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Rules and Regulations Federal Register

63031 

Vol. 79, No. 204 

Wednesday, October 22, 2014 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Parts 1201 and 1210 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) is adopting 

as final an interim rule that adapted the 

Board’s regulations to legislative 

changes which created new laws 

applicable to the removal or transfer of 

Senior Executive Service employees of 

the Department of Veterans Affairs. 

DATES: Effective: October 22, 2014. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

phone: (202) 653–7200; fax: (202) 653– 

7130; or email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: On August 

19, 2014, the Board published an 

interim final rule (79 FR 48941) that 

amended 5 CFR 1201.3 and added a 

new 5 CFR part 1210 to the Board’s 

adjudicatory procedures in response to 

amendments to Federal law contained 

in the Veterans’ Access to Care through 

Choice, Accountability, and 

Transparency Act of 2014, Public Law 

113–146 (the Act). Two days later, on 

August 21, 2014, the Board amended the 

interim final rule by making certain 

technical corrections to definitions and 

citations. 79 FR 49423. 

As the Board explained in detail in 

the interim rule at 79 FR 48941–48942, 

section 707(a) of the Act created 38 

U.S.C. 713, which contains new rules 

for the removal or transfer of Senior 

Executive Service employees of the 

Department of Veterans Affairs (covered 

SES employees) for performance or 

misconduct, requires expedited review 

of appeals of such actions by the MSPB, 

and limits review of such actions to a 

final decision issued by an MSPB 

administrative judge. Paragraph (b) of 

section 707 of the Act requires the 

MSPB to develop and to put into effect 

expedited procedures for processing 

appeals filed pursuant to 38 U.S.C. 713 

and to submit a report to Congress 

within 14 days that addresses several 

matters, including the steps the Board is 

taking to conduct the expedited review 

required under the Act. The Board 

submitted the required report to 

Congress on August 21, 2014. A copy of 

the report is available at the Board’s 

Web site (www.mspb.gov). 

The MSPB received comments 

concerning its interim final rule from 

the National Employment Lawyers 

Association, the law firm of Passman 

and Kaplan, and the American Civil 

Liberties Union of the Nation’s Capital. 

The comments are available to the 

public at the Board’s Web site 

(www.mspb.gov). These commenters 

raised several concerns with the interim 

final rule. 

The commenters asked the MSPB to 

reconsider limitations on discovery set 

forth in part 1210. While the Board 

understands the position of the 

commenters, it remains convinced that 

broader discovery rules are 

incompatible with the requirement to 

adjudicate within 21 days cases filed 

under 38 U.S.C. 713. Accordingly, the 

Board will retain the current discovery 

rules, which limit the parties to 10 

interrogatories, no depositions, and no 

second round of discovery. The Board 

notes that, under part 1210, the 

administrative judge has the discretion 

to allow additional discovery and alter 

discovery procedures when he or she 

deems it necessary. 

A commenter asked the MSPB to 

expand the scope of materials that an 

agency must disclose when taking an 

action covered by part 1210. The 

interim rule provides that an agency 

must supply a copy of the ‘‘response 

file’’ (all documents and evidence the 

agency used in making the decision to 

remove or transfer a covered employee). 

5 CFR 1210.2(c) and 1210.5(c). The 

Board has concluded that the current 

‘‘response file’’ is sufficient to inform 

the employee of the reasons supporting 

the agency action and that expanding 

the scope of required disclosures is not 

necessary because the additional 

information identified by the 

commenters can be obtained in 

discovery. 

A commenter objected to the Board’s 

regulation imposing a rebuttable 

presumption in favor of the Secretary’s 

penalty determination as inconsistent 

with 38 U.S.C. 713, 5 U.S.C. 7701, and 

Board case law. The Board respectfully 

disagrees with this comment. 

As the commenter noted, the Board’s 

current regulation states that proof of 

underlying misconduct or poor 

performance by the agency creates a 

presumption that the penalty (removal 

or transfer) was warranted. 5 CFR 

1210.18(a). An appellant may rebut this 

presumption by establishing that the 

selected penalty was unreasonable 

under the circumstances of the case. Id. 

