 

regulations that apply to individual 

cases. Agencies must promptly inform 

an appellant of actions taken to comply 

and must inform the appellant when it 

believes compliance is complete. 

Appellants must provide agencies with 

all information necessary for 

compliance and should monitor the 

agency’s progress towards compliance. 

■ 49. In § 1201.182, revise paragraphs 

(a) and (b) as follows: 

§ 1201.182 Petition for enforcement. 

(a) Appellate jurisdiction. Any party 

may petition the Board for enforcement 

of a final decision or order issued under 

the Board’s appellate jurisdiction, or for 

enforcement of the terms of a settlement 

agreement that has been entered into the 

record for the purpose of enforcement in 

an order or decision under the Board’s 

appellate jurisdiction. The petition must 


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be filed promptly with the regional or 

field office that issued the initial 

decision; a copy of it must be served on 

the other party or that party’s 

representative; and it must describe 

specifically the reasons the petitioning 

party believes there is noncompliance. 

The petition also must include the date 

and results of any communications 

regarding compliance. Any petition for 

enforcement that is filed more than 30 

days after the date of service of the 

agency’s notice that it has complied 

must contain a statement and evidence 

showing good cause for the delay and a 

request for an extension of time for 

filing the petition. 

(b) Original jurisdiction. Any party 

seeking enforcement of a final Board 

decision or order issued under its 

original jurisdiction or enforcement of 

the terms of settlement agreement 

entered into the record for the purpose 

of enforcement in an order or decision 

issued under its original jurisdiction 

must file a petition for enforcement with 

the Clerk of the Board and must serve 

a copy of that petition on the other party 

or that party’s representative. The 

petition must describe specifically the 

reasons why the petitioning party 

believes there is noncompliance. 

* * * * * 

■ 50. In § 1201.183, revise paragraphs 

(a)(2), (a)(5) through (a)(7), (b), (c), (d), 

and add paragraphs (a)(8), (e), and (f) as 

follows: 

§ 1201.183 Procedures for processing 

petitions for enforcement. 

(a) * * * 

(2) If the agency is the alleged 

noncomplying party, it shall submit the 

name, title, grade, and address of the 

agency official charged with complying 

with the Board’s order, and inform such 

official in writing of the potential 

sanction for noncompliance as set forth 

in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even 

if the agency asserts it has fully 

complied. The agency must advise the 

Board of any change to the identity or 

location of this official during the 

pendency of any compliance 

proceeding. In the absence of this 

information, the Board will presume 

that the highest ranking appropriate 

agency official who is not appointed by 

the President by and with the consent 

of the Senate is charged with 

compliance. 

* * * * * 

(5) If the judge finds that the alleged 

noncomplying party has not taken all 

actions required to be in full compliance 

with the final decision, the judge will 

issue an initial decision resolving all 

issues raised in the petition for 

enforcement and identifying the specific 

actions the noncomplying party must 

take to be in compliance with the 

Board’s final decision. A copy of the 

initial decision will be served on the 

responsible agency official. 

(6) If an initial decision described 

under paragraph (a)(5) of this section is 

issued, the party found to be in 

noncompliance must do the following: 

(i) To the extent that the party decides 

to take the actions required by the initial 

decision, the party must submit to the 

Clerk of the Board, within the time limit 

for filing a petition for review under 

§ 1201.114(e) of this part, a statement 

that the party has taken the actions 

identified in the initial decision, along 

with evidence establishing that the 

party has taken those actions. The 

narrative statement must explain in 

detail why the evidence of compliance 

satisfies the requirements set forth in 

the initial decision. 

(ii) To the extent that the party 

decides not to take all of the actions 

required by the initial decision, the 

party must file a petition for review 

under the provisions of §§ 1201.114 and 

1201.115 of this part. 

(iii) The responses required by the 

preceding two paragraphs may be filed 

separately or as a single pleading. 

