[Federal Register Volume 68, Number 202 (Monday, October 20, 2003)]
[Rules and Regulations]
[Pages 59859-59865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26172]



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  Federal Register / Vol. 68, No. 202 / Monday, October 20, 2003 / 
Rules and Regulations  

[[Page 59859]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201, 1203, 1208, 1209


Interim Regulatory Changes for Implementation of e-Appeal and e-
Filing

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules of practice and procedure to provide parties to 
Board proceedings the option of transacting business electronically, as 
required by the Government Paperwork Elimination Act. The interim 
regulations allow appellants to initiate an appeal by using e-Appeal, 
an interactive application available from the Board's Web site (http://www.mspb.gov/e-appeal.html). Parties to appeals and other Board 
proceedings may engage in electronic case filing on an ongoing basis by 
making an election to file and receive pleadings and Board documents 
via electronic mail.

DATES: Effective date October 20, 2003. Written comments should be 
submitted on or before December 20, 2003.

ADDRESSES: Submit comments to the Office of the Clerk of the Board, 
Merit Systems Protection Board, 1615 M St., NW, Washington, DC 20419. 
Comments may be submitted by regular mail to this address, by facsimile 
to (202) 653-7130, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Timothy L. Korb, 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:

What the Law Requires

    Section 1704 of the Government Paperwork Elimination Act, Pub. L. 
No. 105-277, 112 Stat. 2681-750 (1998), mandated that Federal Executive 
agencies provide, by October 21, 2003, ``(1) for the option of the 
electronic maintenance, submission, or disclosure of information, when 
practicable as a substitute for paper; and (2) for the use and 
acceptance of electronic signatures, when practicable.'' As defined in 
Sec.  1710 of the Act, an electronic signature means ``a method of 
signing an electronic message that--(A) identifies and authenticates a 
particular person as the source of the electronic message; and (B) 
indicates such person's approval of the information contained in the 
electronic message.'' 112 Stat. at 2681-751.
    The MSPB for some time has been accepting and processing requests 
submitted by electronic mail (e-mail) under the Freedom of Information 
and Privacy Acts. The Board has also experimented on a limited basis 
with accepting pleadings filed as electronic attachments to e-mail in 
the appeals that come before it. These interim regulations represent 
the Board's first agency-wide use of electronic filing in case 
adjudication.
    The Board recently announced that it had forwarded to the Office of 
Management and Budget a proposed information collection: e-Appeal, a 
new electronic application for filing an appeal with the Board; and 
MSPB Form 185, a revised MSPB paper Appeal Form. 68 FR 44971 (July 31, 
2003). This interim rule makes e-Appeal and Form 185 effective in Board 
proceedings. It also introduces filing by electronic mail.
    Participation in electronic filing (e-Filing) is voluntary. An 
individual may still initiate a Board appeal by filing a paper appeal 
by any of the conventional means. Similarly, no party is obligated to 
participate in e-Filing during the course of a Board proceeding.

Future Plans for E-Filing

    Part of the reason for issuing an interim rule is that the 
electronic case filing procedures we now institute are themselves 
interim in nature. Our long-term goal is to conduct all e-Filing 
through the Internet, including both the pleadings filed by the parties 
with the Board, and the notices, orders, and decisions issued by the 
Board to the parties. In the future, e-Filing will include automatic 
notice of filing, and parties will be able to view and download 
pleadings and Board documents from our Web site. At the present time, 
however, the only part of e-Filing that is Web-enabled is the 
initiation of an appeal through e-Appeal.

Commencing a Board Proceeding via e-Appeal

    e-Appeal is an interactive Web application that allows appellants 
or their representatives to create and submit appeals using an 
interview format. The application includes Help and Question and Answer 
links appropriate to each section of the interview.
    As part of the e-Appeal process, an individual creates a unique 
user ID and password, which constitutes his or her electronic 
signature. The filer can print a copy of the appeal either at the time 
of filing or afterward. The Board will send an electronic confirmation 
that it has received and is processing the appeal.

