[Federal Register Volume 68, Number 181 (Thursday, September 18, 2003)]
[Rules and Regulations]
[Pages 54651-54652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23857]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 68, No. 181 / Thursday, September 18, 2003 / 
Rules and Regulations  

[[Page 54651]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule.

-----------------------------------------------------------------------

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending several provisions of its practices and procedures regulations 
to improve the agency's service to its customers by facilitating the 
expeditious adjudication of appeals. The amendments allow the judge to 
grant a joint or unilateral request for suspension of a case for only 
one 30-day period rather than two 30-day periods. Moreover, the amended 
regulations no longer provide for the automatic granting of such 
requests; instead, requests for the suspension of a case may be granted 
at the discretion of the judge. As a result of these amendments, the 
maximum amount of time that a case may be suspended has been reduced 
from 60 to 30 days.
    The amended regulations also impose a condition on the judge's 
exercise of discretion in granting unilateral requests for an 
additional suspension period. Such requests may be granted for good 
cause shown pursuant to the amended regulations. The amended 
regulations also specify a 30-day limit on the amount of time the judge 
may grant for a unilateral request.
    Two new subsections have also been added to the regulations 
governing discovery procedures. These subsections permit the 
administrative judge to impose limits on the frequency or extent of the 
use of discovery methods and the number of discovery requests. The 
Board has decided to follow the guidance of the Federal Rules of Civil 
Procedure in adopting these changes to its discovery procedures. The 
regulations governing discovery procedures have also been amended to 
reduce the number of days for filing subsequent discovery requests from 
10 days to 7 days.

DATES: Effective date: September 18, 2003. Submit written comments on 
or before October 20, 2003.

ADDRESSES: Send comments to 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 e-mail: [email protected].

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 e-mail: [email protected].

SUPPLEMENTARY INFORMATION: These changes in the Board's rules of 
practice and procedure respond in part to the directives contained in 
the President's Management Agenda (2002). The President's management 
reform initiative directs agencies to ``reshape their organizations to 
meet a standard of excellence in attaining the outcomes important to 
the nation.'' Among other actions, agencies are directed to reduce the 
time they take to make decisions.
    Both appellants and agencies have also expressed concern about the 
amount of time it takes to adjudicate or otherwise process a case 
through the Board. As a result, the Board has reviewed its practice and 
procedure regulations and determined that certain timelines affecting 
the adjudication process could be shortened without adverse effects on 
the rights of the parties to a fair and impartial adjudication of 
appeals before the Board.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

0
Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--[AMENDED]

0
1. The authority citation for part 1201 continues to read as follows:

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

0
2. Revise Sec.  1201.28 to read as follows:


Sec.  1201.28  Case suspension procedures.

    (a) Joint requests. The parties may submit a joint request for 
additional time to pursue discovery or settlement. Upon receipt of such 
request, an order suspending processing of the case for a period up to 
30 days may be issued at the discretion of the judge.
    (b) Unilateral requests. In lieu of participating in a joint 
request, either party may submit a unilateral request for additional 
time to pursue discovery as provided in this subpart. Unilateral 
requests for additional time of up to 30 days may be granted for good 
cause shown at the discretion of the judge.
    (c) Time for filing requests. The parties must file a joint request 
that the adjudication of the appeal be suspended within 45 days of the 
date of the acknowledgment order (or within 7 days of the appellant's 
receipt of the agency file, whichever date is later).
    (d) Untimely requests. The judge may consider requests for 
suspensions that are filed after the time limit set forth in paragraph 
(c) of this section. Such requests may be granted at the discretion of 
the judge.
    (e) Early termination of suspension period. The suspension period 
may be terminated prior to the end of the agreed upon period if the 
parties request the judge's assistance relative to discovery or 
settlement during the suspension period and the judge's involvement 
pursuant to that request is likely to be extensive.
    (f) Limitation on suspension period. No case may be suspended for 
more than a total of 30 days under the provisions of this section.

0
3. Revise Sec. Sec.  1201.72 and 1201.73 to read as follows:


Sec.  1201.72  Explanation and scope of discovery.

