[Federal Register Volume 67, Number 182 (Thursday, September 19, 2002)]
[Rules and Regulations]
[Pages 58961-58962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23771]



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  Federal Register / Vol. 67, No. 182 / Thursday, September 19, 2002 / 
Rules and Regulations  

[[Page 58961]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its practices and procedures regulations at 5 CFR Part 1201 by 
adding a new section to permit suspension of a case for up to 60 days 
to allow the parties to pursue discovery or settlement.

EFFECTIVE DATE: September 19, 2002.

FOR FURTHER INFORMATION CONTACT: Bentley M. Roberts, Jr., Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, 
DC 20419; (202) 653-7200; fax: (202) 653-7130; or email: [email protected].

SUPPLEMENTARY INFORMATION: This amendment to the Board's rules of 
practice and procedure resulted from the successful implementation of a 
pilot program. In November 1999, the Merit Systems Protection Board 
(MSPB) established a pilot program to allow appellants and agencies up 
to 60 days additional time to pursue discovery and settlement efforts 
in pending initial appeals. The pilot program was initiated, in part, 
in response to concerns raised by Board practitioners that the 120-day 
time limit for adjudicating appeals prevented the parties from 
conducting the discovery they believed necessary to prevail on appeal. 
The pilot program simplified the process for obtaining a suspension of 
case processing to accommodate parties before the Board.
    Under the pilot program, the presiding judge was authorized to 
grant a 30-day suspension of case processing to parties who jointly 
requested the additional time. A second 30-day suspension was granted 
if the parties agreed that additional time was necessary. Parties were 
not required to provide evidence and argument to support a joint 
request for additional time, so long as the request was made early in 
the proceedings.
    The Board believes that the pilot program has been successful in 
addressing the concerns regarding adequate time to conduct discovery 
and in facilitating settlement of complex cases.
    The Board announced this amendment as an interim rule at 67 FR 3811 
(Jan. 28, 2002). The Board received comments from one practitioner and 
one agency representative. After careful consideration of the comments 
received, the Board is adopting the interim rule with minor amendments. 
The comments and the Board's responses are as follows:
    1. One commenter suggested that administrative judges be given the 
discretion to grant belatedly filed requests for extensions.
    The substance of this recommendation was already covered by the 
regulation, which provides, at paragraph (d), for the judge to 
``consider'' any requests ``that are filed after the time limit set 
forth in paragraph (c) of this section.'' We believe that this 
paragraph provides a sufficiently clear grant of discretion to 
administrative judges to approve ``belated'' requests.
    2. One commenter suggested that the regulations be amended to 
permit case suspensions for any reason.
    This recommendation was not adopted. The reason for granting the 
request to suspend case processing should have some rational 
relationship to furthering the interests of the parties (fairness, due 
process, etc.) in the specific matter before the Board and the Board's 
effective adjudication of cases, while avoiding the encouragement of 
frivolous requests for case suspensions.
    3. One commenter suggested that the regulations be amended to 
provide that a request that is not based on the need for additional 
discovery or the desire to pursue settlement be treated as a request 
for a continuance or for a dismissal without prejudice to refile the 
appeal. Under this provision, the request for a dismissal without 
prejudice would not require the appellant's approval.
    This recommendation was not adopted as the Board believes that 
these procedures should remain separate. Continuances and dismissals 
without prejudice are already generally provided for by the Board's 
regulations and case law, and need not be addressed here. The section 
1201.28 process is intentionally limited to the two purposes named. The 
suggestion that dismissals without prejudice not require the 
appellant's assent runs counter to the Board's policy of avoiding 
unnecessary impediments to an appellant's pursuit of an appeal.
    4. One commenter suggested that the regulations be amended to 
provide that the 120-day clock begin anew from the termination of the 
suspension.
    This recommendation was not adopted. The procedure established 
under section 1201.28 is called a ``suspension,'' which means that the 
adjudication clock is temporarily stopped, not that it is re-set.
    5. One commenter stated that the proposed regulations are 
unnecessary and will cause pointless delays.
    Contrary to the view expressed by this commenter, numerous agency 
representatives and Board practitioners have expressed the view that 
this procedure has been very helpful. The extent of the favorable 
reviews is the basis for the Board's decision to institute this 
procedure as a permanent component of its adjudicatory process.
    6. One commenter suggested that the parties should be required to 
comply with a more formal system for filing a request, including a 
requirement that both parties file the request, describe settlement 
efforts, and explain the reasons for the request.
    This recommendation was not adopted. The regulation contemplates 
that the parties will specify that the request is being made for one of 
the reasons described in the regulation. If the request is made 
jointly, the administrative judge should not have to second-guess the 
parties on their need for additional time. If it is made unilaterally, 
the administrative judge is given discretion to grant or deny the 
request. He or she can weigh the party's or parties' arguments and rule 
accordingly. Since there is no requirement that settlement efforts 
reach any particular point for a suspension to be granted, an outline 
of settlement efforts would not be helpful.
    7. One commenter suggested that the Board establish evidentiary

[[Page 58962]]

requirements to support requests for 30-day extensions.
    This recommendation was not adopted. The aim of this regulation is 
to encourage the parties to complete discovery or work amicably to 
reach a speedy settlement or other resolution of the matter. To require 
the parties to provide evidence and argument to support a joint request 
would add another matter for review and undermine this objective.
    8. One commenter suggested that the regulations should specify the 
limit on the amount of time the judge may grant for a unilateral 
request for extension of time to pursue discovery.
    This recommendation was adopted. Changes were made to paragraph (b) 
to specify a 30-day limit on the amount of time the judge may grant for 
a unilateral request. For the sake of consistency, similar 
modifications were made to paragraph (d) regarding untimely requests.
    9. One commenter suggested that paragraph (e), the provision 
governing early termination of the suspension period, is confusing and 
requires clarification.
    The first part of the comment states that a settlement agreement 
would automatically terminate the suspension. This observation is 
accurate but not relevant to the provision, which provides for the 
termination of the suspension only when the administrative judge's 
extensive involvement in the appeal will be needed. As to the remaining 
concerns expressed, the point of the regulation is that the case should 
remain suspended only as long as settlement and/or discovery efforts 
without the administrative judge's intervention are likely to be 
helpful in the resolution of the appeal, which for the time being is 
not being adjudicated. Adjudication would resume if the process no 
longer serves those ends. If an administrative judge must be 
extensively involved in the process, then by definition, the matter is 
no longer suspended, but rather is under active consideration by the 
administrative judge and has re-entered the adjudication process.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.
    Accordingly, the Board adopts as final the interim rule published 
on January 28, 2002 (67 FR 3811), with the following change:

PART 1201--[AMENDED]

    1. The authority citation for part 1201 continues to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701, unless otherwise noted.

    2. In Sec.  1201.28, paragraph (d) is revised to read as follows:


Sec.  1201.28  Case suspension procedures

* * * * *
    (d) Untimely requests. The judge may consider requests for initial 
suspensions that are filed after the time limit set forth in paragraph 
(c) of this section. Such requests for additional time (up to 30 days 
for initial suspensions and a 30-day extension, as provided in 
paragraph (a) of this section) may be granted at the discretion of the 
judge.
* * * * *

    Dated: September 13, 2002.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 02-23771 Filed 9-18-02; 8:45 am]
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