[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Rules and Regulations]
[Pages 18149-18151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6934]



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  Federal Register / Vol. 73, No. 65 / Thursday, April 3, 2008 / Rules 
and Regulations  

[[Page 18149]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Streamlining Regulations

AGENCY: Merit Systems Protection Board.

ACTION: Revised interim rule with request for comment.

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

SUMMARY: The Merit Systems Protection Board (``MSPB'') is issuing a 
revised interim rule amending several provisions of its practices and 
procedures regulations to improve the agency's service to its customers 
by facilitating the expeditious adjudication of appeals. This revised 
interim rule is intended to streamline MSPB case adjudication. It 
revises and adds to the regulatory changes undertaken in an interim 
rule issued by the MSPB on September 18, 2003. (68 FR 54651) This 
revised interim rule reflects the comments received from MSPB 
adjudicators and practitioners based on their experiences with the 
implementation of the current interim rule. The MSPB is soliciting 
comments concerning this revised interim rule, as well as additional 
comments concerning the September 18, 2003 interim rule. The MSPB will 
issue a final rule following the end of the comment period for this 
revised interim rule. All comments received during the comment period 
will be taken into consideration in drafting the final rule.

DATES: Effective date: April 3, 2008. Submit written comments on or 
before June 2, 2008.

ADDRESSES: Send comments to William D. Spencer, Clerk of the Board, 
Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 
20419; (202) 653-7200, phone; (202) 653-7130, fax; 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, phone; (202) 653-7130, fax; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On September 18, 2003, the MSPB issued an interim rule amending 
several provisions of its practices and procedures regulations to 
improve the agency's service to its customers by facilitating the 
expeditious adjudication of appeals. These changes in the MSPB's rules 
of practice and procedure were, in part, a response to the directives 
contained in the President's Management Agenda (2002). The President's 
management reform initiative directs agencies to ``reshape their 
organizations to meet a standard of excellence in attaining the 
outcomes important to the nation.'' Among other actions, agencies are 
directed to reduce the time they take to make decisions. In addition, 
appellants and agencies had also expressed concern about the amount of 
time it took to adjudicate or otherwise process a case through the 
MSPB. As a result, the MSPB reviewed its practice and procedure 
regulations and determined that aspects of the regulations could be 
modified to improve its efficiency and effectiveness while maintaining 
the rights of the parties to a fair and impartial adjudication of 
appeals before the MSPB.

II. Changes Contained in the September 18, 2003 Interim Rule

    The September 18, 2003 interim rule amended 5 CFR 1201.28 to allow 
the judge to grant a joint or unilateral request for suspension of a 
case for only one 30-day period rather than two 30-day periods. 
Moreover, the amended regulation provided that such requests would only 
be granted for good cause shown at the discretion of the judge, rather 
than automatically. Finally, the amendment specified a 30-day limit on 
the amount of time the judge could grant for a unilateral request.
    The September 18, 2003 interim rule also added two new subsections 
to the MSPB's regulations governing discovery procedures. These 
subsections, 5 CFR 1201.72(d) and 1201.73(e), permitted the 
administrative judge to impose limits on the frequency or extent of the 
use of discovery methods and the number of discovery requests. The MSPB 
noted at that time that it had decided to follow the guidance of the 
Federal Rules of Civil Procedure (Fed. R. Civ. P.) in adopting these 
changes to its discovery procedures. The September 18, 2003 interim 
rule also amended 1201.73(d)(2) to reduce the number of days for filing 
subsequent discovery requests from 10 days to 7 days.

III. Summary of Changes in This Revised Interim Rule

    This revised interim rule makes several changes to the MSPB's 
regulations as follows:
    5 CFR 1201.28(g) is added to provide that the date on which a case 
returns to the adjudication process following a suspension is the 31st 
day after the suspension went into effect, but that if that date falls 
on a day when the MSPB is not open for business, such as a weekend or 
Federal holiday, then the first business day after that date is 
substituted. The MSPB's regulations were previously silent on this 
point and it is anticipated that this amendment will serve its and the 
parties' interests by assuring that deadlines restart and parties are 
held responsible for meeting processing requirements only on days that 
the MSPB is open to conduct official business.
    5 CFR 1201.72(c) is clarified by adding the words ``to parties'' 
after ``interrogatories'' in response to a comment received from a 
practitioner suggesting that there may be some confusion about whether 
interrogatories may be served on nonparties.
    5 CFR 1201.72(d) is clarified by moving the words ``the discovery 
sought is'' from the introduction to the beginning of paragraph (1) of 
that section.
    5 CFR 1201.73 is amended by adding a new section (a) concerning 
initial disclosures required of the parties. This new provision, which 
is similar to Fed. R. Civ. P. Rule 26, requires the parties to make 
certain specific initial disclosures to each other within 10 days of 
the date of the Acknowledgment Order, so as to jump start the discovery 
process.
    5 CFR 1201.73(e)(1) and 74(a) are amended to add an express 
requirement that the parties attempt to resolve a discovery dispute 
before filing a motion to compel with the MSPB. Parties often file a 
motion to compel discovery when

[[Page 18150]]

interrogatories are only one day late or there is a minor disagreement 
over the scope of discovery, before they make any reasonable effort to 
discuss the issue with the opposing party. At a minimum, the MSPB 
believes that this amendment will cause the parties to narrow the 
discovery issues in dispute, saving time and effort.