(7) If the agency is the party found to 

be in noncompliance, it must advise the 

Board, as part of any submission under 

this paragraph, of any change in the 

identity or location of the official 

responsible for compliance previously 

provided pursuant to paragraph (a)(2) of 

this section. 

(8) The complying party may file 

evidence and argument in response to 

any submission described in paragraph 

(a)(6) of this section by filing opposing 

evidence and argument with the Clerk 

of the Board within 20 days of the date 

such submission is filed. 

(b) Final Decision of noncompliance. 

If a party found to be in noncompliance 

under paragraph (a)(5) of this section 

does not file a timely pleading with the 

Clerk of the Board as required by 

paragraph (a)(6) of this section, the 

findings of noncompliance become final 

and the case will be processed under the 

enforcement provisions of paragraph 

(c)(1) of this section. 

(c) Consideration by the Board. (1) 

Following review of the initial decision 

and the written submissions of the 

parties, the Board will render a final 

decision on the issues of compliance. 

Upon finding that the agency is in 

noncompliance, the Board may, when 

appropriate, require the agency and the 

responsible agency official to appear 

before the Board to show why sanctions 

should not be imposed under 5 U.S.C. 

1204(a)(2) and 1204(e)(2)(A). The Board 

also may require the agency and the 

responsible agency official to make this 

showing in writing, or to make it both 

personally and in writing. The 

responsible agency official has the right 

to respond in writing or to appear at any 

argument concerning the withholding of 

that official’s pay. 

(2) The Board’s final decision on the 

issues of compliance is subject to 

judicial review under 1201.120 of this 

part. 

(3) The Board’s final decision on the 

issues of compliance is subject to 

judicial review under § 1201.120 of this 

part. 

(d) Burdens of proof. If an appellant 

files a petition for enforcement seeking 

compliance with a Board order, the 

agency generally has the burden to 

prove its compliance with the Board 

order by a preponderance of the 

evidence. However, if any party files a 

petition for enforcement seeking 

compliance with the terms of a 

settlement agreement, that party has the 

burden of proving the other party’s 

breach of the settlement agreement by a 

preponderance of the evidence. 

(e) Certification to the Comptroller 

General. When appropriate, the Board 

may certify to the Comptroller General 

of the United States, under 5 U.S.C. 

1204(e)(2)(A), that no payment is to be 

made to a certain Federal employee. 

This order may apply to any Federal 

employee, other than a Presidential 

appointee subject to confirmation by the 

Senate, who is found to be in 

noncompliance with the Board’s order. 

(f) Effect of Special Counsel’s action 

or failure to act. Failure by the Special 

Counsel to file a complaint under 5 

U.S.C. 1215(a)(1)(C) and subpart D of 

this part will not preclude the Board 

from taking action under this subpart. 

■ 51. Revise the heading of Subpart H of 

part 1201 to read as follows: 

Subpart H—Attorney Fees (Plus Costs, 

Expert Witness Fees, and Litigation 

Expenses, Where Applicable) and 

Damages (Consequential, Liquidated, 

and Compensatory) 

* * * * * 

■ 52. In § 1201.201, revise paragraph (a) 

and add a new paragraph (e) as follows: 

§ 1201.201 Statement of purpose. 

(a) This subpart governs Board 

proceedings for awards of attorney fees 

(plus costs, expert witness fees, and 

litigation expenses, where applicable), 

consequential damages, compensatory 

damages, and liquidated damages. 

* * * * * 


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(e) An award equal to back pay shall 

be awarded as liquidated damages 

under 5 U.S.C. 3330c when the Board or 

a court determines an agency willfully 

violated an appellant’s veterans’ 

preference rights. 

■ 53. In § 1201.202, redesignate 

paragraph (d) as paragraph (e), and add 

new paragraph (d) to read as follows: 

§ 1201.202 Authority for awards. 

* * * * * 

(d) Awards of liquidated damages. 

