[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Rules and Regulations]
[Pages 62350-62375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24130]



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Vol. 77

Friday,

No. 198

October 12, 2012

Part III





Merit Systems Protection Board





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5 CFR Parts 1200, 1201, 1203, et al.





Practices and Procedures; Final Rule

  Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / 
Rules and Regulations  

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MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1200, 1201, 1203, 1208, and 1209


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), 
following an internal review of MSPB regulations, publication of a 
proposed rule, and consideration of comments received in response to 
the proposed rule, hereby amends its rules of practice and procedure in 
order to improve and update the MSPB's adjudicatory processes.

DATES: Effective November 13, 2012.

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 email: [email protected].

SUPPLEMENTARY INFORMATION: On June 7, 2012, the Merit Systems 
Protection Board (MSPB or Board) proposed numerous amendments to its 
regulations. 77 FR 33663. In response to publication of this proposed 
rule, the MSPB received 105 pages of comments from 25 commenters. The 
comments received by the MSPB are available for review by the public at 
www.mspb.gov/regulatoryreview/index.htm.

Comments and Summary of Changes to the Proposed Rule

    Set forth below is a short summary of the changes proposed by the 
MSPB, a discussion of the comments addressing the proposed rule, and a 
summary of the changes the MSPB is making to the proposed rule. Readers 
desiring a more detailed summary of the amendments proposed by the MSPB 
should consult the proposed rule at 77 FR 33663.
    This Final Rule will become effective 30 days after publication in 
the Federal Register. The MSPB is aware that changes to its 
adjudicatory procedures may pose special problems in cases that are 
pending on the date this Final Rule takes effect. In any such case, 
judges have authority under 1201.12 to waive a regulation for good 
cause, except where a statute requires application of the regulation.

Section 1200.4 Petition for Rulemaking

    The MSPB proposed adding this new regulation to set forth 
procedures for filing petitions for rulemaking under 5 U.S.C. 553(e). 
Numerous commenters objected to this proposed regulation on the grounds 
that the MSPB should always employ notice and comment rulemaking due to 
its unique mission as an adjudicative body and the regulation could be 
read as authorizing the MSPB to publish a direct final rule not 
authorized under the Administrative Procedure Act (APA). However, the 
APA does not require notice and comment in all instances of agency 
rulemaking. 5 U.S.C. 553(b). While the MSPB does have a unique mission, 
publication of a direct final rule remains an important tool to quickly 
implement minor technical amendments. However, in an effort to address 
the concerns raised by these commenters, the MSPB has added a 
requirement to the regulation that final rules will be issued 
``consistent with the Administrative Procedure Act.''
    A commenter suggested that the MSPB, either by regulation or 
practice, should post petitions for rulemaking and responses thereto on 
the MSPB's Web site. The MSPB agrees that this proposal has merit and 
will undertake in the future to post such information on its Web site. 
A commenter suggested that the regulation include advice concerning a 
petitioner's right to judicial review. The MSPB has chosen not to amend 
the regulation as requested. Finally, a commenter suggested that the 
MSPB include a procedure for seeking reconsideration of a denial of a 
petition for rulemaking. The regulation presently gives each petitioner 
a full opportunity to present his or her petition to the Board. No 
further procedures for reconsideration will be included in the final 
rule.

Section 1201.3 Appellate Jurisdiction

    The amendments proposed by the MSPB explained that this regulation 
is not a source of MSPB jurisdiction and that jurisdiction depends on 
the nature of the employment or position held by the employee as well 
as the nature of the action taken. The proposed regulation also revised 
the listing of appealable actions within the MSPB's appellate 
jurisdiction.
    A commenter suggested several editorial changes to paragraph (a) 
and, in response, the MSPB has amended this regulation. A commenter 
pointed out that the MSPB has jurisdiction over ``suitability 
actions,'' not ``suitability determinations.'' The MSPB has amended the 
proposed regulation to address this comment.
    A commenter recommended that the regulation should be amended to 
include more specific information concerning what constitutes a 
suitability determination and how a suitability determination is made. 
In response, the MSPB has included changes to paragraph (a)(9).
    A commenter suggested that the statement in paragraph (a)(3) of the 
proposed rule that appeals of probationary terminations ``are not 
generally available to employees in the excepted service'' is 
insufficient for pro se appellants. The commenter further suggested 
that the regulation should be revised to clearly identify when an 
excepted service employee has the right to appeal such an action by 
listing any exceptions to the general rule. In response, the MSPB notes 
that one such exception to the general rule exists for Veterans 
Readjustment Act appointments. While appointments under this authority 
are excepted service appointments, because they are positions that 
would otherwise be in the competitive service, many competitive service 
rules apply to them, including those at 5 CFR part 315, subpart H. See 
McCrary v. Department of the Army, 103 M.S.P.R. 266, ] 11 (2006); 5 CFR 
307.103-.104. The MSPB therefore believes the use of the term 
``generally'' is justified. In addition, given the possibility that the 
MSPB might overlook an exception that ought to be included in such a 
list or that the list could become outdated at some future point, the 
MSPB is satisfied that the use of the term ``generally'' is 
appropriate. Finally, MSPB administrative judges are required to 
identify jurisdictional elements to the parties after an appeal is 
filed and, therefore, there is no need to amend this regulation as 
requested.
    The MSPB has also made several minor changes in the proposed rule. 
First, in paragraph (a)(10), we changed the citation to authority for 
this grant of jurisdiction. There is no longer any Subpart E to 5 CFR 
Part 752. The correct sources of jurisdiction are 5 U.S.C. 7543(d) and 
5 CFR 752.605. Second, in paragraph (a)(11), we pluralized ``right'' in 
the first grant of jurisdiction and broke out the particular grants of 
jurisdiction into separate paragraphs (a)(11)(i) through (a)(11)(vii).

Section 1201.4 General Definitions

    The MSPB proposed revising subsection (a) to eliminate the phrase 
``attorney-examiner'' and revising subsection (j) due to a concern that 
the term ``date of service'' was unclear.
    In response to a concern expressed by a commenter that the term 
``grievance'' should be defined, the MSPB has added a new paragraph (o) 
defining a ``grievance'' as ``[a] complaint by an employee or labor 
organization under a negotiated grievance procedure covered

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by 5 U.S.C. 7121.'' While this definition was not included in this 
regulation in the proposed rule, the MSPB believes it is appropriate to 
include this new material here because the MSPB did propose to amend 
1201.153 to substitute the term ``under a negotiated grievance 
procedure'' for the word ``grievance.'' The new definition of 
``grievance'' is intended simply to recognize the need to clarify the 
meaning of the term ``grievance'' throughout the MSPB's regulations.
    A commenter objected to the current definition of ``date of 
service'' in paragraph (j) as circular and suggested that it should 
take the form of a narrative definition without reference to ``date of 
filing.'' The MSPB rejects this suggestion as the date of service and 
date of filing are intended to be identical.
    A commenter suggested that the MSPB delete ``calendar'' as a 
description of days in paragraph (j) because days is already a defined 
term in paragraph (h). The final rule adopts this suggestion.
    Several commenters suggested that language authorizing that 5 extra 
days will be provided when a pleading is filed by mail should be moved 
to 1201.23 or that a reference to 1201.23 should be added to the 
proposed language in paragraph (j). A commenter also suggested that the 
MSPB amend the language of paragraph (j). In response to these 
suggestions, the MSPB has amended the language of paragraph (j) and 
moved the language providing 5 extra days when a pleading is filed by 
mail to 1201.23.
    A commenter expressed a concern that the MSPB's definition of 
``date of service'' is flawed because it fails to recognize that 
irradiation of mail delays receipt of mail by Federal agencies. The 
MSPB is aware that when an appellant files via regular mail, and the 
agency representative is located in Washington, DC, the pleading will 
go to an irradiation center and it may take more than 5 days for the 
agency to receive it. While this is a valid concern, the MSPB does not 
think it justified a special provision in the regulations. If 
irradiation has caused a significant delay that adversely impacts an 
agency's opportunity to submit a responsive pleading, the agency can 
ask for additional time or seek to excuse a late response, and there is 
no reason to believe our judges will not deal with such matters 
appropriately.
    A commenter suggested that the MSPB amend the definition of 
``judge'' in paragraph (a) to add ``any member of the Merit Systems 
Protection Board'' to the listing of persons who can be a judge and 
further amend the regulation to make clear that only individuals 
``experienced in hearing appeals'' may hear an appeal of a removal 
action. We have revised the regulation to include Members of the Board 
in the definition of the word ``judge.'' The MSPB is cognizant of the 
requirement in 5 U.S.C. 7701(b)(1) that a removal case shall be heard 
by the Board, an employee experienced in hearing appeals, or an 
administrative law judge. The MSPB ensures that cases are assigned to 
experienced judges in accordance with the statutory requirement.

