[Federal Register Volume 70, Number 241 (Friday, December 16, 2005)]
[Proposed Rules]
[Pages 74714-74717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24117]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 241 / Friday, December 16, 2005 / 
Proposed Rules  

[[Page 74714]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1216


Testimony by MSPB Employees and Production of Official Records in 
Legal Proceedings

AGENCY: Merit Systems Protection Board.

ACTION: Proposed rule.

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SUMMARY: The Merit Systems Protection Board seeks public comment on a 
proposed rule that would set out procedures that requesters would have 
to follow when making demands on or requests to an MSPB employee to 
produce official records or provide testimony relating to official 
information in connection with a legal proceeding in which the MSPB is 
not a party. The rule would establish procedures to respond to such 
demands and requests in an orderly and consistent manner. The proposed 
rule will promote uniformity in decisions, protect confidential 
information, provide guidance to requesters, and reduce the potential 
for both inappropriate disclosures of official information and wasteful 
allocation of agency resources.

DATES: Comments must be received on or before February 14, 2006.

ADDRESSES: Send or deliver comments to the Office of the Clerk of the 
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; fax: (202) 653-7130; or e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Bentley M. Roberts, Clerk of the 
Board, U.S. 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:

Background

    The MSPB occasionally receives subpoenas and requests for MSPB 
employees to provide evidence or testimony in litigation in which MSPB 
is not a party. Usually the subpoenas or requests for records are for 
the MSPB's records that are not available to the public under the 
Freedom of Information Act (FOIA). The MSPB may also receive a request 
for an MSPB employee to provide testimony relating to materials 
contained in the MSPB's official records or to provide testimony or 
information acquired by an MSPB employee during the performance of the 
MSPB employee's official duties.
    Responding to such demands and requests may result in a significant 
disruption of an MSPB employee's work schedule and possibly involve the 
MSPB in issues unrelated to its responsibilities. In order to resolve 
these problems, many agencies have issued regulations, similar to the 
proposed regulation, governing the circumstances and manner in which an 
employee may respond to demands for testimony or for the production of 
documents. The United States Supreme Court upheld this type of 
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).
    Briefly summarized, the proposed rule will prohibit disclosure of 
nonpublic official records or testimony by the MSPB's employees, as 
defined in Part 1216.103(e), unless there is compliance with the rule. 
The proposed rule sets out the information that requesters must provide 
and the factors that the MSPB will consider in making determinations in 
response to requests for testimony or the production of documents.
    The charges for witnesses are the same as those provided in Federal 
courts; and the fees related to production of records are the same as 
those charged under FOIA. The charges for time spent by an employee to 
prepare for testimony and for searches, copying, and certification of 
records by the MSPB are authorized under 31 U.S.C. 9701, which permits 
an agency to charge for services or things of value that are provided 
by the agency.
    This rule applies to a range of matters in any legal proceeding in 
which the MSPB is not a named party. It also applies to former and 
current MSPB employees (as well as to MSPB consultants and advisors). 
Former MSPB employees are prohibited from testifying about specific 
matters for which they had responsibility during their active 
employment unless permitted to testify as provided in the rule. They 
would not be prohibited from testifying about general matters 
unconnected with the specific MSPB matters for which they had 
responsibility.
    This rule will ensure a more efficient use of the MSPB's resources, 
minimize the possibility of involving the MSPB in issues unrelated to 
its responsibilities, promote uniformity in responding to such 
subpoenas and like requests, and maintain the impartiality of the MSPB 
in matters that are in dispute between other parties. It will also 
serve the MSPB's interest in protecting sensitive, confidential, and 
privileged information and records that are generated in fulfillment of 
the MSPB's statutory responsibilities.
    This rule is internal and procedural rather than substantive. It 
does not create a right to obtain official records or the official 
testimony of an MSPB employee nor does it create any additional right 
or privilege not already available to MSPB to deny any demand or 
request for testimony or documents. Failure to comply with the 
procedures set out in these regulations would be a basis for denying a 
demand or request submitted to the MSPB.

List of Subjects in 5 CFR Part 1216

    Administrative practice and procedure.

    For the reasons stated in the preamble, the Merit Systems 
Protection Board proposes to amend 5 CFR, chapter II as set forth 
below:

PART 1211--[RESERVED]

PART 1212--[RESERVED]

PART 1213--[RESERVED]

PART 1214--[RESERVED]

PART 1215--[RESERVED]

PART 1216--TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFICIAL 
INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS

Subpart A--General Provisions

Sec.
1216.101 Scope and Purpose.
1216.102 Applicability.