The Board may award an amount equal 

to back pay as liquidated damages under 

5 U.S.C. 3330c when it determines that 

an agency willfully violated an 

appellant’s veterans’ preference rights. 

* * * * * 

■ 54. In § 1201.204: 

■ a. Remove the words ‘‘consequential 

damages or compensatory damages’’ 

wherever they appear, and add in their 

place, the words ‘‘consequential, 

liquidated, or compensatory damages’’, 

and; 

■ b. Revise paragraph (h) introductory 

text to read as follows: 

§ 1201.204 Proceedings for consequential, 

liquidated, and compensatory damages. 

* * * * * 

(h) Request for damages first made in 

proceeding before the Board. Where a 

request for consequential, liquidated, or 

compensatory damages is first made on 

petition for review of a judge’s initial 

decision on the merits and the Board 

waives the time limit for making the 

request in accordance with paragraph 

(a)(2) of this section, or where the 

request is made in a case where the only 

MSPB proceeding is before the Board, 

including, for compensatory damages 

only, a request to review an arbitration 

decision under 5 U.S.C. 7121(d), the 

Board may: 

* * * * * 

Appendix III to Part 1201 [Removed 

and Reserved] 

■ 56. Remove and reserve Appendix III 

to Part 1201. 

PART 1203—PROCEDURES FOR 

REVIEW OF RULES AND 

REGULATIONS OF THE OFFICE OF 

PERSONNEL MANAGEMENT 

■ 57. The authority citation for 5 CFR 

part 1203 continues to read as follows: 

Authority: 5 U.S.C. 1204(a), 1204(f), and 

1204(h). 

■ 58. In § 1203.2, revise paragraph (e) to 

read as follows: 

§ 1203.2 Definitions. 

* * * * * 

(e) Prohibited personnel practices are 

the impermissible actions described in 5 

U.S.C. 2302(b)(1) through 2302(b)(12). 

* * * * * 

PART 1208—PRACTICES AND 

PROCEDURES FOR APPEALS UNDER 

THE UNIFORMED SERVICES 

EMPLOYMENT AND REEMPLOYMENT 

RIGHTS ACT AND THE VETERANS 

EMPLOYMENT OPPORTUNITIES ACT 

■ 59. The authority citation for 5 CFR 

part 1208 continues to read as follows: 

Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 

38 U.S.C. 4331. 

■ 60. Revise § 1208.3 to read as follows: 

§ 1208.3 Application of 5 CFR part 1201. 

Except as expressly provided in this 

part, the Board will apply subparts A 

(Jurisdiction and Definitions), B 

(Procedures for Appellate Cases), C 

(Petitions for Review of Initial 

Decisions), and F (Enforcement of Final 

Decisions and Orders) of 5 CFR part 

1201 to appeals governed by this part. 

The Board will apply the provisions of 

subpart H (Attorney Fees (Plus Costs, 

Expert Witness Fees, and Litigation 

Expenses, Where Applicable) and 

Damages (Consequential, Liquidated, 

and Compensatory)) of 5 CFR part 1201 

regarding awards of attorney fees and 

liquidated damages to appeals governed 

by this part. 

■ 61. Revise § 1208.21 to read as 

follows: 

§ 1208.21 VEOA exhaustion requirement. 

(a) General rule. Before an appellant 

may file a VEOA appeal with the Board, 

the appellant must first file a complaint 

under 5 U.S.C. 3330a(a) with the 

Secretary of Labor within 60 days after 

the date of the alleged violation. In 

addition, either the Secretary must have 

sent the appellant written notification 

that efforts to resolve the complaint 

were unsuccessful or, if the Secretary 

has not issued such notification and at 

least 60 days have elapsed from the date 

the complaint was filed, the appellant 

must have provided written notification 

to the Secretary of the appellant’s 

intention to file an appeal with the 

Board. 