In drafting part 1210, the Board 

sought to interpret 38 U.S.C. 713 in 

accordance with its plain meaning and 

Congressional intent. Consistent with 

these considerations, part 1210 requires 

the Department of Veterans Affairs to 

prove its charges of misconduct and 

poor performance by preponderant 

evidence, as required in appeals filed at 

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

The commenter correctly notes that 

the penalty analysis set forth in part 

1210 differs from the penalty analysis 

the Board employs in other appeals. 

Generally, the Board requires that an 

agency prove by preponderant evidence 

that the penalty promotes the efficiency 

of the service and is reasonable. In so 

doing, the Board reviews an agencyimposed penalty to determine if the 

agency considered all the relevant 

factors and exercised management 

discretion within tolerable limits of 

reasonableness. Douglas v. Veterans 

Admin., 5 M.S.P.R. 280, 306 (1981). 

However, under 38 U.S.C. 713(a)(1), 

‘‘[t]he Secretary may remove an 

individual from a Senior Executive 

Service position . . . if the Secretary 

determines the performance or 

misconduct of the individual warrants 

such removal.’’ The Board has 

interpreted this unqualified language as 

granting the Secretary of the Department 

of Veterans Affairs broad discretion in 

selecting the appropriate penalty for 

proven misconduct or poor 

performance. In order to afford 

appropriate deference to the Secretary’s 

penalty decision, while at the same time 

preserving the Board’s ultimate 

authority to review such a 

determination in an appeal filed with 


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63032 Federal Register / Vol. 79, No. 204 / Wednesday, October 22, 2014 / Rules and Regulations 

the Board, the Board has interpreted 38 

U.S.C. 713 as requiring the use of a 

rebuttable presumption in favor of a 

penalty selected by the Secretary. 

Applying the penalty analysis employed 

in other MSPB appeals to appeals filed 

under 38 U.S.C. 713 would be 

inappropriate, as the law governing 

other appeals simply does not require 

the deference required under 38 U.S.C. 

713. 

A commenter asked the MSPB to 

amend part 1210 to state that filing an 

appeal with the MSPB under section 

707 of the Act is not an election of 

remedies barring pursuit of other 

statutory or regulatory appeal or 

complaint processes, such as filing an 

equal employment opportunity 

complaint, an individual right of action 

appeal, and claims under the Uniformed 

Services Employment and 

Reemployment Rights Act. The Board 

will not address this issue because it 

believes that such legal issues should 

initially be addressed through normal 

litigation processes. In addition, part 

1210 is intended primarily to create 

procedures that will enable MSPB 

administrative judges to decide cases 

filed under 38 U.S.C. 713 within 21 

days as required by that statute. The 

election of remedies issue presented by 

the commenter was not addressed in the 

interim rule and addressing this issue 

now will not further serve the purpose 

for which the Board promulgated part 

1210. 

A commenter asked the Board to 

amend its regulations to state that a 

decision issued under part 1210 would 

have no res judicata effect in any other 

type of action because an MSPB 

decision on an appeal filed under 38 

U.S.C. 713 will not satisfy due process 

requirements. The Board will not 

include such a statement in part 1210. 

The Board has no authority to determine 

the legal effect of its decisions in other 

fora. In addition, the Board has stated 

that it lacks the authority to determine 

the constitutionality of a statute. Brooks 

v. Office of Pers. Mgmt., 59 M.S.P.R. 

207, 215 n. 7 (1993). 

A commenter urged the MSPB to add 

a new regulation requiring the 

Department of Veterans Affairs to pay 

for a complete hearing transcript in all 

cases decided under part 1210. The 

commenter further suggested that the 

Board amend part 1210 to mandate that 

the hearing transcript and all hearing 

exhibits be sent to the Department of 

Veterans Affairs Inspector General and 

House and Senate oversight committees. 