Section 1201.14 Electronic Filing Procedures

    The MSPB proposed adding new language to reflect current MSPB 
policy and procedures regarding Sensitive Security Information (SSI) 
and classified information. The MSPB proposed to revise paragraph (m) 
to make the regulation consistent with the intent expressed by the 
Board when it originally published this provision at 73 FR 10127, 10128 
(2008). Finally, additional language was added to provide that amici 
are not permitted to e-file.
    A commenter suggested that the MSPB should change the restriction 
on SSI so that it applies only when a document has been marked by the 
agency as containing SSI. The MSPB believes the current language 
concerning filing of SSI and classified information is more appropriate 
in so far as it contemplates additional scenarios in which a party 
other than the agency submits a pleading containing information that it 
knew or should have known contains SSI. A commenter objected to the 
MSPB's restrictions on filing pleadings containing SSI as overly broad. 
However, these restrictions are compelled by the fact that SSI and 
classified information require security beyond that available in the 
MSPB e-filing system. A commenter questioned the continued exclusion of 
class appeal-related filings and requests to appear as amici from the 
MSPB's e-appeal system. As the MSPB noted in the proposed rule, we 
considered the option of reconfiguring e-Appeal Online to address 
Privacy Act concerns and allow amici to file using e-Appeal Online but 
determined that the cost of such a systemic change outweighed the 
benefit of e-filing by amici. A commenter observed that the MSPB should 
adjust its e-filing system to account for regional time differences 
rather than address this issue in a regulation. While the e-filing 
system of the Federal judiciary may accommodate such difference, the 
MSPB remains concerned that such a change to its e-filing system risks 
compromising the reliability and integrity of its filing process.

Section 1201.21 Notice of Appeal Rights

    The MSPB proposed to change longstanding jurisprudence concerning 
allegations of reprisal for whistleblowing under 5 U.S.C. 2302(b)(8) 
where an employee has been subjected to an otherwise appealable action. 
Subsection (g)(3) of 5 U.S.C. 7121 provides that an individual who has 
been subjected to an otherwise appealable action and who alleges 
retaliation for whistleblowing must elect one of 3 actions: (A) an 
appeal to the Board under 5 U.S.C. 7701; (B) a negotiated grievance 
under 5 U.S.C. 7121(d); or (C) corrective action under subchapters II 
and III of 5 U.S.C. chapter 12, i.e., a complaint filed with OSC (5 
U.S.C. 1214), which can be followed by an Individual Right of Action 
appeal filed with the Board (5 U.S.C. 1221). Subsection (g)(4) provides 
that an election is deemed to have been made based on which of the 3 
actions the individual files first. The proposed regulation would 
require agencies to fully notify employees of their rights in these 
situations so that they can make an informed choice among the available 
3 options. Paragraph (e) was added to require notice in mixed cases.
    A commenter suggested that the MSPB should define what constitutes 
a grievance. In response to this comment, the MSPB has added a new 
definition in a new paragraph (o) in 1201.4.
    Several commenters suggested that the MSPB clarify its proposed 
regulation and/or provide ``model'' language for agencies to use with 
respect to the Board's requirements in paragraphs (d) and (e) relating 
to elections between different forums that employees are required to 
make with respect to claims of retaliation for protected whistleblowing 
disclosures or claims of unlawful discrimination. The Board does not 
believe that detailed model language is required, as the regulations at 
5 CFR 1209.2 and 29 CFR 1614.301 and .302 provide adequate guidance.
    A commenter pointed out that while the proposed regulation would 
require agencies to give notice of rights under 5 U.S.C. 7121(g), it 
failed to require notice of rights under 5 U.S.C. 7121(c)(1) and (d). 
The MSPB believes these concerns are already addressed in paragraphs 
(d) and (e) of the regulation. We revised paragraph (e) to add the 
phrase ``or to grieve allegations of unlawful discrimination'' and 
added

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references to 5 U.S.C. 7121(d) and 29 CFR 1614.301 to clarify the 
notice that must be provided regarding discrimination claims.
    A commenter urged the MSPB to make clear that an appellant may make 
separate elections of remedies for a proposed decision and a final 
decision. This issue is presently addressed in Example 4 in 1209.2.
    Commenters also were concerned that increasing the amount of 
information already included in notices was unreasonable and that the 
exact parameters of the notice required may not be clear at the time an 
action is taken against a probationary employee. The complexity of 
notices is a product of the complexity of the law governing Federal 
employees. With regard to notices given to probationary employees, when 
an agency takes an action against a probationary employee, it must 
inform the employee of the circumstances in which such terminations are 
appealable to the Board.
    The MSPB has made two other amendments to this regulation. We 
revised paragraph (e) because it only referred to elections between the 
MSPB and the EEOC under 29 CFR 1614.302. This paragraph now also 
addresses election of the negotiated grievance process for claims of 
prohibited discrimination. In response to other comments regarding this 
regulation, the MSPB also added a new paragraph (f) requiring agency 
decision notices to include the name or title and contact information 
for the agency official to whom the Board should send the 
Acknowledgment Order and copy of the appeal. This minor change will 
help ensure proper service of the MSPB's Acknowledgment Order, thereby 
expediting the processing of appeals.
    Readers also should review the discussion of comments under 5 CFR 
1209.2.

Section 1201.22 Filing an Appeal and Responses to Appeals

    The MSPB proposed to revise this regulation to include a new 
section stating the MSPB's general rule about constructive receipt and 
included several illustrative examples.
    A commenter objected to the use of the terms ``relative'' and ``of 
suitable age and discretion'' as overly vague. The MSPB does not use 
the word ``relative'' in this regulation. The use of the term ``persons 
of suitable age and discretion'' is taken from Rules 4 and 5 of the 
Federal Rules of Civil Procedure.
    A commenter asked the MSPB to modify the regulation to clarify 
that, in cases where the appellant and his or her representative 
receive a document on different dates, the date of the representative's 
receipt should control. The MSPB has elected not to make this change as 
the present rule is adequate and this proposal will introduce further 
complexity.
    A commenter objected to the use of examples because such examples 
might be read as determinative in circumstances where they might be 
misleading. The MSPB disagrees and views these examples as an effective 
means to explain the rule to pro se litigants. However, the MSPB will 
note in the examples that the cited circumstances in each example 
``may'' establish the contested issue.
    A commenter proposed that the MSPB require an agency to provide 
contact information for the agency official designated to receive 
notice of a change in an appellant's address. The MSPB has added a new 
paragraph (f) in 1201.21 that will require the agency to supply contact 
information for a responsible agency official in all decision notices.