(b) Equitable tolling; extension of 

filing deadline. In extraordinary 

circumstances, the appellant’s 60-day 

deadline for filing a complaint with the 

Secretary is subject to the doctrine of 

equitable tolling, which permits the 

Board to extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

■ 62. In § 1208.22, add a new paragraph 

(c) to read as follows: 

§ 1208.22 Time of filing. 

* * * * * 

(c) Equitable tolling; extension of 

filing deadline. In extraordinary 

circumstances, the appellant’s 60-day 

deadline for filing an appeal with the 

MSPB is subject to the doctrine of 

equitable tolling, which permits the 

Board to extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

■ 63. In § 1208.23, revise paragraphs 

(a)(5) and (a)(6) to read as follows: 

§ 1208.23 Content of a VEOA appeal; 

request for hearing. 

(a) * * * 

(5) Evidence identifying the specific 

veterans’ preference claims that the 

appellant raised before the Secretary; 

and 

(6)(i) Evidence that the Secretary has 

notified the appellant in accordance 

with 5 U.S.C. 3330a(c)(2) that the 

Secretary’s efforts have not resolved the 

complaint (a copy of the Secretary’s 

notice satisfies this requirement); or 

(ii) Evidence that the appellant has 

provided written notice to the Secretary 

of the appellant’s intent to appeal to the 

Board, as required by 5 U.S.C. 

3330a(d)(2) (a copy of the appellant’s 

written notice to the Secretary satisfies 

this requirement). 

* * * * * 

PART 1209—PRACTICES AND 

PROCEDURES FOR APPEALS AND 

STAY REQUESTS OF PERSONNEL 

ACTIONS ALLEGEDLY BASED ON 

WHISTLEBLOWING 

■ 64. The authority citation for 5 CFR 

part 1208 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), 

and 7701. 

■ 65. Revise § 1209.2 to read as follows: 

§ 1209.2 Jurisdiction. 

(a) Under 5 U.S.C. 1221(a), an 

employee, former employee, or 

applicant for employment may appeal to 

the Board from agency personnel 

actions alleged to have been threatened, 

proposed, taken, or not taken because of 

the appellant’s whistleblowing 

activities. 

(b) The Board exercises jurisdiction 

over: 


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(1) Individual right of action (IRA) 

appeals. These are authorized by 5 

U.S.C. 1221(a) with respect to personnel 

actions listed in 1209.4(a) of this part 

that are allegedly threatened, proposed, 

taken, or not taken because of the 

appellant’s whistleblowing activities. If 

the action is not otherwise directly 

appealable to the Board, the appellant 

must seek corrective action from the 

Special Counsel before appealing to the 

Board. 

Example 1: Agency A gives Mr. X a 

performance evaluation under 5 U.S.C. 

chapter 43 that rates him as ‘‘minimally 

satisfactory.’’ Mr. X believes that the agency 

has rated him ‘‘minimally satisfactory’’ 

because he reported that his supervisor 

embezzled public funds in violation of 

Federal law and regulation. Because a 

performance evaluation is not an otherwise 

appealable action, Mr. X must seek corrective 

action from the Special Counsel before 

appealing to the Board or before seeking a 

stay of the evaluation. If Mr. X appeals the 

evaluation to the Board after the Special 

Counsel proceeding is terminated or 

exhausted, his appeal is an IRA appeal. 

Example 2: As above, Agency A gives Mr. 

X a performance evaluation under 5 U.S.C. 

chapter 43 that rates him as ‘‘minimally 

satisfactory.’’ Mr. X believes that the agency 

has rated him ‘‘minimally satisfactory’’ 

because he previously filed a Board appeal of 

the agency’s action suspending him without 

pay for 15 days and because he testified on 

behalf of a co-worker in an EEO proceeding. 

The Board would not have jurisdiction over 

the performance evaluation as an IRA appeal 

because the appellant has not made an 

allegation of a violation of 5 U.S.C. 