Election To Participate in E-Filing by E-Mail

    Under the interim rule, electronic filing after the commencement of 
a Board proceeding will be limited to filing and receiving documents 
via e-mail. To participate, a party must file an election with the 
Board which lists the e-mail address from which pleadings will be 
filed, and to which pleadings and Board documents may be sent. An 
election to engage in e-Filing, which may itself be filed by e-mail, 
constitutes consent to accept electronic service of pleadings and Board 
documents. Such an election also permits a party to file pleadings 
electronically, but a party who has elected e-Filing may still opt to 
file any pleading by conventional means. An election to engage in e-
Filing may be terminated at any point in a Board proceeding.
    Sending a pleading from the designated e-mail address constitutes 
an electronic signature. Parties can submit a declaration made under 
penalty of perjury (equivalent to an affidavit) electronically, as 
described in paragraph (n) of new Sec.  1201.5.
    A party who has elected to engage in e-Filing files a pleading by 
sending an e-mail to the appropriate Board office. If the other party 
has also elected e-Filing,

[[Page 59860]]

service of that party is accomplished by including the party in the 
address portion of the e-mail. If the other party has not elected e-
Filing, service is by conventional means. The Board will confirm 
receipt of e-mailed pleadings by sending a return e-mail.
    Especially where both parties elect to participate, e-Filing should 
permit faster case processing because the Board and the parties will 
receive filings the same day they are submitted. This is particularly 
important for pleadings filed with the Clerk of the Board in 
Washington, D.C., because mailed pleadings are first sent to Ohio for 
irradiation. Where only one party elects to engage in e-Filing, the 
Board will set deadlines so that the party filing and receiving 
documents by conventional means will have adequate time to prepare and 
file a response.

Electronic Formats Allowed

    Our interim rule allows electronic pleadings to be filed in ``any 
widely-used electronic format.'' We believe that e-Filing should 
require as little specialized equipment, software, and expertise as 
possible. Ideally, all a person should require is a personal computer 
equipped with a word-processing application, a Web browser, and access 
to e-mail and the Internet. Keeping technical requirements to a minimum 
is important in Board proceedings because a significant proportion of 
the parties appearing before us are representing themselves, or are 
represented by non-attorneys. To require specialized equipment and 
software, or significant computer expertise, would preclude many 
parties from participating in e-Filing. If the Board or receiving party 
has difficulty viewing or printing an electronic pleading, the 
regulations require informal attempts to resolve the problem. If such 
efforts are unsuccessful, the filing party must serve the pleading by 
conventional means.
    The Board expects that the primary pleading in most e-Filings will 
consist of an electronic attachment to the e-mail such as a word-
processing file. However, we will allow the submission of very brief 
pleadings, one or two paragraphs, in the body of the e-mail message. 
The reason for this restriction is a concern that the formatting of the 
pleading may be adversely affected, making it difficult to read. We ask 
that parties identify the nature of the pleading and the appeal to 
which it is related in the Subject portion of the e-mail, e.g., 
Appellant's Prehearing Submission in Doe v. Agency, XX-0752-03-XXXX-I-
1.

Hybrid Filings

    Only a small proportion of the contents of an MSPB case file 
typically originate as electronic files created for the Board 
proceeding. Most are paper documents that could only be converted to 
electronic format by scanning. For that reason, pleadings that include 
both an electronic file created for the Board proceeding and one or 
more paper documents will be common. Such ``hybrid'' filings are 
allowed under the interim rule. When a pleading contains both an 
electronic component and a non-electronic component, the party files 
the electronic component by e-mail, and the non-electronic component by 
conventional means. Such a pleading is considered filed and served when 
all components have been filed and served. We note, however, that an e-
Appeal is filed when submitted electronically, regardless of when 
requested attachments are filed. The reason is that our regulations do 
not require that an appeal include any documentation; they require 
information only. See 5 CFR 1201.24(a).

Large Image Files Limitation

    When paper documents have been converted to electronic format by 
scanning, they consume much more disk space than do electronic text 
files, such as word-processing files. Because transmitting and 
downloading image files can consume a great deal of time and resources, 
our regulations provide that documents that can only be converted to 
electronic format by scanning must be filed by traditional means when 
the paper document exceeds 25 pages.

List of Subjects

5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

5 CFR Part 1203

    Administrative practice and procedure, Civil rights, Government 
employees.

5 CFR Part 1208

    Administrative practice and procedure, Government employees, 
Veterans.

5 CFR Part 1209

    Administrative practice and procedure, Government employees, 
Whistleblowing.

0
Accordingly, the Board amends 5 CFR parts 1201, 1203, 1208, and 1209 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. Section 1201.4 is amended by revising paragraphs (i), (k), and (l) 
and by adding new paragraphs (m), (n), and (o) to read as follows:


Sec.  1201.4  General definitions.