Section 1201.23 Computation of Time

    The MSPB proposed to amend this regulation so that it will apply to 
all situations in which a deadline for action is set forth in the 
MSPB's regulations or by a judge's order, including discovery requests 
and responses between the parties.
    A commenter requested the MSPB to incorporate constructive receipt 
language from 1201.22 in this regulation. The MSPB will not implement 
this suggestion because 1201.23 concerns solely with how time is 
computed, not when receipt is effective. A commenter recommended a 
change in wording to shorten the description of the 5 extra days 
provided when a pleading is filed by mail. The commenter also 
recommended moving this language from 1201.4 to 1201.23. The MSPB 
agrees with these suggestions. The final rule contains a modified 
version of this commenter's suggested language. The MSPB deleted the 
word ``calendar'' as a description of days because it is already a 
defined term in paragraph (h) of 1201.4.

Section 1201.24 Content of an Appeal; Right to Hearing

    The MSPB proposed to change the scope of requested attachments to 
an initial appeal from ``any relevant documents'' to a request for the 
proposal notice, decision notice, and for the SF-50 if available. The 
MSPB also proposed to amend the definition of ``right to hearing'' in 
paragraph (d) to state that, ``in an appeal under 5 U.S.C. 7701, an 
appellant generally has a right to a hearing on the merits if the 
appeal has been timely filed and the Board has jurisdiction over the 
appeal.''
    A commenter objected to the limitations on the amount of material 
an appellant may submit with an appeal on the grounds that this change 
will increase the time it takes an agency to assess the case and 
provide an appropriate response. While the proposed amendment might 
limit the initial receipt of relevant material in some cases, in many 
others it will serve to curtail the submission of extraneous material, 
while ensuring that the MSPB receives information necessary to identify 
the nature of an appellant's claims.
    A commenter agreed that evidence on jurisdiction should be filed in 
response to Board orders but only if the Board would hold in abeyance 
the agency's narrative response to the appeal until the question of 
jurisdiction is resolved. The MSPB will not make any changes in 
response to this suggestion since this issue can be addressed on a 
case-by-case basis in acknowledgment of other orders issued by an 
administrative judge.
    A commenter objected to the proposed amendment on the grounds that 
it disadvantages appellants and precludes the appellant from submitting 
additional information that may be relevant. The MSPB disagrees with 
this comment because the amendment to this regulation concerns only the 
timing of submissions by an appellant and does not ultimately limit the 
scope of what an appellant may submit.
    A commenter suggested that in subparagraph (a)(7), the MSPB should 
require that appellants in Veterans Employment Opportunities Act (VEOA) 
and Individual Right of Action (IRA) cases submit relevant documents, 
as these documents are almost always exclusively in the appellant's 
possession. The MSPB believes that under current practice 
jurisdictional and show-cause orders adequately address requirements 
for appellants to show exhaustion in VEOA and IRA appeals.
    A commenter suggested that the MSPB should develop a mechanism for 
summary judgment and amend paragraph (d) to add information concerning 
an appellant's right to a hearing where summary judgment is granted. 
The Court of Appeals for the Federal Circuit has found that the MSPB 
lacks authority to order summary judgment. Crispin v. Department of 
Commerce, 732 F.2d 919, 924 (Fed. Cir. 1984). Therefore, we cannot make 
the suggested changes.

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    A commenter objected to the word ``generally'' in paragraph (d) 
since 5 U.S.C. 7701 includes a right to a hearing. The MSPB has removed 
the reference to 5 U.S.C. 7701 from this regulation because there are 
other appeals that lack a right to a hearing.

Section 1201.28 Case Suspension Procedures

    The MSPB proposed to overhaul its case suspension procedures to 
allow for more than a single 30-day suspension period, eliminate 
current restrictions on when a request must be filed, and remove 
separate paragraphs for unilateral requests and joint requests.
    A commenter suggested that the MSPB should grant its administrative 
judges the power to initially suspend case processing for up to 60 days 
instead of 30 in order to facilitate settlement. The MSPB believes that 
further expansion of the initial suspension period to 60 days is 
unwarranted because the proposed rule ultimately allows for suspension 
up to 60 days and allowing an initial suspension period of 60 days 
could negatively affect the time it takes to issue a decision in an 
initial appeal. However, in light of this comment, and another comment 
seeking to amend the regulation to suspend a case referred to the 
MSPB's Mediation Appeals Program (MAP), the MSPB has added a new 
paragraph (d) suspending the processing of an appeal that is accepted 
into MAP. This amendment reflects the MSPB's current practice.
    Several commenters suggested that suspension sought jointly by the 
parties should be granted automatically. The MSPB disagrees and 
believes that its judges need to retain control of case processing and 
will exercise suitable discretion in acting upon jointly filed 
suspension requests.
    A commenter asked the MSPB to consider amending the regulation to 
specify that adjudication of a motion to compel discovery does not 
require termination of the suspension period. The regulation states 
that a judge may terminate the suspension period when the parties 
request the judge's assistance and the judge's involvement is likely to 
be extensive but does not require termination. We believe that leaving 
such matters to the judge's discretion preserves the maximum 
flexibility for efficient and effective case processing.

Section 1201.29 Dismissal Without Prejudice

    The MSPB proposed adding this new regulation that codified existing 
case law on the subject of dismissals without prejudice.
    A commenter suggested that there was a typographical error in 
paragraph (a) and that the correct reference should be to 1201.22, not 
1201.12. The reference to 1201.12 was intentional because we wanted to 
allow for certain exceptions where the Board's reviewing court has held 
that the MSPB should not specify a date certain for refiling. The MSPB 
has modified paragraph (c) to specify the exception.
    A commenter suggested that the MSPB should rewrite paragraph (c) to 
provide that a waiver of a late refiling will be granted where an 
appellant establishes good cause for the untimely filing. The MSPB 
believes that requiring judges to liberally construe such requests is 
more appropriate. See 5 CFR 1201.29(d).
    A commenter suggested that the MSPB revise the regulation to 
require that a judge notify the parties and give them an opportunity to 
object before dismissing an appeal without prejudice. While the MSPB 
agrees with this suggestion in principle, we remain convinced that the 
current provision must be retained in order to allow a judge to dismiss 
a case without prejudice sua sponte in exceptional circumstances, such 
as when a hurricane closes a regional office for an extended period.
    A commenter recommended allowing the judge to set the refiling 
deadline based on an applicable triggering event instead of a date 
certain. Board case law does not allow judges to set the refiling date 
based solely on a subsequent triggering event, without also providing 
an alternate date certain.
    A commenter recommended requiring that judges set a refiling date 
within 6 months of the order dismissing the appeal and that the MSPB 
mandate that an appeal may not be dismissed without prejudice for more 
than two 6-month periods. Administrative judges are in the best 
position to set a refiling date. Based upon experience, the MSPB 
believes that a 12-month period may not be sufficient in all 
circumstances.
    A commenter expressed a preference for the automatic refiling of 
all cases dismissed without prejudice, especially retirement cases. 
Automatic refiling is not practical in all cases. In many cases, 
refiling is neither necessary nor desired because the matter has been 
fully resolved. For example, when an adverse action has been dismissed 
without prejudice so that the appellant can pursue an application for 
disability retirement, if the application is granted, no further action 
is required.
    A party suggested that the proposed regulation should be revised 
and reorganized. In response, we have made non-substantive revisions to 
the organization and language of the regulation.

Section 1201.31 Representatives

    The MSPB proposed to add the phrase ``or after 15 days after a 
party becomes aware of the conduct'' at the end of the third sentence 
in 5 CFR 1201.31(b) to acknowledge that a representative's conflict of 
interest may not be readily apparent to a party wishing to challenge 
the designation of a representative. The MSPB also proposed to move 
provisions governing exclusion and other sanctions for contumacious 
behavior by parties and representatives to 5 CFR 1201.43. Readers are 
advised to review comments under 1201.43.
    A commenter suggested that the MSPB should offer appellants the 
option to obtain an interlocutory appeal of a disqualification of his 
or her representative. One reason for the change from the current 
regulation is the practical consideration that allowing an automatic 
interlocutory appeal, as the current regulation does, would 
unnecessarily delay the processing of the appeal. Another is that the 
revised regulation does not prohibit a request for an interlocutory 
appeal in these circumstances; it simply does not provide for the 
automatic certification of an interlocutory appeal that does not meet 
the requirements of section 1201.92(b), including that the matter in 
question ``involves an important issue of law or policy about which 
there is substantial ground for difference of opinion.'' A party 
affected by the exclusion of a representative who believes that an 
interlocutory appeal would meet the requirements of 1201.92 remains 
free to seek one.