[[Page 74715]]

1216.103 Definitions.
Subpart B--Demands or Requests for Testimony and Production of 
Documents
1216.201 General Prohibition.
1216.202 Factors the MSPB will consider.
1216.203 Filing requirements for litigants seeking documents or 
testimony.
1216.204 Service of requests or demands.
1216.205 Processing requests or demands.
1216.206 Final determinations.
1216.207 Restrictions that apply to testimony.
1216.208 Restrictions that apply to released records.
1216.209 Procedure when a decision is not made prior to the time a 
response is required.
1216.210 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
1216.301 Fees.
Subpart D--Penalties
1216.401 Penalties.

    Authority: 5 U.S.C. Sec.  1204(h); 31 U.S.C. Sec.  9701.

Subpart A--General Provisions


Sec.  1216.101  Scope and Purpose.

    (a) These regulations establish policy, assign responsibilities and 
prescribe procedures with respect to:
    (1) the production or disclosure of official information or records 
by MSPB employees, advisors, and consultants; and
    (2) the testimony of current and former MSPB employees, advisors, 
and consultants relating to official information, official duties, or 
the MSPB's records, in connection with federal or state litigation in 
which the MSPB is not a party.
    (b) The MSPB intends these provisions to:
    (1) Conserve the time of MSPB employees for conducting official 
business;
    (2) Minimize the involvement of MSPB employees in issues unrelated 
to MSPB's mission;
    (3) Maintain the impartiality of MSPB employees in disputes between 
private litigants; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of the MSPB.
    (c) In providing for these requirements, the MSPB does not waive 
the sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of 
MSPB. It does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.


Sec.  1216.102  Applicability.

    This part applies to demands and requests to current and former 
employees, advisors, and consultants for factual or expert testimony 
relating to official information or official duties or for production 
of official records or information, in legal proceedings in which the 
MSPB is not a named party. This part does not apply to:
    (a) Demands upon or requests for an MSPB employee to testify as to 
facts or events that are unrelated to his or her official duties or 
that are unrelated to the functions of the MSPB;
    (b) Demands upon or requests for a former MSPB employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at the MSPB;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
    (d) Congressional demands and requests for testimony, records or 
information.


Sec.  1216.103  Definitions.

    The following definitions apply to this part.
    (a) Demand means an order, subpoena, or other command of a court or 
other competent authority for the production, disclosure, or release of 
records or for the appearance and testimony of an MSPB employee in a 
legal proceeding.
    (b) General Counsel means the General Counsel of the MSPB or a 
person to whom the General Counsel has delegated authority under this 
part.
    (c) Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    (d) MSPB means the Merit Systems Protection Board.
    (e) MSPB employee or employee means:
    (L) (i) Any current or former employee of the MSPB;
    (ii) Any other individual hired through contractual agreement by or 
on behalf of the MSPB or who has performed or is performing services 
under such an agreement for the MSPB; and
    (iii) Any individual who served or is serving in any consulting or 
advisory capacity to the MSPB, whether formal or informal.
    (2) This definition does not include:
    Persons who are no longer employed by the MSPB and who agree to 
testify about general matters, matters available to the public, or 
matters with which they had no specific involvement or responsibility 
during their employment with the MSPB.
    (f) Records or official records and information means:
    All information in the custody and control of the MSPB, relating to 
information in the custody and control of the MSPB, or acquired by an 
MSPB employee in the performance of his or her official duties or 
because of his or her official status, while the individual was 
employed by or on behalf of the MSPB.
    (g) Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court or other competent authority
    (h) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.

Subpart B--Demands or Requests for Testimony and Production of 
Documents


Sec.  1216.201  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.


Sec.  1216.202  Factors the MSPB will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the General 
Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) Allowing such testimony or production of records would assist 
or hinder the MSPB in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in 
the best interest of the MSPB or the United States;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise 
inappropriate

[[Page 74716]]

under the applicable rules of discovery or the rules of procedure 
governing the case or matter in which the demand or request arose;
    (g) Disclosure would violate a statute, Executive Order or 
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential or financial 
information, otherwise protected information, or information which 
would otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights or national security interests;
    (j) Disclosure would result in the MSPB appearing to favor one 
litigant over another;
    (k) Whether the request was served before the demand;
    (l) A substantial Government interest is implicated;
    (m) The demand or request is within the authority of the party 
making it; and
    (n) The demand or request is sufficiently specific to be answered.


Sec.  1216.203  Filing requirements for litigants seeking documents or 
testimony.

