[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Rules and Regulations]
[Pages 10127-10130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3515]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 38 / Tuesday, February 26, 2008 / 
Rules and Regulations  

[[Page 10127]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201, 1203, 1208, and 1209


Final Rule for Implementation of Electronic Filing

AGENCY: Merit Systems Protection Board.

ACTION: Final rule with request for comments.

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

SUMMARY: The Merit Systems Protection Board (MSPB) is adopting as a 
final rule the interim rule governing electronic filing (e-filing) that 
it promulgated in 2003, as amended the following year, and as further 
amended by the present notice. When first promulgated in 2003, the 
online application was restricted to the filing of new appeals; 
subsequent documents could only be delivered via electronic mail (e-
mail). A year later, we modified the rule to reflect that e-Appeal 
Online could be used to file almost any type of pleading. As further 
modified in the present Notice, the rule recognizes the MSPB's online 
Repository of case-related documents that enables parties and their 
representatives to access the pleadings and MSPB issuances related to 
the particular employment controversies in which they are involved. The 
modified rule also contains a requirement that e-filers who include 
three (3) or more attachments with a pleading describe each attachment. 
Finally, although not a part of this final rule, the MSPB is giving 
serious consideration to making e-filing mandatory for agencies and 
attorneys who represent appellants in MSPB proceedings. Although any 
such rule could only be issued following a new Federal Register notice, 
we welcome comments on this issue at the present time.

DATES: This rule is effective April 28, 2008. Written comments should 
be submitted on or before March 27, 2008.

ADDRESSES: Send or deliver comments to the Office of 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: William D. Spencer, 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: Before describing the changes being made to 
our regulations at this time, we note that the MSPB did not receive any 
comments from the public to the interim rule promulgated in 2003, 68 FR 
59859, nor to the 2004 modifications to that rule, 69 FR 57627.

Summary of Significant Changes

1. Repository at e-Appeal Online (paragraph (i))

    Beginning in July 2007, the MSPB has maintained a Repository at e-
Appeal Online (https://e-appeal.mspb.gov) that contains the electronic 
documents that relate to MSPB appeals, including all notices, orders, 
decisions, and other documents issued by the MSPB to the parties, as 
well as pleadings filed via e-Appeal Online. In addition, virtually all 
pleadings filed at the petition for review stage of adjudication, even 
if filed in paper form, and some pleadings filed at the regional office 
level, are available at the Repository. Also available at the 
Repository is an electronic ``docket sheet'' that lists all documents 
issued by the MSPB to the parties, as well as all pleadings filed by 
the parties, including those pleadings that are not available for 
viewing and downloading in electronic form. When the MSPB issues a 
document to the parties, or when an electronic pleading is filed by an 
e-filer, an e-mail message is generated to all e-filers in the case 
notifying them of the new pleading or MSPB issuance, and providing a 
link to the document at the Repository. (See paragraph (j).) Access to 
appeal documents at the Repository is limited to the parties and 
representatives of the cases in which they were filed.
    In the very near future, all pleadings added to the Repository will 
be full-text searchable, including printed materials that have been 
converted to electronic format by scanning. This will be accomplished 
using optical character recognition software that converts image-only 
electronic formats into an image-plus-text electronic format. We 
believe that making case-related documents full-text searchable will 
make it easier for both the parties to MSPB proceedings and the MSPB 
itself to search case files for pertinent materials.

2. Multiple Attachments Must be Described

    Paragraph (g)(3) requires an e-filer who is uploading three (3) or 
more supporting attachments, in addition to the document that 
constitutes the party's primary pleading, to describe each attachment. 
The reason for this requirement is to increase the utility of having 
large documents in electronic format. When attachments are described as 
required by this provision, the MSPB's software formats the pleading so 
that it includes a table of contents which lists the page number on 
which each attachment starts. In addition, the electronic Portable 
Document Format (PDF) version contains ``bookmarks'' that can be seen 
at the same time as the document itself, and clicking the bookmark for 
a particular attachment takes the user directly to that attachment.
    Although this requirement would apply to all electronic pleadings 
with three (3) or more attachments, it will have particular 
significance for the Agency File (see 5 CFR 1201.25), which is often 
the largest pleading in the case file, and which often has the most 
attachments of any pleading in the case file. We believe that any extra 
time required to describe each attachment under this rule will be 
offset by the time saved compared to the present method of producing 
the Agency File, which requires the manual production of a table of 
contents and the insertion of numerous paper dividers. In addition, 
this feature will enable all participants to cite the exact pages on 
which each attachment can be found, as all pages in e-filed pleadings, 
including attachments, are sequentially paginated by the e-Appeal 
Online software, e.g., page 1 of 125, page 2 of 125, etc. Under current 
practice, such precise citation is frequently not possible, as a 
particular attachment may consist of two pages in the middle of a group 
of documents

[[Page 10128]]

located within a single tab in the Agency File.