* * * * *
    (i) Service. The process of furnishing a copy of any pleading to 
Board officials, other parties, or both, either by mail, by facsimile, 
by commercial or personal delivery, or by electronic mail, provided the 
requirements of Sec.  1201.5 of this part have been met.
* * * * *
    (k) Certificate of Service. A document certifying that a party has 
served copies of pleadings on the other parties. If a pleading is 
served by electronic mail, the address portion of the electronic mail 
message serves as a certificate of service.
    (l) Date of filing. A document that is filed with a Board office by 
personal delivery is considered filed on the date on which the Board 
office receives it. The date of filing by facsimile is the date of the 
facsimile. The date of filing by mail is determined by the postmark 
date; if no legible postmark date appears on the mailing, the 
submission is presumed to have been mailed five days (excluding days on 
which the Board is closed for business) before its receipt. The date of 
filing by commercial delivery is the date the document was delivered to 
the commercial delivery service. The date of filing by electronic mail 
is the date on which the electronic mail is sent.
    (m) Internet filing option. The option that an appellant may 
exercise to commence an appeal proceeding before the Board by filing 
through the electronic application (e-Appeal) available at the Board's 
Web site (http://www.mspb.gov/e-appeal.html).
    (n) Electronic mail filing and service. The process of filing 
certain pleadings with the Board and serving certain pleadings on other 
parties using electronic mail.
    (o) Electronic signature. The term ``electronic signature'' means a 
method that identifies and authenticates a particular person as the 
source of the electronic message and indicates such person's approval 
of the information contained in the electronic message.

0
3. Subpart A of part 1201 is amended by adding a new Sec.  1201.5 to 
read as follows:

[[Page 59861]]

Sec.  1201.5  Electronic mail and Internet filing procedures.

    (a) Scope. This section sets forth the rules applicable to the 
filing and service of pleadings by electronic mail and the Board's 
Internet filing option for matters within the Board's original 
jurisdiction (as explained in Sec.  1201.2 of this subpart) and matters 
within the Board's appellate jurisdiction (as explained in Sec.  1201.3 
of this subpart). The electronic submission of a pleading commencing an 
appeal proceeding before the Board in a matter identified in Sec.  
1201.3 of this subpart must be filed using the Board's Internet filing 
option available at the Board's Web site (http://www.mspb.gov/e-appeal.html). Except for matters identified in paragraph (b) of this 
section, pleadings relating to the adjudication of a matter identified 
in either Sec.  1201.2 or Sec.  1201.3 of this subpart may be filed 
using electronic mail, provided the requirements of this section are 
satisfied.
    (b) Matters not covered. Matters that may not be filed by 
electronic mail or the Internet filing option are:
    (1) A request to hear a case as a class appeal and any opposition 
thereto (Sec.  1201.27 of this subpart),
    (2) Service of subpoenas (Sec.  1201.83 of this subpart),
    (3) The initial filing in a Special Counsel complaint seeking 
disciplinary action (Sec.  1201.122 of subpart D),
    (4) The initial filing in a Special Counsel complaint seeking 
corrective action (Sec.  1201.128 of subpart D),
    (5) The initial filing in a Special Counsel request for a stay 
(Sec.  1201.134 of subpart D),
    (6) The initial filing in an agency action seeking to discipline an 
administrative law judge (Sec.  1201.137 of subpart D),
    (7) The initial filing in a case involving a proposal to remove a 
career appointee from the Senior Executive Service (Sec.  1201.143 of 
subpart D), and
    (8) Filings with the Special Panel (Sec.  1201.173 of subpart E).
    (c) Internet filing option. The electronic filing of an appeal is 
only allowed by using the Board's Internet filing option (e-Appeal) 
available at the Board's Web site (http://www.mspb.gov/e-appeal.html). 
The Internet filing option allows an appellant to contest various types 
of agency actions and decisions and to raise various types of defenses 
and claims. The Internet filing option also includes the option of 
designating a representative and provides for an electronic signature. 
Detailed instructions explaining how to use the Board's Internet filing 
option are available at the Board's Web site.
    (d) Filing electronic mail pleadings with the Board. With the 
exception of pleadings commencing an appeal before the Board and the 
exceptions noted in paragraphs (b)(1) through (b)(8) of this section, a 
party may make any filing regarding a matter covered by this section by 
electronic mail if the party has completed the authorization under 
paragraph (f) of this section. All electronic mail filings should be 
addressed to the appropriate regional or field office or to the Clerk 
of the Board for matters pending at Headquarters. Electronic mail 
addresses to be used when filing with the Board will be specified in 
acknowledgement orders.
    (e) Electronic mail service by the Board and parties. The Board may 
serve upon any party a document regarding a matter covered by this 
section by electronic mail provided that the party being served has 
authorized electronic mail service and acceptance of electronic mail 
service in accordance with paragraph (f) of this section. A party may 
serve upon any party a pleading or document regarding a matter covered 
by this section by electronic mail provided that both the sending and 
receiving parties have authorized electronic mail service and 
acceptance of electronic mail service in accordance with paragraph (f) 
of this section.
    (f) Election to engage in electronic mail filing. (1) A party may 
elect to engage in electronic mail filing during a Board proceeding by 
filing with the judge or Board, and serving upon the other parties, a 
written statement of such election that includes the electronic mail 
address at which the party agrees to receive service. An election to 
engage in electronic mail filing constitutes consent to accept 
electronic service of pleadings and Board issuances at the electronic 
mail address specified. Such an election may be filed by any means 
provided in paragraph (i) of Sec.  1201.4 of this part, including 
electronic mail.
    (2) All electronic mail filings must be sent from the electronic 
mail address specified in the election.
    (3) A pleading or Board issuance served electronically on a party 
who has made an election under this section is deemed received on the 
date of electronic submission.
    (4) A party who elects to engage in electronic mail filing may file 
any pleading, or portion of a pleading as described in paragraph (k) of 
this section, by non-electronic means.
    (5) A party may rescind an election to engage in electronic mail 
filing at any time by filing notice of the rescission with the judge 
or, if applicable, the Clerk and serving notice of the rescission on 
the other parties.
    (g) Board acknowledgement of electronic filing. The Board will 
acknowledge receipt of a pleading filed by electronic mail by sending 
an electronic mail confirmation of receipt.
    (h) Failed electronic mail service. If an attempt to serve a 
pleading or document upon the Board or a party by electronic mail is 
unsuccessful, the sending party must attempt to resolve the problem. If 
electronic service cannot be accomplished within a reasonable period, 
the sending party must serve a copy of the pleading by one of the other 
means authorized in, and as provided by, Sec.  1201.26(b)(2) of subpart 
B.
    (i) Requirements relating to electronic mail. Parties should 
include the title of the pleading, the Board docket number, and the 
case title, e.g. Doe v. Agency, in the subject heading of any 
electronic mail served upon the Board or another party. Pleadings up to 
two paragraphs in length may be included in the body of an electronic 
mail. Pleadings exceeding two paragraphs in length must be served as an 
attachment, or attachments, to an electronic mail.
    (j) Attachments to electronic mail pleadings. (1) Electronic mail 
attachments may be in any widely-used electronic format.
    (2) If a recipient is unable to view, open, or print an electronic 
mail attachment sent with a pleading, the recipient shall be 
responsible for informing the sender of the problem as soon as 
practicable and identifying all attachments that could not be viewed, 
opened, or printed. In response to such a report, the sending party 
shall attempt to resolve the problem as soon as practicable. In the 
event that problems relating to the transmission of the document cannot 
be resolved, the sending party shall have three calendar days to send a 
paper copy of all identified attachments to the complaining party.
    (3) Electronic mail documents and all attachments must be formatted 
so that they will print on standard 8\1/2\ inch by 11 inch paper.
    (4) Documents that can only be converted to electronic format by 
scanning may not be filed electronically if the length of the paper 
document exceeds 25 pages.
    (k) Hybrid pleadings containing both electronic files and paper 
documents. A party who has elected electronic mail filing under this 
section may file a hybrid pleading in which part of the pleading is 
submitted electronically, and part of the pleading consists of one or 
more paper documents filed by non-electronic means. When a hybrid

