DEPARTMENT OF VETERANS AFFAIRS
 

Office of the General Counsel
 

Washington DC 20420
 

JUL 20 2012 

In Reply Refer To: 

• 

Clerk of the Board 

U.S. Merit Systems Protection Board 

1615 M Street, NW 

Washington, DC 20419-0002 

Dear Clerk of the Board: 

The Department of Veterans Affairs provides the following comments in response 

to the MSPB's proposed rules contained in the Federal Register, Volume 77, No. 110, 

Thursday, June 7, 2012. 

We also acknowledge and appreciate that the Board has revised the proposed 

regulations provided last fall for comment consistent with the Department's comments. 

1. Proposed § 1201.4 General Definitions 

The Board proposes to amend the definition of "date of service" in 5 C.F.R. 

. § 1201.40) so that it has the same meaning as "date of filing" under 

§ 1201.4(1). While we appreciate that the change will bring some clarity, our 

concern with the proposal is that whenever a pleading deadline is based upon 

the date of service of a previous document and that previous document was 

served by mail, ''the filing deadline will be extended by 5 calendar days." An 

extra five days does not reflect the actual amount of time for a mailed 

document to arrive at VA Central Office, as VA's mail is screened by an offsite entity prior to its arrival at VA for security purposes, adding several days 

to the process. Other Federal agencies, including the Department of Justice, 

follow a similar practice. Thus, we suggest adding the following to the end of 

proposed § 1201.4(j): "However, if the receiving party establishes that it 

received the document beyond the 5-day deadline, the date of service will be 

the date upon which the receiving party received the document." 

We also suggest that the Board consider amending the proposal to read "5 

business days" instead of "5 calendar days." In current § 1201.4(1) ("date of 

filing), the five-day extension excludes "days on which the Board is closed for 

business." In other words, when counting the due date of a filing under 

§ 1201.4(1), one uses the "business day" counting method that is commonly 

associated with Federal filings. However, proposed § 1201.4(j) ("date of 
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Clerk of the Board 

service") includes a deadline that "will be extended by 5 calendar days." By 

using calendar days in proposed § 1201.40), but using business days in 

§ 1201.4(1), the Board is further muddying the waters regarding how to count 

days when serving or filing documents. 

2.	 Proposed §1201.21 Notice of Appeal Rights 

The Board proposes that agencies will not only have to inform an employee 

about his/her rights to file a grievance upon being suspended more than 14 

days or removed, but also about the right to file a whistleblower complaint 

with OSC; and that if they file such a complaint, it might impact his/her rights 

before the Board if s/he later decides to file an appeal with the Board. While 

we appreciate the explanation for this proposed change in the summary of 

changes, letters that propose removal will now contain an extensive amount 

of information that the agency must provide or otherwise be in violation of 

notice required by the Board. We therefore object to this new requirement of 

additional notice to employees. 

The proposed regulation also requires notice to the employee about the 

whistleblower rights in any decision notice "When an agency issues a 

decision notice to an employee on a matter that is appealable to the Board." 

This is unclear as to its application, as this could apply to any decision over 

which the Board will automatically have jurisdiction, e.g., removal of a nonprobationary Title 5 employee, or cover decisions over which the Board could 

later have jurisdiction, or e.g. removal of a probationary employee who 

alleges the removal was for partisan political reasons. The Board should 

clarify the application of this proposed regulation. 

3.	 Proposed § 1201.22(b)(3) Filing appeals and response to appeals; timing of 

filing 

We support the Board's proposed regulations which clarify service to the 

appellant. 

4.	 Proposed § 1201.29 Dismissal without prejUdice 

We support the Board proposed regulations which codify clearly a rule that 

previously required case law research to fully understand. However, we note 

that there appears to be a typo in the proposed § 1201.29(a). It states 

"Subject to the provisions of section 1201.12 of this part, a decision 

dismissing an appeal without prejudice shall include a date certain by which 

the appeal must be refiled." We believe the citation should be to § 1201.22, 
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Clerk of the Board 

not § 1201.12 since an AJ cannot set a refiling date that would be untimely 

under § 1201.22. Additionally, § 1201.12 (the regulation to which the 

proposed § 1201.29(a) cites) does not appear to have anything to do with 

filing or refiling an appeal. 

5. Proposed § 1201.53(b) Record of Proceedings 

We oppose the imposition of this burden, which can be costly, on agencies. 

As noted in the comments, § 7701 (a) requires the Board to maintain 

transcripts. When the Board determines that it or an appellant should have 

other than the current recorded transcript, the Board should bear the cost of 

providing such transcript. Moreover, it is unclear how many copies could be 

required, and if the agency has to provide a copy to the AJ, three for each 

Board member, and the appellant. We oppose this regulation insofar as it 

requires the agency to provide the Board unknown quantities of the hearing 

transcript. 

6. Proposed § 1201.73 Discovery Procedures 

The Department agrees with the proposal to eliminate the initial disclosures 

that are currently required by § 1201.73(a). We also agree with the addition 

to § 1201.73(d)(4) that discovery must end no later than the prehearing 

conference if the AJ did not already designate a time period for discovery to 

end. In addition, we think § 1201.73(c)(i)'s addition of a requirement to 

demonstrate that the scope of a discovery request is reasonable will be 

helpful. 

7. Proposed § 1201.114(h) 

The Agency agrees with the proposal to limit the number of pages for 

pleadings in a petition for review. 

. 8.	 Proposed § 1201.21 Notice of appeal rights and Proposed § 1209.2 

Jurisdiction. 
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Clerk of the Board 

We agree with the Board's decision to promulgate regulations that overrule 

Massimino and bring Board practice into compliance with the requirements of 

5 U.S.C. § 7121 (g). 

Thank you for the opportunity to comment on these proposed regulations. 

Sincerely yours, 

Will A. Gunn 

General Counsel