3. Other Changes

    Other additions and changes from the current rule include the 
following:
     The current regulation excludes the filing of the original 
complaint or request in an appeal within the MSPB's original 
jurisdiction from e-filing. That exclusion will no longer be necessary, 
as the MSPB is adding a module to e-Appeal Online that will allow such 
filings. Paragraphs (b) and (c) of section 1201.14, and sections 
1201.134(g), 1201.137(g), and 1201.143(f) have been amended to reflect 
this change.
     Paragraph (e)(3) has been modified to provide that, when a 
party has more than one representative, all representatives must choose 
the same method of service. In the interest of administrative 
efficiency, we do not believe it would be unduly burdensome to require 
all representatives to choose the same service method, be it electronic 
or postal mail. The regulation still provides that the appellant and 
his or her representative can choose different methods of service.
     Because the content of what was paragraph (e)(4) has been 
modified and redesignated as paragraph (f), and because a new paragraph 
(i) has been added regarding the Repository at e-Appeal Online, the 
designations of the materials that had been contained in paragraphs (f) 
through (m) have changed. This redesignation of paragraphs also 
required a minor change to Sec.  1201.4(k).
     Paragraph (e)(5) clarifies that registration as an e-filer 
ordinarily applies only to a single MSPB appeal, i.e., the MSPB will 
not presume that an individual who was an e-filer in one proceeding has 
opted to become an e-filer in subsequent MSPB proceedings.
     Paragraph (e)(6) mandates that e-filers notify the MSPB of 
any change in their e-mail addresses.
     Paragraph (h) provides that, in hybrid pleadings in which 
part of a pleading is submitted electronically, and one or more 
attachments is submitted in paper form, all components are subject to 
applicable time limits, and untimely filed components may be rejected 
as untimely filed. We note in this regard that an e-filer is only 
required to certify that he or she will submit the paper components 
within one business day of the electronic submission.
     Paragraph (j)(1) clarifies that paper copies of MSPB 
documents will not ordinarily be served on e-filers.
     Paragraph (j)(2) clarifies that e-filers are responsible 
for ensuring that e-mail messages from e-Appeal Online are not blocked 
by filters of one sort or another.
     Paragraph (j)(3) provides that e-filers are responsible 
for monitoring case activity. The MSPB's software automatically 
generates an e-mail message to e-filers with a link to the Repository 
whenever the MSPB issues a document to the parties, or when another e-
filer submits an electronic pleading. In addition, e-filers are 
responsible for ensuring that their e-mail accounts are not blocked by 
filters, as noted above. Nevertheless, this rule clarifies that e-
filers are still responsible for monitoring the Repository on a regular 
basis to ensure that they have received all case-related documents.
     Paragraph (m) clarifies that e-filed pleadings are stamped 
with the date and time of submission in the Eastern Time Zone, but that 
the timeliness of a pleading will be determined based on the time zone 
from which the pleading was submitted.
     Paragraph (o) clarifies that the MSPB reserves the right 
to revert to traditional methods (postal mail, fax, personal or 
commercial delivery) for serving documents on parties and 
representatives, and that parties and representatives are responsible 
for ensuring that the MSPB always has their current postal mailing 
addresses, even when they have registered as e-filers.