Section 1201.33 Federal Witnesses

    The MSPB proposed adding language to clarify that an agency's 
responsibility under this regulation includes producing witnesses at 
depositions as well as at hearings.
    A commenter observed that ``to appear at a deposition'' appears in 
the first sentence of (a), but not in the second sentence. This issue 
has been addressed in the final rule.
    Several commenters asked the MSPB to amend the regulation to 
clarify that the employing agency is responsible for pay and benefit 
costs resulting from the production of witnesses not employed by the 
responding agency. Other commenters objected that the proposed 
amendment appears to make party agencies responsible for ensuring the 
appearance of individuals employed by nonparty agencies. The proposed 
regulation is not intended to apportion

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these costs, which are for the involved agencies to resolve. However, 
we have revised the regulation to indicate that the Board and the 
parties will implement this provision, to the maximum extent possible, 
to avoid conflict with other regulations such as those issued pursuant 
to United States, ex rel. v. Touhy, 340 U.S. 462, 467 (1951) regarding 
the production of evidence from Federal employees in matters in 
litigation.
    A commenter recommended adding a provision requiring that the 
nonparty agency be served with any order requiring testimony of one of 
its employees. This commenter further suggested that the nonparty 
agency be given an opportunity to object or seek modification of such 
an order before it becomes effective. The Board is disinclined at this 
time to formalize such a process in this regulation in order to 
minimize the risk of collateral litigation. However, administrative 
judges currently have the authority to resolve any such objections.
    A party recommended that the MSPB eliminate the possibility of an 
adverse inference against a respondent agency with respect to non-
appearance of any employee not under its control. Under the MSPB's 
regulations, when a party fails to comply with an order, the judge may 
draw an inference in favor of the requesting party with regard to the 
information sought. The existing regulation does not provide for such a 
sanction against a party when a nonparty violates an MSPB order.
    A commenter suggested that the MSPB amend the regulation to 
``permit a witness, who is a nonparty Federal employee, to provide 
telephonic or video testimony at the hearing upon the agency's 
request.'' Such a request may be submitted to the judge, but the MSPB 
cannot tie the judge's hands with a blanket rule that gives the agency 
power to decide whether a witness will testify in-person or by video or 
telephone.
    A commenter suggested that the MSPB should amend this regulation to 
require agencies to pay for travel to depositions and that depositions 
should be taken in the local commuting area where the witness resides, 
if possible, or where there are videoconferencing capabilities. The 
parties to an MSPB appeal are free to make such arrangements to control 
costs and present the issue to the judge when the parties cannot agree 
on such cost control measures.
    A party suggested that the MSPB review and clarify its regulations 
regarding third party discovery. The MSPB is willing to consider any 
specific suggestions to improve its regulations and procedures in this 
area and invites any interested party to submit a petition for 
rulemaking addressing this area of MSPB practice and procedure.

Section 1201.34 Intervenors and Amicus Curiae

    The MSPB proposed to amend this regulation to address the fact that 
it receives motions to file amicus briefs for the first time on 
petition for review and provide further explanation as to what an 
amicus is permitted to do. The proposed amendment also included general 
guidelines indicating when requests to file amicus briefs will be 
granted or denied.
    A commenter generally approved of the proposed amendments but 
suggested that the MSPB should reference its recent practice of 
soliciting amicus briefs through Federal Register notices if it intends 
to continue using this practice. The MSPB has revised the final 
regulation to include a provision stating that the MSPB may solicit 
amicus briefs on its own motion.
    A commenter suggested that the MSPB should include a provision 
stating that, when the Board solicits amicus briefs on its own 
initiative, the Board will serve the amicus briefs on the parties. The 
MSPB currently serves the amicus briefs on the parties and sees no need 
to include this level of detail in the regulation.
    A commenter suggested that the MSPB add to the regulation a 
provision stating that an amicus curiae is not entitled to receive 
service of any pleadings or submit replies to briefs filed by the 
parties. As currently drafted, subparagraph (e)(5) of the regulation 
states that amici are not parties and may not participate in hearings 
but does not explicitly say that amici should not be served with copies 
of pleadings. However, the MSPB will not make the suggested change as 
the draft regulation makes clear that amici are not parties and, as 
such, plainly implies that they need not be served with copies of 
pleadings.
    A party recommended that the MSPB should require that requests for 
participation as an amicus be served on the parties, assuming the 
identity of the parties is known to the amicus. This issue was not 
addressed in the MSPB's proposed rule. However, the MSPB is willing to 
consider any specific suggestions to improve its regulations and 
procedures in this area and invites any interested party to submit a 
petition for rulemaking addressing this area of MSPB practice and 
procedure.

Section 1201.36 Consolidating and Joining Appeals

    The MSPB proposed to substitute ``removal'' for ``dismissal'' as 
the latter is not a term used by the Board to describe an employee's 
separation from employment for disciplinary reasons. The MSPB received 
no comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1201.41 Judges

    The MSPB proposed to amend this regulation to reflect the language 
used in the MSPB Strategic Plan. The MSPB received no negative comments 
concerning its proposed changes to this regulation and is adopting the 
proposed rule as final.

Section 1201.42 Disqualifying a Judge

    The MSPB proposed to amend this regulation to reflect the fact that 
under current MSPB practice a judge who considers himself or herself 
disqualified notifies the Regional Director, not the Board. The MSPB 
received no comments concerning its proposed changes to this regulation 
and is adopting the proposed rule as final.

Section 1201.43 Sanctions

    The MSPB proposed moving its regulation regarding exclusion of 
parties and representatives for contumacious behavior from 5 CFR 
1201.31 to this regulation. The MSPB further proposed to provide judges 
with explicit authority to suspend or terminate a hearing already 
underway and to delete the requirement of a show cause order, 
substituting instead a requirement that judges provide adequate prior 
warning before imposing a sanction and document the reasons for any 
such sanction. The MSPB proposed to eliminate the provision for an 
interlocutory appeal of a sanction for contumacious behavior and allow 
a judge to limit participation by a representative without excluding 
the representative from the case entirely. Finally, the proposed rule 
deleted the term ``appellant's representative'' and instead substitutes 
the term ``party's representative.''
    A commenter observed that it was unclear whether the MSPB was 
expanding a judge's authority for sanctioning contumacious behavior to 
include witnesses or other persons rather than just parties or 
representatives. MSPB judges had authority to exclude persons other 
than parties from participation in a proceeding prior to publication of 
the proposed rule under 1201.31(d), and the

[[Page 62355]]

proposed rule continues to include this authority.
    A commenter suggested that the MSPB amend the regulation to state 
that, when the judge excludes a party's representative, the judge will 
give the party a reasonable time to obtain another representative. The 
proposed and final rules include this provision in paragraph (d).
    A commenter suggested that the MSPB revise the first sentence of 
this regulation to state that the Board or a judge may impose sanctions 
``for good cause shown, and as necessary to serve the ends of 
justice.'' The MSPB will not amend the regulation as suggested because 
the definition of ``judge'' now expressly includes the Board and the 
addition of the phrase ``for good cause shown'' does not usefully add 
to the proposed standard, ``as necessary to serve the ends of 
justice.''
    Three commenters urged the MSPB to maintain the interlocutory 
appeal process in cases where a sanction is imposed. The proposed 
change recognizes, however, that providing for an automatic 
interlocutory appeal, as the current regulation does, may unnecessarily 
delay the processing of an appeal. Moreover, the revised regulation 
does not prohibit a request for an interlocutory appeal of an imposed 
sanction. A sanctioned party who believes an interlocutory appeal would 
meet the requirements of 1201.92 remains free to seek one. In making 
proposed amendments to our regulations, the Board did not propose 
changes to the substantive criteria in 1201.92 for granting 
interlocutory appeals. It would be inappropriate to publish a final 
rule that goes beyond the scope of the proposed amendments. However, 
the MSPB is willing to consider any specific suggestions to improve its 
regulations and procedures in this area and invites any interested 
party to submit a petition for rulemaking addressing this area of MSPB 
practice and procedure.

