[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Rules and Regulations]
[Pages 63537-63538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26315]



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  Federal Register / Vol. 76, No. 198 / Thursday, October 13, 2011 / 
Rules and Regulations  

[[Page 63537]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Mandatory Electronic Filing for Agencies and Attorneys at 
Washington Regional Office and Denver Field Office

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule informs the public that the U.S. Merit Systems 
Protection Board (MSPB or Board) is launching a pilot program under 
which the Washington Regional Office (WRO) and Denver Field Office 
(DEFO) will require all pleadings filed by agencies and attorneys who 
represent appellants in MSPB proceedings to be electronically filed (e-
filed). This requirement will apply to all pleadings except those 
containing classified information or Sensitive Security Information 
(SSI) in all adjudicatory proceedings before the Board. Any agency or 
appellant's attorney who believes e-filing would create an undue burden 
may request an exemption from the administrative judge; however, 
requests will generally be considered only for pleadings that include 
scanned material, for example, not documents prepared and saved in a 
word processing program, and will be granted only when supported by a 
specific and detailed explanation, such as when the submission of a 
voluminous amount of scanned documents would create a hardship for a 
party.

DATES: This rule is effective January 11, 2012.

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; (202) 653-7200; fax: (202) 653-7130; or e-mail: 
[email protected].

FOR FURTHER INFORMATION CONTACT: William D. Spencer, 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: 

1. History of MSPB's E-Filing Initiative

    On February 26, 2008, MSPB issued final regulations at 5 CFR parts 
1201, 1203, 1208, and 1209 governing e-filing. 73 FR 10127. Under those 
regulations, virtually any type of pleading can be filed electronically 
via MSPB's electronic filing application--e-Appeal Online. This 
includes the initial original appeal in matters within the Board's 
original and appellate jurisdiction, as well as all subsequent 
pleadings by the parties in such appeals. In addition to the pleadings 
on the merits of these appeals, e-Appeal Online can be used in 
subsidiary or addendum proceedings, including petitions for 
enforcement, motions for attorney fee awards, motions for compensatory 
or consequential damages, designations of representation, and notices 
of changes to contact information. 73 FR 10129; 5 CFR 1201.14(b). These 
regulations require parties and representatives who elect to e-file to 
follow the instructions for e-filing at MSPB's e-Appeal Online (https://e-appeal.mspb.gov). 5 CFR 1201.14(d).

2. Benefits of MSPB's E-Filing Initiative

    E-Appeal Online is more than an application for sending and 
receiving pleadings in electronic form; it comprises an electronic case 
file of all relevant electronic documents relating to a particular 
appeal. This includes an online Repository of all documents issued by 
MSPB in a particular case, such as notices, orders, decisions, and 
other documents issued by MSPB to the parties, as well as pleadings 
filed via e-Appeal Online. Also available in the online Repository are 
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. The Repository also includes an electronic ``docket sheet'' that 
lists all documents issued by 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 is limited to the parties and 
representatives of the appeals in which they were filed.
    Generally, pleadings added to the Repository are full-text 
searchable, including printed materials that have been converted to 
electronic format by scanning. This is accomplished using optical 
character recognition software that converts image-only electronic 
formats into an image-plus-text electronic format. Making case-related 
documents full-text searchable makes it easier for both the parties to 
MSPB proceedings and MSPB itself to search case files for pertinent 
materials.
    Although e-Appeal Online has been valuable to both MSPB and its 
customers, some benefits can only be realized when the entire case file 
is available in electronic form. If only one party is e-filing, only 
part of the case file will generally be available to MSPB and to the 
parties in an appeal in electronic form. In these circumstances, both 
MSPB employees and the parties need access to the paper case file in 
order to have access to the entire record. If the entire case file were 
available in electronic form, neither MSPB employees nor the parties 
and their representatives would need to have access to the paper case 
file in order to do their jobs. If e-filing were mandatory for agencies 
and attorneys who represent appellants, scanning the remaining paper 
pleadings of pro se appellants who have not taken advantage of e-filing 
will become manageable, and the Board and the parties would be able to 
realize the benefits of fully electronic case files.