Possible Requirement of Mandatory E-Filing for Agencies and Attorneys

    Although not part of this final rule, the MSPB is considering 
proposing a rule that would make e-filing mandatory for agencies and 
attorneys who represent appellants. The MSPB's long-term goal is to 
have entirely electronic case files (e-case files), which we believe 
would have significant benefits both for the MSPB and the participants 
in MSPB appeals. All parties and representatives, as well as 
appropriate MSPB employees, would have access to all case-related 
documents at any time and place, as long as they had access to the 
Internet. In addition, the ability to run sophisticated full-text 
searches of the contents of the entire case file would make it easier 
for parties and the MSPB to find and cite pertinent record evidence.
    There are only two basic methods for getting the parties' pleadings 
into an electronic format for inclusion in an e-case file--they can be 
filed in an electronic format; or they can be scanned after they have 
been filed in paper form. The MSPB lacks the resources to scan all 
pleadings received in paper form, and we view that option as unduly 
labor intensive. If e-filing remains completely optional, it is 
unlikely that the MSPB will ever achieve completely electronic, 
searchable case files. If, however, all pleadings submitted by agencies 
and attorneys were e-filed, scanning the remaining paper pleadings 
would become manageable, especially considering the significant number 
of pleadings e-filed by pro se appellants.
    Although the law requires federal agencies to provide information 
and services via the Internet, it also mandates that agencies consider 
the impact on persons without access to the Internet and, to the extent 
practicable, ensure that the availability of government services has 
not been diminished for such persons. 44 U.S.C. 3501 note. Accordingly, 
the MSPB cannot make e-filing mandatory for pro se appellants. We see 
no legal restriction to making e-filing mandatory for Federal agencies 
or attorneys, however, and do not believe it would impose undue costs 
or difficulties for them. We note in this regard that e-filing is 
generally mandatory for attorneys in the Federal district courts; only 
parties proceeding on a pro se basis have the option of filing 
pleadings in paper form. We also note that, unlike e-filing in the 
Federal courts, e-Appeal Online does not require the filer to convert 
other electronic formats to PDF before filing; the MSPB's software 
accepts numerous common formats, including word-processing formats, and 
converts them to PDF. All that would be required are a computer, access 
to e-mail and the Internet, and a scanner.

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 interim rules amending 5 CFR parts 1201, 1203, 1208, 
and 1209, which were published at 68 FR 59859 on October 20, 2003, and 
at 69 FR 57627 on September 27, 2004, are adopted as final rules with 
the following changes:

[[Page 10129]]

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.  1201.4(k) to read as follows:


Sec.  1201.4  General definitions.

* * * * *
    (k) Certificate of service. A document certifying that a party has 
served copies of pleadings on the other parties or, in the case of 
paper documents associated with electronic filings under paragraph (h) 
of Sec.  1201.14, on the MSPB.
* * * * *

0
3. Section 1201.14 is revised to read as follows:


Sec.  1201.14  Electronic Filing Procedures.