Section 1201.51 Scheduling the Hearing

    The MSPB proposed to delete the current list of approved hearing 
sites contained in Appendix III, in favor of a posting of such sites on 
the Board's Web site, thereby facilitating greater flexibility in the 
selection of cost effective locations.
    Several commenters expressed the concern that this section appears 
to be aimed at saving the MSPB travel expenses but is likely to result 
in greater costs for the responding agency. These commenters suggested 
that the regulation should be amended to maximize savings to the 
Federal Government as a whole. The MSPB's intent in proposing this 
amendment was not to minimize MSPB travel expenses at the expense of 
the parties, however, but rather to ensure that hearing site locations 
can be flexibly adjusted in response to ongoing changes in the relative 
costs of travelling to particular sites. Parties may request a change 
in an approved site if lower costs can be achieved in a particular 
case.
    A commenter recommended that the last sentence should be modified 
to state that rulings on motions requesting a different hearing 
location should ``be based on a showing that a different location will 
result in lower cost to the government as a whole.'' The MSPB does not 
believe that this suggestion accounts for the costs borne by appellants 
and therefore will not adopt the commenter's proposal.
    A commenter approved of the proposed regulation but recommended 
that the MSPB expressly authorize telephonic or video hearings and 
direct parties to its Web site for resources. The MSPB did not address 
the question of expressly authorizing telephonic or video hearings in 
its regulations and therefore the MSPB will not address this issue 
herein, except to say that this has been noted and may be considered in 
the future.
    Finally, a commenter reported that in his experience judges have 
displayed poor judgment by scheduling hearing and prehearing deadlines 
far before the completion of discovery, unilaterally setting hearing 
dates for personal convenience, and denying unopposed motions to 
reschedule hearings. This commenter also suggested that the MSPB has 
seemingly taken the approach of cutting short discovery to meet the 
prehearing dates selected by the judge. Parties may request a 
suspension under 1201.28 when additional time is needed for discovery. 
Concerns that a judge is improperly managing a particular case should 
be directed to the appropriate Regional Director or Chief 
Administrative Judge.

Section 1201.52 Public Hearings

    The MSPB proposed to amend this regulation to give administrative 
judges express authority to control the use of electronic devices at a 
hearing.
    A commenter suggested that this regulation should be broken out 
into two parts, one addressing closure of a hearing and the other 
addressing use of electronic devices. The MSPB agrees that this 
proposed change will improve the regulation, and the final rule has 
been amended accordingly.
    A commenter objected to language in this regulation allowing a 
judge to close hearings and recommended that such authority be limited 
to appeals involving classified information or in the case of a 
pseudonymous or anonymous appeal. Another commenter suggested that the 
MSPB replace the second sentence with: ``However, the judge may order a 
hearing or any part of a hearing closed when [Sensitive Security 
Information (SSI)] or classified information will be discussed, and/or 
when doing so would be in the best interests of the appellant, a 
witness, the public or any other person affected by the proceeding.'' A 
different commenter suggested that the MSPB amend this regulation to 
state that all or part of a hearing may be closed when doing so is in 
the best interests of a party, instead of limiting the inquiry to the 
best interests of an appellant. The MSPB has amended this regulation to 
substitute ``interests of a party'' for ``interests of an appellant'' 
since a respondent may offer good reasons to close a hearing, including 
the possible disclosure of classified information or SSI. The MSPB 
otherwise declines to further restrict when a hearing may be closed to 
the public, based on the foreseeability of circumstances where the 
closure of a hearing may be justified and necessary.
    A commenter recommended clarifying that the section's reach extends 
to devices which have electronic recording and two-way communication 
functionality, even if those are not the device's primary functions. A 
commenter suggested that, because cell phones are often used as clocks, 
a representative should be allowed to keep a cell phone in silent mode 
or a laptop with them during the hearing. This commenter further 
observed that an administrative judge can issue an order at the outset 
of the hearing that requires representatives to comply with all terms 
and sanction any party for not complying. Another commenter observed 
that the MSPB should reasonably control the use of cellphones during a 
hearing rather than deny such use. The proposed rule gives the 
administrative judge sufficiently broad flexibility to address the 
concerns raised in these comments on a case-by-case basis.

Section 1201.53 Record of Proceedings

    The MSPB proposed to make several changes to the regulation. The 
term ``tape recording'' was replaced by the word ``recording'' and the 
term ``written transcript'' was replaced by ``transcript.'' The MSPB 
also proposed to allow a judge or the Board to order

[[Page 62356]]

the agency to pay for a transcript in certain circumstances.
    A commenter objected to the proposed deletion of paragraph (e), 
which specifies the contents of the official record of the appeal. The 
deletion of this paragraph was unintentional. The paragraph has been 
reinserted into the final rule with minor amendments.
    Several commenters argued that the MSPB lacks the authority to 
require that agencies pay for transcripts as proposed in paragraph (b). 
While not conceding that it lacks authority to take such action, the 
MSPB is removing this provision from the final rule.
    A commenter offered a complete rewrite of this regulation to 
correct what it viewed as redundant and internally inconsistent 
provisions. In response, the MSPB has deleted a sentence in paragraph 
(a) that is duplicative of language in paragraph (c). The matter 
identified as inconsistent related to the requirement that an agency 
procure a transcript and has been addressed by the deletion of that 
provision.

Section 1201.56 Burden and Degree of Proof; Affirmative Defenses

    The Board proposed to amend this regulation in an attempt to 
reconcile the existing regulation with a significant body of Board case 
law holding that some jurisdictional elements may be established by 
making nonfrivolous allegations. The MSPB received numerous helpful 
comments concerning the proposed amendments to this regulation. 
Commenters suggested that the regulation's discussion of the varying 
degrees of proof would be confusing to pro se appellants and the phrase 
``jurisdictional hearing'' should be substituted with the word 
``hearing,'' to avoid any suggestion that a hearing with respect to a 
jurisdictional element confers any fewer rights with respect to 
discovery and other elements of MSPB due process, in a hearing on the 
merits. Other commenters recommended that the MSPB revise the 
definition of a ``nonfrivolous allegation'' and insert a sentence 
stating that a judge may dismiss a case for not meeting the 
nonfrivolous allegation standard. Finally, a commenter suggested that 
the MSPB offer further clarification of the burden that IRA appellants 
must meet to establish jurisdiction so as to avoid the dismissal of 
meritorious IRA appeals at the jurisdictional stage.
    Considering these comments, and after additional internal review, 
the Board has determined that it is appropriate to withdraw the 
proposed amendments to this regulation. We agree with many of the 
comments and conclude that it would be inappropriate to publish a final 
rule that goes beyond the scope of the proposed amendments. The MSPB 
plans to reconsider the current regulation in its entirety and, if 
amendments are determined to be necessary, offer proposed amendments to 
this regulation in a future rulemaking.