[[Page 59862]]

pleading is submitted, the electronic mail submission shall inform the 
Board and the other party of the portions of the pleading being 
submitted by non-electronic means. A hybrid pleading is deemed filed 
and served when all parts of the pleading have been filed and served.
    (l) Certificates of Service for e-mail pleadings filed or served by 
electronic mail. If a pleading is served by electronic mail, the 
address portion of the electronic-mail message shall serve as the 
certificate of service.
    (m) Use of electronic filing and service subject to control by the 
Judge and the Clerk of the Board. In the event that the Board or the 
parties encounter repeated or unexplained difficulties filing, serving, 
or receiving electronic mail pleadings, documents, or attachments, the 
judge or the Clerk of the Board may order a party to cease filing and 
serving pleadings by electronic mail and may cease the Board's use of 
electronic mail to serve documents. In such instances, filing and 
service shall be undertaken in accordance with Sec.  1201.26 of subpart 
B. The authority to order the cessation of the use of electronic mail 
may be for a particular submission, a particular time frame, or for the 
duration of the pendency of a case.
    (n) Requirements relating to documents requiring a signature. An 
electronic document filed by a party who has elected to engage in 
electronic mail filing pursuant to this section shall be deemed to be 
signed for purposes of any regulation in part 1201, 1203, 1208, or 1209 
of this title that requires a signature. An electronically filed 
document shall constitute a declaration made under penalty of perjury 
if it contains the statement required by 28 U.S.C. 1746, as set forth 
in Appendix IV of this part.
    (o) Authority of a judge or the Clerk of the Board to require 
signed submissions. A judge or the Clerk of the Board may require that 
any document filed electronically be submitted in non-electronic form 
and bear the written signature of the submitter. A party receiving such 
an order from a judge or the Clerk of the Board shall, within 5 
calendar days, serve on the judge or Clerk of the Board by regular 
mail, by facsimile, or by commercial or personal delivery a signed non-
electronic copy of the document.