    (a) General. This section prescribes the rules and procedures by 
which parties and representatives to proceedings within the MSPB's 
appellate and original jurisdiction may file and receive documents in 
electronic form.
    (b) Matters subject to electronic filing. Subject to the 
registration requirement of paragraph (e) of this section, parties and 
representatives may use electronic filing (e-filing) to do any of the 
following:
    (1) File any pleading, including a new appeal, in any matter within 
the MSPB's appellate jurisdiction (Sec.  1201.3);
    (2) File any pleading in any matter within the MSPB's original 
jurisdiction (Sec.  1201.2);
    (3) File a petition for enforcement of a final MSPB decision (Sec.  
1201.182);
    (4) File a motion for an attorney fee award as a prevailing party 
(Sec.  1201.203);
    (5) File a motion for compensatory or consequential damages (Sec.  
1201.204);
    (6) Designate a representative, revoke such a designation, or 
change such a designation (Sec.  1201.31); or
    (7) Notify the MSPB of a change in contact information such as 
address (geographic or electronic mail) or telephone number.
    (c) Matters excluded from electronic filing. Electronic filing may 
not be used to:
    (1) File a request to hear a case as a class appeal or any 
opposition thereto (Sec.  1201.27);
    (2) Serve a subpoena (Sec.  1201.83); or
    (3) File a pleading with the Special Panel (Sec.  1201.173).
    (d) Internet is sole venue for electronic filing. Following the 
instructions at e-Appeal Online, the MSPB's e-Appeal site (https://e-appeal.mspb.gov), is the only method allowed for filing electronic 
pleadings with the MSPB. The MSPB will not accept pleadings filed by 
electronic mail (e-mail).
    (e) Registration as an e-filer.
    (1) Registration as an e-filer constitutes consent to accept 
electronic service of pleadings filed by other registered e-filers and 
documents issued by the MSPB. Except when filing a new appeal within 
the MSPB's appellate jurisdiction (Sec.  1201.3), no party or 
representative may file an electronic pleading with the MSPB unless he 
or she has registered with the MSPB as an e-filer.
    (2) With the exception of a designation of a representative by a 
party who is an individual, the exclusive means for a party or 
representative to register as an e-filer during an MSPB proceeding is 
to follow the instructions at e-Appeal Online (https://e-appeal.mspb.gov).
    (3) When a party who is an individual is represented, the party and 
the representative can make separate determinations whether to register 
as an e-filer. For example, an appellant may file and receive pleadings 
and MSPB documents by non-electronic means, even though his or her 
representative has registered as an e-filer. When a party has more than 
one representative, however, all representatives must choose the same 
method of service.
    (4) A party or representative may withdraw his or her registration 
as an e-filer. Such withdrawal means that, effective upon the MSPB's 
receipt of this withdrawal, pleadings and MSPB documents will no longer 
be served on that person in electronic form. A withdrawal of 
registration as an e-filer may be filed at e-Appeal Online, in which 
case service is governed by paragraph (j) of this section, or by non-
electronic means, in which case service is governed by Sec.  
1201.26(b).
    (5) Registration as an e-filer applies only to a single MSPB appeal 
or proceeding. If an appeal is dismissed without prejudice, however, 
and is later refiled, an election of e-filing status will remain in 
effect. An election of e-filing status will also remain in effect for 
purposes of filing a petition for enforcement under Subpart F of this 
part, or filing a motion for an attorney fee award or compensatory or 
consequential damages under Subpart H of this Part.
    (6) Each e-filer must notify the MSPB and other participants of any 
change in his or her e-mail address. When done via e-Appeal Online, 
such notification is done by selecting the ``Pleading'' option.
    (f) e-Filing not mandatory for e-filers. A party or representative 
who has registered as an e-filer may file any pleading by non-
electronic means, i.e., via postal mail, fax, or personal or commercial 
delivery.
    (g) Form of electronic pleadings.
    (1) Options for e-filing. An appellant or representative using e-
Appeal Online to file a new appeal within the MSPB's appellate 
jurisdiction (Sec.  1201.3) must complete the structured interview at 
that site (https://e-appeal.mspb.gov). For all other pleadings, the e-
filer has the option of uploading an electronic file or entering the 
text of the pleading online. Regardless of the means of filing a 
particular pleading, the e-filer will be allowed to submit supporting 
documentation such as attachments, in either electronic or paper form, 
as described in paragraphs (g)(2), (g)(3), and (h) of this section.
    (2) Electronic formats allowed. The MSPB will accept numerous 
electronic formats, including word-processing and spreadsheet formats, 
Portable Document Format (PDF), and image files (files created by 
scanning). A list of formats allowed can be found at e-Appeal Online. 
All electronic documents must be formatted so that they will print on 
standard 8\1/2\ inch by 11 inch paper.
    (3) Requirements for pleadings with 3 or more electronic 
attachments. An e-filer who uploads 3 or more supporting documents, in 
addition to the document that constitutes the primary pleading, must 
identify each attachment, either by filling out the table for such 
attachments at e-Appeal Online, or by uploading the supporting 
documents in the form of one or more PDF files in which each attachment 
is bookmarked. Each attachment must be designated with a brief 
descriptive label, which will include exhibit numbers or letters where 
appropriate or required, e.g., ``Exh. 4b, Decision Notice.''
    (h) Hybrid pleadings that include both electronic and paper 
documents. An e-filer 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. All 
components of a hybrid pleading are subject to applicable time limits. 
If one or more parts of a hybrid pleading are untimely filed, the judge 
or the Clerk may reject the untimely part or parts while accepting 
timely filed parts of the same pleading.
    (i) Repository at e-Appeal Online. All notices, orders, decisions, 
and other documents issued by the MSPB, as well as all pleadings filed 
via e-Appeal Online, will be made available to parties and their 
representatives for viewing and downloading at the Repository at e-
Appeal Online. In addition, most pleadings filed at the petition for 
review stage of adjudication, and some