Section 1201.58 Closing the Record

    The MSPB proposed amending this regulation to conform with case law 
indicating that, notwithstanding an order setting the date on which the 
record will close, a party must be allowed to submit evidence or 
argument to rebut new evidence submitted by the other party just prior 
to the close of the record.
    A commenter generally agreed with the proposed amendment but was 
concerned that the addition of the words ``or argument'' could be 
interpreted to allow a party to add additional arguments that they had 
failed to raise before the filing deadline. The final rule revises the 
proposed language in 1201.58(c) to address this concern and clarifies 
that the regulation is intended to allow new evidence or argument that 
is offered in rebuttal of new evidence or argument submitted by the 
other party just before the record closed.
    A party observed that acknowledgment orders often include 
conflicting provisions that theoretically allow for discovery but close 
the record on issues of jurisdiction or timeliness before discovery can 
be completed. This commenter suggested that this regulation should be 
amended to require judges to properly address the relationship between 
the closing of the record on a particular issue and the close of 
discovery. This complaint was aired by more than one commenter. The 
MSPB is willing to consider any specific suggestions to improve its 
regulations and procedures in this area and invites any interested 
party to submit a petition for rulemaking addressing this area of MSPB 
practice and procedure.

Section 1201.62 Producing Prior Statements

    The MSPB proposed to delete this regulation in its entirety as it 
has virtually never been invoked or applied and is believed to be 
unnecessary. The MSPB received no comments concerning its proposed 
deletion of this regulation and the final rule makes the proposed 
deletion.

Section 1201.71 Purpose of Discovery

    The MSPB proposed an amendment adding a sentence stating that 
discovery requests and discovery responses should not ordinarily be 
filed with the Board, as is currently done in standard orders.
    A commenter voiced complaints about the current rule requiring that 
a motion to compel be filed within 10 days. This commenter instead 
suggested that such motions should be filed within a reasonable time 
prior to the prehearing conference or the current standard should be 
changed to allow the parties to agree upon a longer period of time in 
which to file the motion to compel. This area of discovery practice was 
not addressed in the proposed rule. However, the MSPB is willing to 
consider any specific suggestions to improve its regulations and 
procedures in this area and invites any interested party to submit a 
petition for rulemaking addressing this area of MSPB practice and 
procedure.

Section 1201.73 Discovery Procedures

    The MSPB proposed to eliminate the initial disclosure requirement 
of subsection (a), eliminate unnecessary distinctions between discovery 
on parties and nonparties, increase the time period in which initial 
discovery requests must be served, revise subparagraph (d)(4) to 
clarify that, if no other deadline has been specified, discovery must 
be completed no later than the prehearing or close of record 
conference, and amend subparagraph (c)(i) to reflect the MSPB's view 
that a motion to compel must contain a statement showing that the 
request was not only for relevant and material information, but that 
the scope of the request was reasonable. The proposed amendment also 
makes several other minor changes in the regulation.
    A commenter queried why certain text in paragraph (c) was absent 
from the proposed regulation. The changes proposed in the comprehensive 
rewrite of this regulation were explained in the supplementary 
information section of the proposed rule.
    A commenter suggested that the MSPB should address the application 
of (d)(1) and (d)(4) to matters refiled following a dismissal without 
prejudice by stating that the time for conducting discovery should 
restart on the date the judge issues an order reinstating the appeal. 
The MSPB believes that this change would be unwise and prefers to allow 
judges to address this matter in specific cases.
    A commenter proposed to add the word ``final'' before the phrase 
``prehearing or close of the record conference.'' The MSPB will not 
make this change as there are not multiple prehearing or close of the 
record conferences in a case.

[[Page 62357]]

    A commenter suggested that the MSPB replace ``file'' with ``serve'' 
in the first sentence of paragraph (d)(2) so it is clear that discovery 
responses should not be filed with the Board unless in connection with 
a motion to compel. The MSPB has amended paragraph (d)(2) by 
substituting the word ``serve'' for the word ``file'' to clarify that 
responses to discovery requests are served on the other party.
    A commenter suggested that the MSPB should require that all 
discovery requests made upon nonparties be served on the opposing 
party. A party can request in discovery that such requests be 
disclosed.
    A commenter agreed with the elimination of initial disclosures for 
agencies but objected to the elimination of initial disclosure 
requirements for appellants because the agency will lack key 
information about the appellant's witnesses if it must affirmatively 
ask for this information through discovery. The MSPB believes that 
removing the initial disclosures requirements for one party but not the 
other would be unfair.
    A commenter recommended adding limits on discovery and 
interrogatory requests, including subparts, consistent with those under 
the Federal Rules of Civil Procedure. Such limits are set forth in 
paragraph (e) of the proposed rule.
    A commenter suggested that the MSPB add a requirement similar to 
FRCP 26(b)(5), which requires a party to produce a privilege log when 
it asserts a privilege as the basis for withholding otherwise 
discoverable information. In making proposed amendments to our 
regulations, the Board did not propose changes to this area of 
discovery practice. It would be inappropriate to publish a final rule 
that goes beyond the scope of the proposed amendments. However, the 
MSPB is willing to consider any specific suggestions to improve its 
regulations and procedures in this area and invites any interested 
party to submit a petition for rulemaking addressing this area of MSPB 
practice and procedure.
    A commenter suggested that the MSPB should set prehearing deadlines 
to accommodate the completion of discovery instead of limiting 
discovery to meet prehearing dates. The scheduling of a prehearing 
conference must be left to the discretion of the judge. If a party 
believes insufficient time is available for discovery, he or she may 
seek a suspension under 1201.28.
    A commenter suggested that the MSPB include a provision mandating 
an automatic stay of all discovery deadlines if the Board's 
jurisdiction is called into question, with the stay remaining in effect 
until the jurisdictional issues are adjudicated. The MSPB has 
determined that adding such a provision is inadvisable because it would 
add significant delay to the adjudication of cases ultimately found to 
be within its jurisdiction. A party is free to ask for such a stay in 
an individual case.
    A commenter opposed the requirement of (c)(1)(i) that the party 
moving to compel discovery produce ``a statement showing that the 
information is relevant and material and the scope of the request is 
reasonable'' as contrary to the proper standard for discovery--that the 
information sought is likely to lead to the discovery of admissible 
evidence. In response to this comment and the differing scopes of 
discovery that apply to parties and nonparties (see Sec.  1201.72(a) 
and (b)), the MSPB has modified paragraph (c)(1)(i), to refer back to 
1201.72.

Section 1201.81 Requests for Subpoenas

    The MSPB did not offer any amendments to this regulation in the 
proposed rule. However, in light of the amendment in the final rule to 
1201.73(c)(1)(i) regarding motions to compel or issue a subpoena, the 
MSPB also deemed it appropriate to amend 1201.81(c) so that it is 
consistent with the standard described in section 1201.72(b): 
``Discovery requests that are directed to nonparties and nonparty 
Federal agencies and employees are limited to information that appears 
directly material to the issues involved in the appeal.''

Section 1201.93 Procedures

    The MSPB proposed to replace ``hearing'' with the word ``appeal'' 
because there may or may not be a pending hearing in a case where an 
interlocutory appeal has been certified to the Board. The MSPB also 
proposed to use the term ``stay the processing of the appeal'' in lieu 
of the term ``stay the appeal'' to avoid any ambiguity.
    A party observed that the proposed rule allows a stay during an 
interlocutory appeal, but it is unclear whether this stay is charged 
against the 60-day aggregate limit on case suspensions. We agree and 
have revised the regulation to clarify that a stay granted in response 
to an interlocutory appeal is not related to a case suspension under 
1201.28 and therefore any time the case is subject to such a stay is 
not counted against the time allowed for case suspensions under 
1201.28.

Section 1201.101 Explanation and Definitions

    The MSPB proposed an amendment to clarify that Mediation Appeals 
Program (MAP) mediators and settlement judges may discuss the merits of 
an MSPB case with a party without running afoul of the prohibition on 
ex parte communication. The MSPB received no comments concerning its 
proposed changes to this regulation and is adopting the proposed rule 
as final.