    (a) Explanation. Discovery is the process, apart from the hearing, 
by which a party may obtain relevant information, including the 
identification of potential witnesses, from another person or a party, 
that the other person or party has not otherwise provided. Relevant 
information includes information that appears reasonably calculated to 
lead to the discovery of admissible evidence. This information is 
obtained to assist the parties in preparing and presenting their cases. 
The Federal Rules of Civil Procedure may be used as a general guide for

[[Page 54652]]

discovery practices in proceedings before the Board. Those rules, 
however, are instructive rather than controlling.
    (b) Scope. Discovery covers any nonprivileged matter that is 
relevant to the issues involved in the appeal, including the existence, 
description, nature, custody, condition, and location of documents or 
other tangible things, and the identity and location of persons with 
knowledge of relevant facts. 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.
    (c) Methods. Parties may use one or more of the methods provided 
under the Federal Rules of Civil Procedure. These methods include 
written interrogatories, depositions, requests for production of 
documents or things for inspection or copying, and requests for 
admission.
    (d) Limitations. The judge may limit the frequency or extent of use 
of the discovery methods permitted by these regulations. Such 
limitations may be imposed if the judge finds that the discovery sought 
is:
    (1) Cumulative or duplicative, or is obtainable from some other 
source that is more convenient, less burdensome, or less expensive;
    (2) The party seeking discovery has had sufficient opportunity by 
discovery in the action to obtain the information sought; or
    (3) The burden or expense of the proposed discovery outweighs its 
likely benefit.


Sec.  1201.73  Discovery procedures.

    (a) Discovery from a party. A party seeking discovery from another 
party must start the process by serving a request for discovery on the 
representative of the other party or the party if there is no 
representative. The request for discovery must state the time limit for 
responding, as prescribed in Sec.  1201.73(d), and must specify the 
time and place of the taking of the deposition, if applicable. When a 
party directs a request for discovery to an officer 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) Discovery from a nonparty, including a nonparty Federal agency. 
Parties should try to obtain voluntary discovery from nonparties 
whenever possible. A party seeking discovery from a nonparty Federal 
agency or employee must start the process by serving a request for 
discovery on the nonparty Federal agency or employee. A party may begin 
discovery from other nonparties by serving a request for discovery on 
the nonparty directly. If the party seeking the information does not 
make that request, or if it does so but fails to obtain voluntary 
cooperation, it may obtain discovery from a nonparty by filing a 
written motion with the judge, showing the relevance, scope, and 
materiality of the particular information sought. If the party seeks to 
take a deposition, it should state in the motion the date, time, and 
place of the proposed deposition. An authorized official of the Board 
will issue a ruling on the motion, and will serve the ruling on the 
moving party. That official also will provide that party with a 
subpoena, if approved, that is directed to the individual or entity 
from which discovery is sought. The subpoena will specify the manner in 
which the party may seek compliance with it, and it will specify the 
time limit for seeking compliance. The party seeking the information is 
responsible for serving any Board-approved discovery request and 
subpoena on the individual or entity, or for arranging for their 
service.
    (c) Responses to discovery requests. (1) A party, or a Federal 
agency that is not a party, 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 or testimony 
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. Non-parties may respond to discovery 
requests by electronic mail if authorized by the requesting party.
    (2) If a party fails or refuses to respond in full to a discovery 
request, or if a nonparty fails or refuses to respond in full to a 
Board-approved discovery order, the requesting party may file a motion 
to compel discovery. The requesting party must file the motion with the 
judge, and must serve a copy of the motion on the other party and on 
any nonparty entity or person from whom the discovery was sought. The 
motion must be accompanied by:
    (i) A copy of the original request and a statement showing that the 
information sought is relevant and material; and
    (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.)
    (3) The other party and any other entity or person from whom 
discovery was sought may respond to the motion to compel discovery 
within the time limits stated in paragraph (d)(4) of this section.
    (d) Time limits. (1) Parties who wish to make discovery requests or 
motions must serve their initial requests or motions within 25 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 file 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 7 days of the date of service of 
the prior response, unless the parties are otherwise directed. 
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 to depose a nonparty (along with a request for a 
subpoena) must be submitted to the judge within the time limits stated 
in paragraph (d)(1) of this section or as the judge otherwise directs.
    (4) Any motion for an order to compel discovery 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 discovery 
must be filed with the judge within 10 days of the date of service of 
the motion.
    (5) Discovery must be completed within the time the judge 
designates.
    (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, parties may not take more 
than 10 depositions.
    (3) Requests to exceed the limitations set forth in paragraphs (a) 
and (b) of this section may be granted at the discretion of the judge. 
In considering such requests, the judge shall consider the factors 
identified in Sec.  1201.72(d) of this part.

    Dated: September 15, 2003.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 03-23857 Filed 9-17-03; 8:45 am]
BILLING CODE 7400-01-P