[[Page 10130]]

pleadings filed at the regional office level, will be available at the 
Repository. Also available at the Repository will be an electronic 
``docket sheet'' listing all documents issued by the MSPB to the 
parties, as well as all pleadings filed by the parties, including those 
pleadings that are not available for viewing and downloading in 
electronic form. Access to appeal documents at the Repository will be 
limited to the parties and representatives of the appeals in which they 
were filed.
    (j) Service of electronic pleadings and MSPB documents.
    (1) When MSPB documents are issued, e-mail messages will be sent to 
e-filers that notify them of the issuance and that contain links to the 
Repository where the documents can be viewed and downloaded. Paper 
copies of these documents will not ordinarily be served on e-filers. 
Pleadings submitted via e-Appeal Online will be available to parties 
and representatives at the e-Appeal Online Repository, and the MSPB 
will send e-mail messages to other e-filers notifying them of each 
pleading, with a link to the Repository. When using e-Appeal Online to 
file a pleading, e-filers will be notified of all documents that must 
be served by non-electronic means, and they must certify that they will 
serve all such documents no later than the first business day after the 
electronic submission.
    (2) Delivery of e-mail can encounter a number of failure points. If 
the MSPB is advised of non-delivery, it will attempt to redeliver and, 
if that is unsuccessful, will deliver by postal mail or other means. E-
filers are responsible for ensuring that e-mail from @mspb.gov is not 
blocked by filters.
    (3) E-filers are responsible for monitoring case activity at the 
Repository at e-Appeal Online to ensure that they have received all 
case-related documents.
    (k) Documents requiring a signature. Electronic documents filed by 
a party who has registered as an e-filer pursuant to this section shall 
be deemed to be signed for purposes of any regulation in part 1201, 
1203, 1208, or 1209 of this chapter that requires a signature.
    (l) Affidavits and Declarations made under penalty of perjury. 
Registered e-filers may submit electronic pleadings in the form of 
declarations made under penalty of perjury under 28 U.S.C. 1746, as 
described in Appendix IV to this part. If the declarant is someone 
other than the e-filer, a physically signed affidavit or declaration 
should be uploaded as an image file, or submitted separately as a non-
electronic document under paragraph (h) of this section.
    (m) Date electronic documents are filed and served.
    (1) As provided in Sec.  1201.4(l) of this Part, the date of filing 
for pleadings filed via e-Appeal Online is the date of electronic 
submission. All pleadings filed via e-Appeal Online are time stamped 
with Eastern Time, but the timeliness of a pleading is assessed based 
on the time zone where the pleading is being filed. For example, a 
pleading filed at 11 p.m. Pacific Time on August 20 will be stamped by 
e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. 
However, if the pleading was required to be filed with the Western 
Regional Office on August 20, it would be considered timely, as it was 
submitted prior to midnight Pacific Time on August 20.
    (2) MSPB documents served electronically on registered e-filers are 
deemed received on the date of electronic submission.
    (n) Authority of a judge or the Clerk to regulate e-filing.
    (1) In the event that the MSPB or any party encounters difficulties 
filing, serving, or receiving electronic documents, the judge or the 
Clerk of the Board may order one or more parties to cease filing 
pleadings by e-filing, cease serving documents in electronic form, or 
take both these actions. In such instances, filing and service shall be 
undertaken in accordance with Sec.  1201.26. The authority to order the 
cessation of the use of electronic filing may be for a particular 
submission, for a particular time frame, or for the duration of the 
pendency of a case.
    (2) 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 postal mail, by fax, or by 
commercial or personal delivery a signed, non-electronic copy of the 
document.
    (o) MSPB reserves the right to revert to traditional methods of 
service. The MSPB may serve documents via traditional means--postal 
mail, fax, personal or commercial delivery--at its discretion. Parties 
and their representatives are responsible for ensuring that the MSPB 
always has their current postal mailing addresses, even when they have 
registered as e-filers.

0
4. Revise Sec.  1201.134(g) to read as follows:


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

* * * * *
    (g) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec.  1201.14 are satisfied.

0
5. Revise Sec.  1201.137(f) to read as follows:


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

* * * * *
    (f) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec.  1201.14 are satisfied.

0
6. Revise Sec.  1201.143(f) to read as follows:


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

* * * * *
    (f) Electronic filing. All pleadings may be filed and served in 
electronic form at the MSPB e-Appeal site (https://e-appeal.mspb.gov/), 
provided the requirements of Sec.  1201.14 are satisfied.

William D. Spencer,
Clerk of the Board.
[FR Doc. E8-3515 Filed 2-25-08; 8:45 am]
BILLING CODE 7400-01-P