Section 1201.111 Initial Decision by the Judge

    The MSPB proposed to delete language about serving the Office of 
Personnel Management (OPM) and the Clerk of the Board with initial 
decisions to conform with longstanding Board practice under which OPM 
has access to all of the Board's initial and final decisions via the 
MSPB Extranet.
    A party recommended against deleting all reference to the Board's 
responsibility to serve OPM, as this is a statutory duty under 5 U.S.C. 
7701(b)(1). The MSPB has amended the proposed rule to address this 
comment.

Section 1201.112 Jurisdiction of the Judge

    The MSPB proposed an amendment that would allow an administrative 
judge to vacate an initial decision to accept a settlement agreement 
into the record when the settlement agreement is filed by the parties 
prior to the deadline for filing a petition for review but is not 
received until after the date when the initial decision would become 
the Board's final decision by operation of law. The MSPB received no 
comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1201.113 Finality of Decision

    The MSPB proposed to amend paragraph (a) to conform this regulation 
to the proposed revision to 5 CFR 1201.112(a)(4) described above. The 
MSPB proposed to add paragraph (f) to indicate that the Board will make 
a referral to OSC to investigate and take any appropriate disciplinary 
action whenever the Board finds that an agency has engaged in reprisal 
against an individual for making a protected whistleblowing disclosure.
    A commenter suggested that the MSPB address the difficulty that 
arises when a judge orders compliance with an initial decision on a 
date prior to the date the initial decision becomes final. Except for 
orders granting interim relief, compliance should not be ordered before 
the finality date and the MSPB's standard orders are formatted to avoid

[[Page 62358]]

this from occurring. The MSPB sees no need to address this situation in 
its regulations.
    Several commenters pointed out a typographical error in the opening 
sentence. The MSPB has corrected this error.
    A commenter noted that the proposed language places no restriction 
on the timeframe for a final decision. There is no time limit within 
which the Board must issue a decision on a pending petition for review, 
but the Board attempts to resolve cases as quickly as it can.
    A commenter objected to the ``reason to believe'' standard for 
referral of a prohibited personnel practice to OSC as too low and 
vague. The commenter further suggested that referral to OSC should 
remain limited to IRA appeals in which the Board found that the agency 
retaliated against the appellant and that such a referral divests the 
agency of its responsibility to address the issue internally. In the 
MSPB's view, the reasonable belief standard is neither too vague nor 
too low. In any event, the ``reason to believe'' standard is prescribed 
by statute, 5 U.S.C. 1221(f)(3), and the Board is not free to modify 
it. The Board has an obligation to make such a referral whenever it 
makes a finding that an appellant in a Board proceeding suffered 
retaliation for protected whistleblowing in violation of 5 U.S.C. 
2302(b)(8). In our view, a referral by the Board to OSC does not in any 
way prevent the agency in question from taking appropriate disciplinary 
action. The Board proceeding focuses on whether the appellant suffered 
such retaliation; it does not focus on who was responsible for the 
retaliation, whether such official(s) should be disciplined, and, if 
so, what the extent of such discipline should be. OSC is the agency 
charged with making those determinations.

Section 1201.114 Petition and Cross Petition for Review--Content and 
Procedure

    The MSPB proposed page limitations for pleadings on petition for 
review, to allow for replies to responses to petitions for review, and 
to define petitions for review and cross petitions for review. 
Paragraph (b) was amended to specify that a petition or cross petition 
for review must include ``all of the party's legal and factual 
arguments.''
    A commenter noted that the references in (a)(1), (2), (4), and (5) 
to ``a party'' are incomplete to the extent they do not include OPM and 
the Special Counsel. The phrase ``a party'' includes both of these 
agencies. See 5 CFR 1201.4(e).
    A commenter asked the MSPB to clarify in its regulations whether a 
reply to a response to a petition for review is permitted. The proposed 
regulations clearly indicate that such a pleading is authorized.
    Commenters recommended spacing limits and/or word limits, in 
addition to page limits and set forth the consequences of 
noncompliance. In response to this comment, the MSPB has modified 
paragraph (h) to include alternate word count requirements (in addition 
to page limits) and modified other language slightly. Paragraph (l) was 
added to address the consequences of noncompliance.
    A commenter noted that paragraph (f) only allows a party to file an 
extension ``before the date on which the petition for review is due'' 
and that the MSPB should provide for extenuating circumstances that may 
arise on the date of filing. This comment was addressed in a minor 
amendment to paragraph (f).
    A commenter recommended that the MSPB, when the timeliness of a 
petition for review is at issue, should address the timeliness issue of 
a petition for review before the agency is required to submit its 
response on the merits. While this suggestion has some merit, it is 
impractical for the MSPB to adopt this suggestion given the number of 
petitions for review it receives. In addition, adopting this suggestion 
would inevitably delay the resolution of those petitions for review 
ultimately found to have been timely filed.
    A commenter was unsure of the value of a reply brief and suggested 
that the MSPB allow the filing of such brief on a trial basis. The MSPB 
does not plan to implement this change as a trial project. If this new 
pleading proves unhelpful, the MSPB may address it in a future 
rulemaking.
    A commenter noted that the provisions on extensions of time and 
late filings seem to provide that an extension request made prior to 
the filing deadline serves as an extension without a formal ruling by 
the Board, at least until such a formal ruling is made and suggested 
that the automatic extension created by the filing of an extension 
request should be made explicit in the paragraph addressing extensions 
of time to file. The proposed rule does not provide that an extension 
request made on or before the filing deadline serves as an extension 
without a formal ruling by the Board.

Section 1201.115 Criteria for Granting Petition or Cross Petition for 
Review

    The MSPB proposed an amendment to address the criteria for granting 
petitions and cross petitions for review.
    A commenter objected that the use of the phrase ``including but not 
limited to'' when describing situations in which the MSPB may grant a 
petition or cross petition for review left the MSPB's authority too 
open-ended. The MSPB's intent in using this language was to give the 
MSPB the authority in other rare circumstances, either not foreseen in 
the regulation or inadvertently left out of the regulation, to grant 
such a petition. The general intent of the regulation is to grant a 
petition for review whenever the petitioner shows that: (1) The case 
was incorrectly decided based on the existing record; (2) new and 
material evidence indicates that the outcome should be different than 
in the initial decision; or (3) the petitioner did not get a full and 
fair adjudication process. As written, the regulation tries to capture 
the most common situations in which these conditions are present, but 
it could not capture all such circumstances.
    A commenter suggested amending paragraph (e) to be clearer and 
preserve the power to reopen in 1201.118. We modified the wording of 
paragraph (e) to convey the meaning more clearly.
    A commenter suggested that the MSPB adopt a 30-day time limit for 
reopening appeals. The MSPB believes such a rule lacks sufficient 
flexibility.
    A commenter objected to the inclusion of ``or legal argument'' in 
the discussion in paragraph (d) concerning reliance upon new evidence 
or legal argument at the petition for review level. The MSPB's intent 
in this regulation is to allow parties to raise new legal arguments 
arising from the discovery of new evidence, not any new legal argument 
a party wishes to raise belatedly. In addition, this language 
anticipates situations in which governing law has changed since the 
initial decision was issued.