0
4. Section 1201.22 is amended by revising paragraph (d) and by adding 
new paragraphs (e) and (f) to read as follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

* * * * *
    (d) Method of filing an appeal. Filing of an appeal must be made 
with the appropriate Board office by personal or commercial delivery, 
by facsimile, by mail, or by the Internet filing option described in 
paragraph (e) of this section.
    (e) Internet filing option. An appeal may be filed electronically 
by using the electronic filing option available at the Board's Web site 
(http://www.mspb.gov/e-appeal.html).
    (f) Filing a response. Filing of a response must be made with the 
appropriate Board office by personal or commercial delivery, by 
facsimile, by mail, or by electronic mail as specified in Sec.  1201.5 
of this part.

0
5. Section 1201.24 is amended by revising paragraph (a), subparagraph 
(a)(9), and paragraph (c) to read as follows:


Sec.  1201.24  Content of an appeal; right to hearing.

    (a) Content. Only an appellant, his or her designated 
representative, or a party properly substituted under Sec.  1201.35 may 
file an appeal. Appeals may be in any format, including letter form. 
Electronic appeals must be filed using the Board's Internet filing 
option. All appeals must contain the following:
* * * * *
    (9) The signature of the appellant or, if the appellant has a 
representative, of the representative. If using the Internet filing 
option, the appellant or the appellant's representative must complete 
the electronic signature portion of the Board's Internet filing option 
in accordance with instructions at the Board's Web site, as set forth 
in Sec.  1201.5 of this part.
* * * * *
    (c) Use of Board form or Internet filing option. An appellant may 
comply with paragraph (a) of this section, and with Sec.  1201.31 of 
this part, by completing MSPB Form 185, or by completing all requests 
for information marked as required in the Internet filing option. Both 
MSPB Form 185 and the Internet filing option can be accessed at the 
Board's Web site (http://www.mspb.gov/e-appeal.html).

0
6. Section 1201.26 is amended by revising paragraph (a), paragraph 
(b)(2), and paragraph (c) to read as follows:


Sec.  1201.26  Number of pleadings, service, and response.

    (a) Number. The appellant must file two copies of both the appeal 
and all attachments with the appropriate Board office, unless the 
appellant files an appeal under the Board's Internet filing option.
    (b) Service--(1) * * *
    (2) Service by the parties. The parties must serve on each other 
one copy of each pleading, as defined by Sec.  1201.4(b), and all 
documents submitted with it, except for the appeal. They may do so by 
mail, by facsimile, by personal or commercial delivery, or by 
electronic mail in accordance with Sec.  1201.5 of this part. Documents 
and pleadings must be served upon each party and each representative. A 
certificate of service stating how and when service was made must 
accompany each pleading. The parties must notify the appropriate Board 
office and one another, in writing, of any changes in the names, or 
addresses on the service list.
    (c) Paper size. Pleadings and attachments must be filed on 8\1/2\ 
by 11-inch paper, except for good cause shown. This requirement enables 
the Board to comply with standards established for U.S. courts. 
Requirements for pleadings and attachments filed electronically are set 
forth in Sec. Sec.  1201.4 and 1201.5 of this part.

0
7. Section 1201.27 is amended by adding new paragraph (d) as follows:


Sec.  1201.27  Class appeals.

* * * * *
    (d) Electronic filing. A request to hear a case as a class appeal 
and any opposition thereto may not be filed by electronic mail or by 
using the Board's Internet filing option. Subsequent pleadings may be 
filed and served as provided in Sec.  1201.5 of this part.

0
8. Section 1201.31 is amended by revising paragraph (a) to read as 
follows:


Sec.  1201.31  Representatives.