The Board has considered this 

proposal but will not amend its 

regulations as requested. A copy of the 

hearing compact disc, hearing transcript 

(to the extent a hearing transcript is 

contained in the Board’s files), and all 

hearing exhibits can be made available 

to interested parties as permitted under 

Federal law, including, but not limited 

to, the Freedom of Information Act 

(FOIA), 5 U.S.C. 552, as amended, 5 

CFR parts 1204 and 1205, and 5 CFR 

1201.53. The Board notes that the final 

decisions in all appeals decided under 

part 1210 will be available for public 

review in the same manner as Board 

final decisions in other types of appeals. 

A commenter asked the MSPB to 

amend its regulations to ensure that 

each side will have sufficient and equal 

time to present their cases, despite 

statutorily-required time constraints on 

completion of the appeal. The Board 

expects that its administrative judges 

will ensure that the parties are given a 

fair opportunity to present evidence and 

that the requested regulatory change is 

therefore unnecessary. 

A commenter suggested that in view 

of the limitations that part 1210 places 

on discovery and the inability of the 

three-member Board at MSPB 

headquarters in Washington, DC, to 

review an administrative judge’s 

evidentiary rulings, the Board should 

amend part 1210 to allow greater 

latitude in the scope of witness 

examination and include a requirement 

that administrative judges should avoid 

excluding evidence or witness 

testimony to the greatest extent possible. 

The Board does not believe that such 

additional requirements are necessary. 

Given the statutorily-required time 

limits in covered appeals, MSPB 

administrative judges must be allowed 

to limit the introduction of irrelevant or 

duplicative evidence as they do under 

normal Board procedures. The Board 

has a high degree of confidence in the 

ability of its administrative judges to 

fairly conduct the expedited review 

required under 38 U.S.C. 713. 

A commenter asked the Board to 

amend its regulations to state that 

section 707 of the Act in no way 

modifies the Special Counsel’s 

prosecutorial authority under 5 U.S.C. 

1215. The Board will not address this 

issue because, as noted above, it 

believes that such legal issues should 

initially be addressed through the 

normal litigation process. In addition, 

part 1210 is intended primarily to create 

procedures that will enable MSPB 

administrative judges to decide appeals 

filed under 38 U.S.C. 713 within 21 

days, as required by the Act. Addressing 

the issue presented by the commenter 

will not further that goal. 

A commenter suggested that MSPB 

should amend its regulations to require 

the agency to file a protective order 

when it refuses to reply to a discovery 

request. The commenter suggested that 

such a procedure would be quicker and 

more efficient than requiring an 

appellant to file a motion to compel 

discovery. While the Board understands 

how this proposal could perhaps speed 

the resolution of certain discovery 

disputes, the Board believes that its 

current discovery procedures have 

generally proven to work well and will 

allow the parties ample time to resolve 

discovery disputes. However, to the 

extent that timely completion of 

discovery is identified as a problem in 

cases brought under part 1210, the 

Board may reconsider this proposal as a 

means of speeding completion of 

discovery. 

A commenter asked the MSPB to 

amend its regulations to allow parties to 

seek modification of exhibit and witness 

lists in response to discovery requests. 

As noted earlier, MSPB administrative 

judges fully appreciate the practical 

difficulties facing the parties as they 

assemble and present a case within the 

21-day deadline mandated by the Act 

and the Board expects its administrative 

judges to allow timely requests to 

modify exhibit and witness lists. 

As of the date of submission of this 

final rule for publication in the Federal 

Register, no appeals have been filed 

with the Board under 38 U.S.C. 713. The 

Board may reexamine part 1210 

procedures in light of actual experience 

and will, if necessary, seek additional 

comment on its procedures and/or 

propose amendments to part 1210. 

List of Subjects in 5 CFR Parts 1201 and 

1210 

Administrative practice and 

procedure. 

William D. Spencer, 

Clerk of the Board. 

Corrected Interim Rule Adopted as 

Final Without Change 

Accordingly, the interim rule 

amending 5 CFR Parts 1201 and 1210, 

which was published at 79 FR 48941 on 

August 19, 2014, 2014, and 

subsequently corrected at 79 FR 49423 

on August 21, 2014, is adopted as a final 

rule without change. 

[FR Doc. 2014–25212 Filed 10–21–14; 8:45 am] 

BILLING CODE 7400–01–P 


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