[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Rules and Regulations]
[Pages 60706-60707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25174]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules of practice and procedure to clarify procedures 
regarding the issuance and citation of nonprecedential Orders.

DATES: This Final Rule is effective October 1, 2011.

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: On October 5, 2010, the MSPB published an 
interim rule amending 5 CFR 1201.117. (75 FR 61321) The interim rule 
amended 5 CFR 1201.117(c) to make clear that the Board may, in its 
discretion, include discussion of issues raised in an appeal in a 
nonprecedential Order and amended 5 CFR 1201.117(b) to make clear that 
the Board may issue a final decision and, when appropriate, order a 
date for compliance with that decision.
    The Board received comments concerning this interim rule from two 
individuals. The first commenter expressed unease with 5 CFR 
1201.117(a)(5) and feared that this provision could be used to 
``scuttle'' cases and asked that this provision be amended to state 
clearly that it would not be used to the detriment of employees and 
applicants for Federal positions. The interim rule did not amend 5 CFR 
1201.117(a)(5). The Board has considered this comment and declines to 
amend this section.
    A second commenter offered several observations. First, this 
commenter noted that there was no need for a separate class of 
nonprecedential Orders because the Board has in the past used footnotes 
to provide additional information in cases summarily denying petitions 
for review. The Board has considered this comment, but has determined 
that the goal of giving parties greater insight into the Board's 
reasoning in a particular case, without requiring the Board to issue a 
precedential decision, is best served by the issuance of 
nonprecedential Orders. This commenter also expressed the concern that 
if the Board's purpose was to avoid publication of nonprecedential 
Orders on the Board's Web site or by other reporting services, this 
goal would likely be thwarted by commercial reporting services with the 
result that two classifications of Board decisions would be published 
and ultimately cited by parties. The Board's goal was not to avoid 
publication of nonprecedential Orders. The Board will post 
nonprecedential Orders on its Web site. In addition, this final rule 
contains specific guidelines for the citation of nonprecedential 
Orders. Finally, this commenter opined that issuance and publication of 
nonprecedential Orders would complicate legal research, lead to 
confusion, and not serve the goal of open government. As noted above, 
the Board has included specific guidelines for the citation of 
nonprecedential Orders. Further, the Board is convinced that the 
issuance and publication of nonprecedential Orders will serve the goal 
of openness in the Board's decision-making by giving parties greater 
insight into the Board's reasoning.
    The amendments in this final rule affect only 5 CFR 1201.117(c) and 
include updated procedures for the issuance of Opinions and Orders and

[[Page 60707]]

nonprecedential Orders, explain that parties may cite nonprecedential 
Orders, and also explain that the Board is not bound by nonprecedential 
Orders in its future decisions.
    The Board believes that issuing and publishing nonprecedential 
Orders that include a substantive review of issues presented in an 
appeal will serve the useful purpose of informing parties of the 
Board's reasoning in a particular appeal. In addition, the new 
regulation should ensure the maximum degree of transparency in the 
Board's decision-making to the greatest extent possible.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Government employees.

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

PART 1201--[AMENDED]

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

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


0
2. Revise Sec.  1201.117 to read as follows:


Sec.  1201.117  Board decisions; procedures for review or reopening.

    (a) In any case that is reopened or reviewed, the Board may:
    (1) Issue a single decision that denies or grants a petition for 
review, reopens an appeal, and decides the case;
    (2) Hear oral arguments;
    (3) Require that briefs be filed;
    (4) Remand the appeal so that the judge may take further testimony 
or evidence or make further findings or conclusions; or
    (5) Take any other action necessary for final disposition of the 
case.
    (b) The Board may affirm, reverse, modify, or vacate the initial 
decision of the judge, in whole or in part. The Board may issue a final 
decision and, when appropriate, order a date for compliance with that 
decision.
    (c) The Board may issue a decision in the form of a precedential 
Opinion and Order or a nonprecedential Order.
    (1) Opinion and Order. An Opinion and Order is a precedential 
decision of the Board and may be appropriately cited or referred to by 
any party.
    (2) Nonprecedential Orders. A nonprecedential Order is one that the 
Board has determined does not add significantly to the body of MSPB 
case law. The Board may, in its discretion, include in nonprecedential 
Orders a discussion of the issue(s) to assist the parties in 
understanding the reason(s) for the Board's disposition in a particular 
appeal. Nonprecedential Orders are not binding on the Board or its 
administrative judges in any future appeals except when it is 
determined they have a preclusive effect on parties under the doctrines 
of res judicata (claim preclusion), collateral estoppel (issue 
preclusion), judicial estoppel, or law of the case. Parties may cite 
nonprecedential Orders, but such orders have no precedential value; the 
Board and its administrative judges are not required to follow or 
distinguish them in any future decisions. In contrast, a precedential 
decision issued as an Opinion and Order has been identified by the 
Board as significantly contributing to the Board's case law.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-25174 Filed 9-29-11; 8:45 am]
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