    (a) Procedure. A party to an appeal may be represented in any 
matter related to the appeal. Parties may designate a representative, 
revoke such a designation, and change such a designation in a signed 
submission as follows:
    (1) By written pleading. Provided the filing and service 
requirements in Sec.  1201.26 of this subpart are satisfied, parties 
may designate a representative, revoke a representative's designation, 
or change representatives, in writing.
    (2) By using the Board's Internet filing option. Parties are 
allowed to designate a representative when filing an appeal using the 
Board's Internet filing option. This means of designation may only be 
used when filing an appeal using the Internet filing option.
    (3) By electronic mail. Provided the requirements in Sec.  1201.5 
of this part are satisfied, parties may designate a representative, 
revoke a representative's designation, or change representatives

[[Page 59863]]

by e-mail filed with the Board and served on the other parties.
* * * * *

0
9. Section 1201.114 is amended by revising paragraphs (c), (e), (f) 
introductory text, and (h) to read as follows:


Sec.  1201.114  Filing petition and cross petition for review.

* * * * *
    (c) Place for filing. A petition for review, cross petition for 
review, responses to those petitions, and all motions and pleadings 
associated with them must be filed with the Clerk of the Merit Systems 
Protection Board, Washington, DC 20419, by personal or commercial 
delivery, by facsimile, by mail, or by electronic mail in accordance 
with Sec.  1201.5 of this part.
* * * * *
    (e) Extension of time to file. The Board will grant a motion for 
extension of time to file a petition for review, a cross petition, or a 
response only if the party submitting the motion shows good cause. 
Motions for extensions must be filed with the Clerk of the Board 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 to part 1201.) 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.
    (f) Late filings. Any petition for review, cross petition for 
review, or response 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 (e) 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 to part 1201.) The affidavit or sworn 
statement must include:
* * * * *
    (h) Service. A party submitting a pleading must serve a copy of it 
on each party and on each representative as provided in Sec.  1201.5 or 
Sec.  1201.26(b)(2) of this part.
* * * * *

0
10. Section 1201.122 is amended by revising paragraphs (b) and (d) and 
by adding a new paragraph (e) to read as follows:


Sec.  1201.122  Filing complaint; serving documents on parties.

* * * * *
    (b) Initial filing and service. The Special Counsel must file two 
copies 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 or the party's representative, as shown on the 
certificate of service. The initial filing in a complaint may not be 
filed by electronic mail or by using the Internet filing option.
* * * * *
    (d) Method of filing and service. Filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by personal or 
commercial delivery to each party or the party's representative, as 
shown on the certificate of service.
    (e) Electronic mail filing. All pleadings, other than the 
complaint, may be filed and served by electronic mail, provided the 
requirements in Sec.  1201.5 of this part are satisfied.

0
11. Section 1201.128 is amended by revising paragraphs (b) and (d) and 
by adding a new paragraph (e) to read as follows:


Sec.  1201.128  Filing complaint; serving documents on parties.

* * * * *
    (b) Initial filing and service. The Special Counsel must file two 
copies 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. The certificate of 
service must show the last known address, telephone number, and 
facsimile number of the agency or its representative, and each person 
on whose behalf the corrective action is brought. The Special Counsel 
must serve a copy of the complaint on the agency or its representative, 
and each person on whose behalf the corrective action is brought, as 
shown on the certificate of service. The initial filing in a complaint 
may not be filed by electronic mail or by using the Internet filing 
option.
* * * * *
    (d) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the office 
determined under paragraph (a) of this section. Service may be by mail, 
by facsimile, or by personal or commercial delivery to each party or 
the party's representative, as shown on the certificate of service.
    (e) Electronic mail filing. All pleadings, other than the 
complaint, may be filed and served by electronic mail, provided the 
requirements in Sec.  1201.5 of this part are satisfied.

0
12. Section 1201.134 is amended by revising paragraphs (d) and (f) and 
by adding a new paragraph (g) to read as follows:


Sec.  1201.134  Deciding official; filing stay request; serving 
documents on parties.

* * * * *
    (d) Initial filing and service. The Special Counsel must file two 
copies 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. The initial 
filing in a request for a stay may not be filed by electronic mail or 
by using the Internet filing option.
* * * * *
    (f) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by personal or 
commercial delivery to each party or the party's representative, as 
shown on the certificate of service.
    (g) Electronic mail filing. All pleadings, other than the 
complaint, may be filed and served by electronic mail, provided the 
requirements in Sec.  1201.5 of this part are satisfied.

0
13. Section 1201.137 is amended by revising paragraphs (c) and (e) and 
by adding a new paragraph (f) to read as follows:


Sec.  1201.137  Covered actions; filing complaint; serving documents on 
parties.

* * * * *
    (c) Initial filing and service. The agency must file two copies 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

[[Page 59864]]

copy of the complaint on each party or the party's representative, as 
shown on the certificate of service. The initial filing in a complaint 
may not be filed by electronic mail or by using the Internet filing 
option.
* * * * *
    (e) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery to the Clerk of the 
Board. Service may be by mail, by facsimile, or by commercial or 
personal delivery to each party or the party's representative, as shown 
on the certificate of service.
    (f) Electronic mail service and filing. All pleadings, other than 
the complaint, may be filed and served by electronic mail, provided the 
requirements in Sec.  1201.5 of this part are satisfied.