    A litigant must comply with the following requirements when filing 
a request for official records and information or testimony under 
Subpart 1216. A request should be filed before a demand.
    (a) The request must be in writing and must be submitted to the 
Clerk of the Board who will immediately forward the request to the 
General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
any need to maintain the confidentiality of the information and 
outweighs the burden on the MSPB to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than an MSPB employee, such as a 
retained expert;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require for each MSPB employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The MSPB reserves the right to require additional information 
to complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the 
date that records or testimony is required. Requests submitted in less 
than 30 days before records or testimony is required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with the request.
    (f) The request should state that the requester will provide a copy 
of the MSPB employee's statement free of charge and that the requester 
will permit the MSPB to have a representative present during the 
employee's testimony.


Sec.  1216.204  Service of requests or demands.

    Requests or demands for official records or information or 
testimony under this Subpart must be served on the Clerk of the Board, 
U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 
20419-0002 by mail, fax, or e-mail and clearly marked ``Part 1216 
Request for Testimony or Official Records in Legal Proceedings.'' The 
request or demand will be immediately forwarded to the General Counsel 
for processing.


Sec.  1216.205  Processing requests or demands.

    (a) After receiving service of a request or demand for testimony, 
the General Counsel will review the request and, in accordance with the 
provisions of this Subpart, determine whether, or under what 
conditions, to authorize the employee to testify on matters relating to 
official information and/or produce official records and information.
    (b) Absent exigent circumstances, the MSPB will issue a 
determination within 30 days from the date the request is received.
    (c) The General Counsel may grant a waiver of any procedure 
described by this Subpart where a waiver is considered necessary to 
promote a significant interest of the MSPB or the United States, or for 
other good cause.
    (d) Certification (authentication) of copies of records. The MSPB 
may certify that records are true copies in order to facilitate their 
use as evidence. If a requester seeks certification, the requester must 
request certified copies from the MSPB at least 30 days before the date 
they will be needed. The request should be sent to the Clerk of the 
Board.


Sec.  1216.206  Final determination.

    The General Counsel makes the final determination on demands or 
requests to employees for production of official records and 
information or testimony in litigation in which the MSPB is not a 
party. All final determinations are within the sole discretion of the 
General Counsel. The General Counsel will notify the requester and, 
when appropriate, the court or other competent authority of the final 
determination, the reasons for the grant or denial of the request, and 
any conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of an MSPB employee. The 
General Counsel's decision exhausts administrative remedies for 
discovery of the information.


Sec.  1216.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of MSPB employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only in the particular legal proceeding for which testimony was 
requested. The General Counsel may also require a copy of the 
transcript of testimony at the requester's expense.
    (b) The MSPB may offer the employee's written declaration in lieu 
of testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal

[[Page 74717]]

knowledge, but, unless specifically authorized to do so by the General 
Counsel, the employee shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current MSPB employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or the functions of the MSPB unless testimony is being 
given on behalf of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to the MSPB's approval.


Sec.  1216.208  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure. The terms of the protective order or of a confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, the MSPB may condition the release of official records and 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original MSPB records may 
be presented for examination in response to a request, but they may not 
be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official MSPB records, nor may they be 
marked or altered. In lieu of the original records, certified copies 
may be presented for evidentiary purposes.


Sec.  1216.209  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec.  1216.206, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the request is being reviewed, provide an 
estimate as to when a decision will be made, and seek a stay of the 
demand or request pending a final determination.


Sec.  1216.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the General Counsel, will appear, if necessary, at 
the stated time and place, produce a copy of this part, state that the 
employee has been advised by counsel not to provide the requested 
testimony or produce documents, and respectfully decline to comply with 
the demand or request, citing United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951).

Subpart C--Schedule of Fees


Sec.  1216.301  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to the MSPB.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowances, and benefits). Fees for duplication will be the same as 
those charged by the MSPB in its Freedom of Information Act regulations 
at 5 CFR Part 1204.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees 
will include cost of time spent by the witness to prepare for 
testimony, in travel and for attendance in the legal proceeding, plus 
travel costs.
    (d) Payment of fees. A requester must pay witness fees for current 
MSPB employees and any record certification fees by submitting to the 
Clerk of the Board a check or money order for the appropriate amount 
made payable to the Treasury of the United States. In the case of 
testimony of former MSPB employees, the requester must pay applicable 
fees directly to the former MSPB employee in accordance with 28 U.S.C. 
1821 or other applicable statutes.
    (e) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec.  1216.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by the MSPB, or as ordered by a Federal court after the MSPB 
has had the opportunity to be heard, may face the penalties provided in 
18 U.S.C. 641 and other applicable laws. Additionally, former MSPB 
employees are subject to the restrictions and penalties of 18 U.S.C. 
207 and 216.
    (b) A current MSPB employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action.

    Dated: December 12, 2005.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 05-24117 Filed 12-15-05; 8:45 am]
BILLING CODE 7400-01-P