IV. Request for Additional Comment

    The MSPB received 8 comments from appellants' representatives and 
agency representatives in response to the September 18, 2003 interim 
rule. The MSPB is considering these comments and will respond to them 
when a final rule is issued. However, as agency and appellant 
representatives have now had a significant period of time operating 
under the amendments effected by the September 18, 2003 interim rule, 
the MSPB is interested in receiving additional comments based upon such 
actual experience prior to issuing a final rule. The MSPB also invites 
comments concerning other changes to its regulations discussed herein 
that could facilitate the expeditious adjudication of appeals without 
adversely affecting the rights of the parties.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

0
Accordingly, the MSPB amends 5 CFR Part 1201 as follows:

PART 1201--[AMENDED]

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

    Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.


0
2. Add Sec.  1201.28(g) as follows:


Sec.  1201.28  Case suspension procedures.

* * * * *
    (g) Termination after 30 days. If the final day of the 30-day 
suspension period falls on a day on which the MSPB is closed for 
business, adjudication shall resume as of the first business day 
following the expiration of the 30-day period.

0
3. Revise Sec.  1201.72 by revising paragraphs (c) and (d) to read as 
follows:


Sec.  1201.72  Explanation and scope of discovery.

* * * * *
    (c) Methods. Parties may use one or more of the methods provided 
under the Federal Rules of Civil Procedure. These methods include 
written interrogatories to parties, depositions, requests for 
production of documents or things for inspection or copying, and 
requests for admission.
    (d) Limitations. The judge may limit the frequency or extent of use 
of the discovery methods permitted by these regulations. Such 
limitations may be imposed if the judge finds that:
    (1) The discovery sought is cumulative or duplicative, or is 
obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (2) The party seeking discovery has had sufficient opportunity by 
discovery in the action to obtain the information sought; or
    (3) The burden or expense of the proposed discovery outweighs its 
likely b

0
5. Revise Sec.  1201.73 to read as follows:


Sec.  1201.73  Initial disclosures and discovery procedures.

    (a) Initial disclosures. Except to the extent otherwise directed by 
order, each party must, without awaiting a discovery request and within 
10 days following the date of the MSPB's acknowledgment order, provide 
the following information to the other party:
    (1) The agency must provide:
    (i) A copy of, or a description by category or location of all 
documents in the possession, custody, or control of the agency that the 
agency may use in support of its claims or defenses, and
    (ii) The name and, if known, the address, telephone number, and e-
mail address of each individual likely to have discoverable information 
that the agency may use in support of its claims or defenses, 
identifying the subjects of such information.
    (2) The appellant must provide:
    (i) A copy of, or a description by category or location of all 
documents in the possession, custody, or control of the appellant that 
the appellant may use in support of his or her claims or defenses, and
    (ii) The name and, if known, the address, telephone number, and e-
mail address of each individual likely to have discoverable information 
that the appellant may use in support of his or her claims or defenses, 
identifying the subjects of such information.
    (3) Each party must make its initial disclosure based upon the 
information then reasonably available to the party. A party is not 
excused from making its disclosures because it has not fully completed 
its investigation of its case, because it challenges the sufficiency of 
the other party's disclosures, or because the other party has not made 
its disclosures.
    (b) Discovery from a party. A party seeking discovery from another 
party must start the process by serving a request for discovery on the 
representative of the other party or the party if there is no 
representative. The request for discovery must state the time limit for 
responding, as prescribed in Sec.  1201.73(f), and must specify the 
time and place of the taking of the deposition, if applicable. When a 
party directs a request for discovery to an officer or employee of a 
Federal agency that is a party, the agency must make the officer or 
employee available on official time to respond to the request, and must 
assist the officer or employee as necessary in providing relevant 
information that is available to the agency.
    (c) Discovery from a nonparty, including a nonparty Federal agency. 
Parties should try to obtain voluntary discovery from nonparties 
whenever possible. A party seeking discovery from a nonparty Federal 
agency or employee must start the process by serving a request for 
discovery on the nonparty Federal agency or employee. A party may begin 
discovery from other nonparties by serving a request for discovery on 
the nonparty directly. If the party seeking the information does not 
make that request, or if it does so but fails to obtain voluntary 
cooperation, it may obtain discovery from a nonparty by filing a 
written motion with the judge, showing the relevance, scope, and 
materiality of the particular information sought. If the party seeks to 
take a deposition, it should state in the motion the date, time, and 
place of the proposed deposition. An authorized official of the MSPB 
will issue a ruling on the motion, and will serve the ruling on the 
moving party. That official also will provide that party with a 
subpoena, if approved, that is directed to the individual or entity 
from which discovery is sought. The subpoena will specify the manner in 
which the party may seek compliance with it, and it will specify the 
time limit for seeking compliance. The party seeking the information is 
responsible for serving any MSPB-approved discovery request and 
subpoena on the individual or entity, or for arranging for its service.
    (d) Responses to discovery requests. A party, or a Federal agency 
that is not a party, must answer a discovery request within the time 
provided under paragraph (f)(2) of this section, either by furnishing 
to the requesting party the information or testimony requested or 
agreeing to make deponents available to testify within a reasonable 
time, or by stating an objection to the particular request and the 
reasons for the objection. Parties and non-parties may