0
14. Section 1201.143 is amended by revising paragraphs (c) and (e) and 
by adding a new paragraph (f) to read as follows:


Sec.  1201.143  Right to hearing; filing complaint; serving documents 
on parties.

* * * * *
    (c) Initial filing and service. 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. The initial 
filing may not be filed by electronic mail or by using the Internet 
filing option.
* * * * *
    (e) Method of filing and service. A filing may be by mail, by 
facsimile, or by personal or commercial delivery, to the office 
determined under paragraph (b) of this section. Service may be by mail, 
by facsimile, or by personal or commercial delivery to each party or 
the party's representative, as shown on the certificate of service.
    (f) Electronic mail service and filing. All pleadings, other than 
the initial complaint, may be filed and served by electronic mail, 
provided the requirements in Sec.  1201.5 of this part are satisfied.

0
15. Section 1201.153 is amended by revising paragraph (b) to read as 
follows:


Sec.  1201.153  Contents of appeal.

* * * * *
    (b) Use of Board form or Internet filing option. An appellant may 
comply with paragraph (a) of this section by completing MSPB Form 185, 
or by completing all requests for information marked as required in the 
Internet filing option. Both MSPB Form 185 and the Internet filing 
option can be accessed at the Board's Web site (http://www.mspb.gov/e-appeal.html).

0
16. Section 1201.173 is amended by adding new paragraph (k) to read as 
follows:


Sec.  1201.173  Practices and procedures of Special Panel.

* * * * *
    (k) Electronic mail filing and service. Pleadings in matters before 
the Special Panel may not be filed or served using electronic mail.

Appendix I to Part 1201--[Reserved]

0
17. Remove and reserve appendix I to part 1201.

PART 1203--[AMENDED]

0
18. The authority citation for part 1203 continues to read as follows:

    Authority: 5 U.S.C. 1204.

0
19. Section 1203.13 is amended by revising paragraph (d) to read as 
follows:


Sec.  1203.13  Filing pleadings.

* * * * *
    (d) Method and date of filing. An initial filing in a request for 
review of a regulation may be filed with the Office of the Clerk either 
by mail, by personal or commercial delivery, or by facsimile. 
Pleadings, other than an initial request for a regulation review under 
this part, may be filed with the Office of the Clerk either by mail, by 
personal or commercial delivery, by facsimile, or by electronic mail in 
accordance with Sec.  1201.5 of this chapter. If the document was 
submitted by certified mail, it is considered to have been filed on the 
mailing date. If it was submitted by regular mail, it is presumed to 
have been filed five days before the Office of the Clerk receives it, 
in the absence of evidence contradicting that presumption. If it was 
delivered personally, it is considered to have been filed on the date 
the Office of the Clerk receives it. If it was submitted by facsimile, 
the date of the facsimile is considered to be the filing date. If it 
was submitted by commercial delivery, the date of filing is the date it 
was delivered to the commercial delivery service. If it was submitted 
by electronic mail, it is considered to have been filed on the date 
sent.
* * * * *

0
20. Section 1203.14 is amended by revising paragraph (b) and adding new 
paragraph (c) to read as follows:


Sec.  1203.14  Serving documents.

* * * * *
    (b) Method of serving documents. Pleadings may be served on parties 
by mail, by personal delivery, by facsimile, or by commercial delivery. 
Service by mail is accomplished by mailing the pleading to each party 
or representative, at the party's or representative's last known 
address. Service by facsimile is accomplished by transmitting the 
pleading by facsimile to each party or representative. Service by 
personal delivery or by commercial delivery is accomplished by 
delivering the pleading to the business office or home of each party or 
representative and leaving it with the party or representative, or with 
a responsible person at that address. Regardless of the method of 
service, the party serving the document must submit to the Board, along 
with the pleading, a certificate of service as proof that the document 
was served on the other parties or their representatives. The 
certificate of service must list the names and addresses of the persons 
on whom the pleading was served, must state the date on which the 
pleading was served, must state the method (i.e., mail, personal 
delivery, facsimile, or commercial delivery) by which service was 
accomplished, and must be signed by the person responsible for 
accomplishing service.
    (c) Electronic mail filing and service. Other than the initial 
request for a regulation review, pleadings in a regulation review 
proceeding may be filed with the Board and served upon other parties by 
electronic mail, provided the requirements in Sec.  1201.5 of this 
chapter are satisfied.