3. Mandatory E-Filing for WRO and DEFO

    In the February 26, 2008 Federal Register notice, MSPB announced 
that it was giving serious consideration to mandating e-filing for 
agencies and attorneys who represent appellants in MSPB proceedings, 
and MSPB welcomed comments on this issue. 73 FR 10127-28.
    In response to the February 26, 2008, announcement in the Federal 
Register about the possibility of mandatory e-filing for agencies and 
attorneys, MSPB received only one comment. The commenter acknowledged 
the advantages of such a rule, but identified two disadvantages: (1) 
Agencies would

[[Page 63538]]

have to upgrade their equipment to accommodate the scanning of lengthy 
documents, and (2) when pro se appellants do not elect to e-file, 
agencies would have the additional burden of preparing and submitting 
documents in two formats, i.e., electronic and paper. E-Mail of March 
25, 2008. We have considered the comment.
    As to the equipment required, we recognize that some federal agency 
offices may not be well-equipped to produce and upload agency files as 
electronic documents. However, in light of the ever-increasing 
affordability of high-quality scanners and related software, we believe 
the number of offices that would be adversely affected by such a rule 
would be relatively small. We note also that e-filing is already 
mandatory in many state and federal courts. Nevertheless, this Interim 
Rule takes the commenter's concern into account and provides for 
exemptions in appropriate circumstances.
    As to the commenter's concerns about the extra work that would be 
entailed when appellants do not e-file, we believe those concerns are 
overstated. In that event, it is true that a paper copy of the agency 
file would have to be printed and mailed. It is not the case, however, 
that all of the extra work traditionally involved in assembling an 
agency file would still need to be done. A party that e-files a 
pleading that contains three or more attachments must describe and 
bookmark the attachments so that each attachment is listed in a table 
of contents and bookmarked in the electronic version. 5 CFR 
1201.14(g)(3). In the assembled pleading, the table of contents will 
list each attachment and the page number on which it starts. This 
pleading can be printed and mailed as is; there would be no need for 
the agency to place physical tabs on the attachments, or to manually 
create a separate table of contents. Thus, even when the appellant is 
not an e-filer, we do not see a significant increase in the time 
required to assemble and serve the agency file. When all parties are e-
filing, we believe that there will be a net savings of time associated 
with creating and serving the agency file electronically.
    Although the MSPB announced that it was considering making e-filing 
mandatory for all agencies and attorneys appearing before the MSPB, 
this interim rule affects only parties appearing before the WRO and the 
DEFO. Except for pleadings filed with WRO and DEFO, whether to 
participate in Board proceedings as an e-filer will continue to be 
voluntary. We note, however, that should the pilot program in WRO and 
DEFO prove to be successful, the Board would consider proposing a final 
agency-wide rule that would make e-filing mandatory for agencies and 
attorneys who represent appellants.
    To provide time for agencies to comply with this rule, we are 
setting the effective date of this new rule 90 days in the future, on 
January 11, 2012. This new rule will apply only to appeals filed on or 
after January 11, 2012.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Electronic filing.
    Accordingly, MSPB amends 5 CFR part 1201 as set forth below:

PART 1201--[AMENDED]

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

    Authority:  5 U.S.C. 1204 and 7701.

0
2. In Sec.  1201.14, add paragraph (p) to read as follows:


Sec.  1201.14  Electronic filing procedures.

* * * * *
    (p)(1) Except as provided in paragraphs (p)(2) and (3) of this 
section, all pleadings (including the initial appeal) except those 
containing classified information or Sensitive Security Information 
filed with the Washington Regional Office (WRO) and the Denver Field 
Office (DEFO) by agencies or attorneys must be e-filed. Agencies and 
attorneys in proceedings in the WRO and the DEFO must register as e-
filers pursuant to paragraph (e) of this section.
    (2) Agencies or attorneys who believe that e-filing would create an 
undue burden on their operations may request an exemption from the 
administrative judge for a specific appeal and/or pleading. Such a 
request shall include a specific and detailed explanation why e-filing 
would create an undue burden.
    (3) Except in unusual circumstances, exemptions granted under this 
section shall apply only to pleadings that include scanned material. 
All other pleadings except those containing classified information or 
Sensitive Security Information must be e-filed. The administrative 
judge may periodically revisit the need for an exemption granted under 
this subsection, and revoke the exemption as appropriate.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2011-26315 Filed 10-12-11; 8:45 am]
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