2302(b)(8), i.e., a claim of retaliation for a 

protected whistleblowing disclosure. 

Retaliation for filing a Board appeal would 

constitute a different prohibited personnel 

practice, 5 U.S.C. 2302(b)(9), retaliation for 

having exercised an appeal, complaint, or 

grievance right granted by any law, rule, or 

regulation. Similarly, retaliation for protected 

EEO activity is a prohibited personnel 

practice under subsection (b)(9), not under 

subsection (b)(8). 

Example 3: Citing alleged misconduct, an 

agency proposes Employee Y’s removal. 

While that removal action is pending, Y files 

a complaint with OSC alleging that the 

proposed removal was initiated in retaliation 

for her having disclosed that an agency 

official embezzled public funds in violation 

of Federal law and regulation. OSC 

subsequently issues a letter notifying Y that 

it has terminated its investigation of the 

alleged retaliation with respect to the 

proposed removal. Employee Y may file an 

IRA appeal with respect to the proposed 

removal. 

(2) Otherwise appealable action 

appeals. These are appeals to the Board 

under laws, rules, or regulations other 

than 5 U.S.C. 1221(a) that include an 

allegation that the action was based on 

the appellant’s whistleblowing 

activities. (Examples of such otherwise 

appealable actions are listed in 5 CFR 

1201.3(a).) An individual who has been 

subjected to an otherwise appealable 

action must make an election of 

remedies as described in 5 U.S.C. 

7121(g) and paragraphs (c) and (d) of 

this section. 

Example 4: Same as Example 3 above. 

While the OSC complaint with respect to the 

proposed removal is pending, the agency 

effects the removal action. OSC subsequently 

issues a letter notifying Y that it has 

terminated its investigation of the alleged 

retaliation with respect to the proposed 

removal. With respect to the effected 

removal, Employee Y can elect to appeal that 

action directly to the Board or to proceed 

with a complaint to OSC. If she chooses the 

latter option, she may file an IRA appeal 

when OSC has terminated its investigation, 

but the only issue that will be adjudicated in 

that appeal is whether she proves that her 

protected disclosure was a contributing factor 

in the removal action and, if so, whether the 

agency can prove by clear and convincing 

evidence that it would have removed Y in the 

absence of the protected disclosure. If she 

instead files a direct appeal, the agency must 

prove its misconduct charges, nexus, and the 

reasonableness of the penalty, and Y can 

raise any affirmative defenses she might 

have. 

(c) Issues before the Board in IRA 

appeals. In an individual right of action 

appeal, the only merits issues before the 

Board are those listed in 5 U.S.C. 

1221(e), i.e., whether the appellant has 

demonstrated that one or more 

whistleblowing disclosures was a 

contributing factor in one or more 

covered personnel actions and, if so, 

whether the agency has demonstrated 

by clear and convincing evidence that it 

would have taken the same personnel 

action(s) in the absence of the protected 

disclosure(s). The appellant may not 

raise affirmative defenses other than 

reprisal for whistleblowing activities, 

such as claims of discrimination or 

harmful procedural error. In an IRA 

appeal that concerns an adverse action 

under 5 U.S.C. 7512, the agency need 

not prove its charges, nexus, or the 

reasonableness of the penalty, as a 

requirement under 5 U.S.C. 7513(a), i.e., 

that its action is taken ‘‘only for such 

cause as will promote the efficiency of 

the service.’’ However, the Board may 

consider the strength of the agency’s 

evidence in support of its adverse action 

in determining whether the agency has 

demonstrated by clear and convincing 

evidence that it would have taken the 

same personnel action in the absence of 

the protected disclosure(s). 

(d) Elections under 5 U.S.C. 7121(g). 