0
21. Section 1203.22 is amended by revising paragraph (a) to read as 
follows:


Sec.  1203.22  Enforcement of order.

    (a) Any party may ask the Board to enforce a final order it has 
issued under this part. The request may be made by filing a petition 
for enforcement with the Office of the Clerk of the Board and by 
serving a copy of the petition on each party to the regulation review. 
The request may be filed by electronic mail, provided the requirements 
in Sec.  1201.5 of this part are satisfied. The petition must include 
specific reasons why the petitioning party believes that there has been 
a failure to comply with the Board's order.
* * * * *

PART 1208--[AMENDED]

0
22. The authority citation for part 1208 continues to read as follows:


[[Page 59865]]


    Authority: 5 U.S.C. 1204(h), 3330a, 3330b, 38 U.S.C. 4331.

0
23. Section 1208.13 is amended by adding new paragraph (c) to read as 
follows:


Sec.  1208.13  Content of appeal; request for hearing.

* * * * *
    (c) Internet filing option. An appeal may be filed electronically 
by using the Board's Internet filing option available at the Board's 
Web site (http://www.mspb.gov/e-appeal.html).

0
24. Section 1208.14 is revised to read as follows:


Sec.  1208.14  Representation by Special Counsel.

    The Special Counsel may represent an appellant in a USERRA appeal 
before the Board. A written statement (in any format) that the 
appellant submitted a written request to the Secretary of Labor that 
the appellant's complaint under 38 U.S.C. 4322(a) be referred to the 
Special Counsel for litigation before the Board, and that the Special 
Counsel has agreed to represent the appellant, will be accepted as the 
written designation of representative required by 5 CFR 1201.31(a). The 
designation of representative may be filed by electronic mail, provided 
the requirements in Sec.  1201.5 of this chapter are satisfied.

0
25. Section 1208.23 is amended by adding new paragraph (c) to read as 
follows:


Sec.  1208.23  Content of appeal; request for hearing.

* * * * *
    (c) Internet filing option. An appeal may be filed electronically 
by using the Board's Internet filing option available at the Board's 
Web site (http://www.mspb.gov/e-appeal.html).

0
26. Section 1208.24 is amended by revising paragraph (a) to read as 
follows:


Sec.  1208.24  Election to terminate MSPB proceeding.

    (a) Election to terminate. At any time beginning on the 121st day 
after an appellant files a VEOA appeal with the Board, if a judicially 
reviewable Board decision on the appeal has not been issued, the 
appellant may elect to terminate the Board proceeding as provided under 
5 U.S.C. 3330b and file a civil action with an appropriate United 
States district court. Such election must be in writing, signed, filed 
with the Board office where the appeal is being processed, and served 
on the parties. The election is effective immediately on the date of 
receipt by the Board office where the appeal is being processed. The 
election may be filed by electronic mail provided the requirements in 
Sec.  1201.5 of this chapter are satisfied.
* * * * *

PART 1209--[AMENDED]

0
27. The authority citation for part 1209 continues to read as follows:

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

0
28. Section 1209.6 is amended by adding new paragraph (d) to read as 
follows:


Sec.  1209.6  Content of appeal; right to hearing.

* * * * *
    (d) Internet filing option. An appeal may be filed electronically 
by using the Board's Internet filing option available at the Board's 
Web site (http://www.mspb.gov/e-appeal.html).

0
29. Section 1209.8 is amended by revising paragraphs (a) and (d) and by 
adding new paragraphs (e) and (f) to read as follows:


Sec.  1209.8  Filing a request for a stay.

    (a) Time of filing. An appellant may request a stay of a personnel 
action allegedly based on whistleblowing at any time after the 
appellant becomes eligible to file an appeal with the Board under Sec.  
1209.5 of this part, but no later than the time limit set for the close 
of discovery in the appeal. The request may be filed prior to, 
simultaneous with, or after the filing of an appeal.
* * * * *
    (d) Method of filing. A stay request must be filed with the 
appropriate Board regional or field office by personal delivery, by 
facsimile, by mail, or by commercial delivery.
    (e) Internet filing option. An appeal may be filed electronically 
by using the Board's Internet filing option available at the Board's 
Web site (http://www.mspb.gov/e-appeal.html).
    (f) Electronic mail option. A stay request, made after the filing 
of an appeal, may be filed by electronic mail after the filing of the 
appeal, provided the requirements in Sec.  1201.5 of this chapter are 
satisfied.

    Dated: October 10, 2003.
Bentley M. Roberts,
Clerk of the Board.
[FR Doc. 03-26172 Filed 10-17-03; 8:45 am]
BILLING CODE 7400-01-P