[[Page 18151]]

respond to discovery requests by electronic mail if authorized by the 
requesting party.
    (e) Motions to compel discovery. (1) If a party fails or refuses to 
respond in full to a discovery request, or if a nonparty fails or 
refuses to respond in full to a MSPB-approved discovery order, the 
requesting party may file a motion to compel discovery. The requesting 
party must file the motion with the judge, and must serve a copy of the 
motion on the other party and on any nonparty entity or person from 
whom the discovery was sought. Before filing any motion to compel 
discovery, the moving party shall discuss the anticipated motion with 
the opposing party either in person or by telephone and the parties 
shall make a good faith effort to resolve the discovery dispute and 
narrow the areas of disagreement. The motion shall include:
    (i) A copy of the original request and a statement showing that the 
information sought is relevant and material; and
    (ii) A copy of the response to the request (including the 
objections to discovery) or, where appropriate, a statement that no 
response has been received, along with an affidavit or sworn statement 
under 28 U.S.C. 1746 supporting the statement (See appendix IV to part 
1201.); and
    (iii) A statement that the parties have discussed the anticipated 
motion and have made a good faith effort to resolve the discovery 
dispute and narrow the areas of disagreement.
    (2) The other party and any other entity or person from whom 
discovery was sought may respond to the motion to compel discovery 
within the time limits stated in paragraph (f)(4) of this section.
    (f) Time limits. (1) Parties who wish to make discovery requests or 
motions must serve their initial requests or motions within 25 days 
after the date on which the judge issues an order to the respondent 
agency to produce the agency file and response.
    (2) A party or nonparty must file a response to a discovery request 
promptly, but not later than 20 days after the date of service of the 
request or order of the judge. Any discovery requests following the 
initial request must be served within 10 days of the date of service of 
the prior response, unless the parties are otherwise directed. 
Deposition witnesses must give their testimony at the time and place 
stated in the request for deposition or in the subpoena, unless the 
parties agree on another time or place.
    (3) Any motion to depose a nonparty (along with a request for a 
subpoena) must be submitted to the judge within the time limits stated 
in paragraph (f)(1) of this section or as the judge otherwise directs.
    (4) Any motion for an order to compel discovery must be filed with 
the judge within 10 days of the date of service of objections or, if no 
response is received, within 10 days after the time limit for response 
has expired. Any pleading in opposition to a motion to compel discovery 
must be filed with the judge within 10 days of the date of service of 
the motion.
    (5) Discovery must be completed within the time the judge 
designates.
    (g) Limits on the number of discovery requests. (1) Absent prior 
approval by the judge, interrogatories served by parties upon another 
party or a nonparty may not exceed 25 in number, including all discrete 
subparts.
    (2) Absent prior approval by the judge or agreement by the parties, 
each party may not take more than 10 depositions.
    (3) Requests to exceed the limitations set forth in paragraphs 
(g)(1) and (g)(2) of this section may be granted at the discretion of 
the judge. In considering such requests, the judge shall consider the 
factors identified in Sec.  1201.72(d) of this part.

0
6. Revise Sec.  1201.74(a) to read as follows:


Sec.  1201.74  Orders for discovery

    (a) Motion for an order compelling discovery. Motions for orders 
compelling discovery and motions for the appearance of nonparties must 
be filed with the judge in accordance with Sec.  1201.73(e)(1) and 
(f)(4). An administrative judge may deny a motion to compel discovery 
if a party fails to comply with the requirements of 5 CFR Sec.  
1201.73(e)(1) and (f)(4).
* * * * *

William D. Spencer,
Clerk of the Board.
 [FR Doc. E8-6934 Filed 4-2-08; 8:45 am]
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