(1) Under 5 U.S.C. 7121(g)(3), an 

employee who believes he or she was 

subjected to a covered personnel action 

in retaliation for protected 

whistleblowing ‘‘may elect not more 

than one’’ of 3 remedies: An appeal to 

the Board under 5 U.S.C. 7701; a 

negotiated grievance under 5 U.S.C. 

7121(d); or corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12, i.e., a complaint filed with the 

Special Counsel (5 U.S.C. 1214), which 

can be followed by an IRA appeal filed 

with the Board (5 U.S.C. 1221). Under 

5 U.S.C. 7121(g)(4), an election is 

deemed to have been made based on 

which of the 3 actions the individual 

files first. 

(2) In the case of an otherwise 

appealable action as described in 

paragraph (b)(2) of this section, an 

employee who files a complaint with 

OSC prior to filing an appeal with the 

Board has elected corrective action 

under subchapters II and III of 5 U.S.C. 

chapter 12, i.e., a complaint filed with 

OSC, which can be followed by an IRA 

appeal with the Board. As described in 

paragraph (c) of this section, the IRA 

appeal in such a case is limited to 

resolving the claim(s) of reprisal for 

whistleblowing activities. 

■ 66. In § 1209.4, revise paragraph (b) as 

follows: 

§ 1209.4 Definitions. 

* * * * * 

(b) Whistleblowing is the making of a 

protected disclosure, that is, a 

disclosure of information by an 

employee, former employee, or 

applicant that the individual reasonably 

believes evidences a violation of law, 

rule, or regulation, gross 

mismanagement, gross waste of funds, 

abuse of authority, or substantial and 

specific danger to public health or 

safety. It does not include a disclosure 

that is specifically prohibited by law or 

required by Executive order to be kept 

secret in the interest of national defense 

or foreign affairs, unless such 

information is disclosed to the Special 

Counsel, the Inspector General of an 

agency, or an employee designated by 

the head of the agency to receive it. 

* * * * * 

■ 67. In § 1209.5, revise paragraphs (a) 

and (b) as follows: 

§ 1209.5 Time of filing. 

(a) General rule. The appellant must 

seek corrective action from the Special 

Counsel before appealing to the Board 

unless the action being appealed is 

otherwise appealable directly to the 

Board and the appellant has elected a 

direct appeal. (See § 1209.2(d) regarding 

election of remedies under 5 U.S.C. 

7121(g)). Where the appellant has 

sought corrective action, the time limit 

for filing an appeal with the Board is 


wreier-aviles on DSK5TPTVN1PROD with RULES2
Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Rules and Regulations 62375 

governed by 5 U.S.C. 1214(a)(3). Under 

that section, an appeal must be filed: 

(1) No later than 65 days after the date 

of issuance of the Special Counsel’s 

written notification to the appellant that 

it was terminating its investigation of 

the appellant’s allegations or, if the 

appellant shows that the Special 

Counsel’s notification was received 

more than 5 days after the date of 

issuance, within 60 days after the date 

the appellant received the Special 

Counsel’s notification; or, 

(2) At any time after the expiration of 

120 days, if the Special Counsel has not 

notified the appellant that it will seek 

corrective action on the appellant’s 

behalf within 120 days of the date of 

filing of the request for corrective 

action. 

(b) Equitable tolling; extension of 

filing deadline. The appellant’s deadline 

for filing an individual right of action 

appeal with the Board after receiving 

written notification from the Special 

Counsel that it is terminating its 

investigation of his or her allegations is 

subject to the doctrine of equitable 

tolling, which permits the Board to 

extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

* * * * * 

■ 68. In § 1209.6, revise paragraph (b) to 

read as follows: 

§ 1209.6 Content of appeal; right to 

hearing. 

* * * * * 

(b) Right to hearing. An appellant 

generally has a right to a hearing if the 

appeal has been timely filed and the 

Board has jurisdiction over the appeal. 

* * * * * 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2012–24130 Filed 10–11–12; 8:45 am] 

BILLING CODE 7400–01–P 


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