Section 1201.116 Compliance With Orders for Interim Relief

    The MSPB proposed to amend this regulation to combine the existing 
contents of 5 CFR 1201.116 with the provisions of 5 CFR 1201.115(b) and 
(c).
    A commenter suggested that this regulation should be revised to 
provide an agency the opportunity to seek a stay of interim relief 
while its petition for review is pending. Another commenter expressed 
the concern that under paragraph (g) an appellant could be granted full 
interim relief although he or she is not the prevailing party in the 
final Board order. The Board declines to adopt these suggestions 
because stays of interim relief undermine the very purpose of granting 
such relief and risk engendering collateral litigation. The

[[Page 62359]]

MSPB sees no value in creating a separate system of reviewing this 
aspect of an initial decision while the petition for review is being 
considered.
    A commenter suggested that the language of (d) should state that 
``[i]f the agency files a petition for review or a cross petition for 
review or has not provided required interim relief * * *.'' The MSPB 
will not implement this change as the dismissal of a petition or cross 
petition for review for failure to provide required interim relief is 
only possible in cases where such a pleading has been filed.
    A commenter suggested that the regulation was unclear and asked if 
it is intended to give the appellant a discretionary opportunity to 
request dismissal of an agency petition for review for lack of proper 
interim relief under (d) and to provide another opportunity to 
challenge the completeness of interim relief under (g) in the event the 
agency petition for review is granted. The commenter's interpretation 
of the proposed rule is correct, and the proposed rule is unambiguous.

Section 1201.117 Procedures for Review or Reopening

    The MSPB proposed to amend subparagraph (a)(1) to reflect the 
significant revision to 5 CFR 1201.118, which would restrict 
``reopening'' to situations in which the Board members have previously 
issued a final order or the initial decision has become the Board's 
final order by operation of law.
    A commenter requested that the MSPB reconsider its distinction 
between nonprecedential final orders and precedential opinions and 
orders as the commenter failed to see the characterization of a 
decision as ``non-precedential'' as meaningful. As the commenter noted, 
this request concerns an issue not addressed in the proposed rule. 
Therefore, while the MSPB has taken note of this comment, no amendment 
to the MSPB's regulations is contemplated in this final rule. The MSPB 
is willing to consider any specific suggestions to improve its 
regulations and procedures in this area and invites any interested 
party to submit a petition for rulemaking addressing this area of MSPB 
practice and procedure.

Section 1201.118 Board Reopening of Final Decisions

    The MSPB proposed to amend this regulation to state that 
``reopening'' only applies to, and should be reserved for, instances in 
which the Board has already issued a final order or the initial 
decision has become the Board's final decision by operation of law. The 
MSPB also amended this regulation to incorporate well-established case 
law addressing the rare and limited circumstances in which the Board 
will reopen a final decision.
    A commenter objected to the MSPB's proposed amendment on the 
grounds that it would establish a very high standard that will make it 
difficult for OPM or other Federal agencies to successfully seek relief 
from an erroneous decision. The Board thinks the proposed standard is 
an appropriate general standard for reopening an appeal and believes 
that the concern that OPM will have difficulty seeking reopening is 
unwarranted as OPM can seek reconsideration under 5 U.S.C. 7701(e) and 
1201.119.
    A commenter observed that the amended regulation includes no time 
limit on the Board's authority to reopen a case. The MSPB does not 
believe that a preset time limit for filing a request to reopen an 
appeal is appropriate and is confident that that current language 
stating that such a request must generally be filed within a short time 
after the decision becomes final is sufficient to guard against late-
filed requests.
    A commenter was concerned that the proposed regulation would 
severely limit the MSPB's authority to reopen and reconsider cases on 
its own motion and appears to conflict with the broad authority granted 
the MSPB under 5 U.S.C. 7701(e)(1). The Board believes that reopening 
or reconsidering a final decision must be confined to rare and limited 
circumstances and that nothing in the proposed regulation conflicts 
with the grant of authority given to the MSPB under 5 U.S.C. 
7701(e)(1).
    A commenter requested clarification of the impact of the proposed 
amendments on petitions for review. The proposed rule has no effect on 
petitions for review.

Section 1201.119 OPM Petition for Reconsideration

    The MSPB proposed to make minor wording changes in this regulation 
in light of the language used in 5 CFR 1201.117 and 1201.118, and to 
eliminate any confusion between ``Final Order'' as the document title 
of a particular type of final Board decision and the generic term 
``final decision,'' which applies to any type of final decision, 
whether it is an Opinion and Order or a ``Final Order.''
    The MSPB received no comments concerning its proposed changes to 
this regulation and is adopting the proposed rule as final.

Section 1201.122 Filing Complaint; Serving Documents on Parties

    This proposed rule was intended to correct an oversight in the 
MSPB's regulations relating to the use of e-Appeal in original 
jurisdiction actions. The MSPB also proposed to amend paragraph (a) to 
require OSC to file a single copy of the complaint. Paragraphs (d) and 
(e) were deleted as unnecessary.
    The MSPB received no comments concerning its proposed changes to 
this regulation and is adopting the proposed rule as final.

Section 1201.128 Filing Complaint; Serving Documents on Parties

    The proposed amendments to this regulation were similar to the 
proposed amendments to 5 CFR 1201.122. The MSPB received no comments 
concerning its proposed changes to this regulation and is adopting the 
proposed rule as final.

Section 1201.134 Deciding Official; Filing Stay Request; Serving 
Documents on Parties

    The proposed amendments to this regulation were similar to the 
proposed amendments to 5 CFR 1201.122. The MSPB received no comments 
concerning its proposed changes to this regulation and is adopting the 
proposed rule as final.

Section 1201.137 Covered Actions; Filing Complaint; Serving Documents 
on Parties

    The proposed amendments to this regulation were similar to the 
proposed amendments to 5 CFR 1201.122. A commenter recommended that the 
MSPB eliminate the requirement in paragraph (c) that the agency file 
two copies of the complaint on the MSPB. The MSPB has made this change 
in the proposed rule.

Section 1201.142 Actions Filed by Administrative Law Judges

    The MSPB proposed to correct a typographical error in this 
regulation. The MSPB received no comments concerning its proposed 
changes to this regulation and is adopting the proposed rule as final.

Section 1201.143 Right to Hearing; Filing Complaint; Serving Documents 
on Parties

    The proposed amendments to this regulation were similar to the 
proposed amendments to 5 CFR 1201.122. A minor technical amendment has 
been made to paragraph (c) to be consistent with requirements for 
filing new appeals under the Board's appellate jurisdiction. Section 
1201.26(a) provides

[[Page 62360]]

that the appellant ``must file two copies of both the appeal and all 
attachments with the appropriate Board office, unless the appellant 
files an appeal in electronic form under Sec.  1201.14. Unlike the 
original jurisdiction appeals under 1201.122, .128, and .134, the MSPB 
needs a second copy for service on the opposing party.

Section 1201.153 Contents of Appeal

    The MSPB proposed to amend (a)(2) to clarify that not all 
discrimination matters may be raised with the Board and substitute the 
term ``under a negotiated grievance procedure'' for the word 
``grievance'' to reflect that these are the only types of grievances 
covered under the mixed cases regulations. The MSPB received no 
comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1201.154 Time for Filing Appeal; Closing Record in Cases 
Involving Grievance Decisions

    The MSPB proposed to incorporate by reference the rules governing 
constructive receipt as proposed in 5 CFR 1201.22(b)(3). The MSPB 
received no comments concerning its proposed changes to this regulation 
and is adopting the proposed rule as final.

Section 1201.155 Requests for Review of Arbitrators' Decisions

    The MSPB proposed to remove the existing regulation as unnecessary 
and put in its place a new regulation addressing requests for review of 
arbitrators' decisions. The proposed rule also removed the existing 
regulation at 5 CFR 1201.154(d) and moved it into 5 CFR 1201.155. The 
MSPB has noted that the instructions in the proposed rule did not 
actually delete paragraph (d) from section 1201.154; nor did it delete 
paragraph (e), which also relates to review of arbitrators' decisions, 
from section 1201.155. In addition, the MSPB had neglected to 
incorporate language from paragraph (d) as to when a request for review 
of an arbitrator's decision must be filed. The final rule corrects 
these oversights. The requirement as to when a request for review must 
be filed is now paragraph (b) in section 1201.155, and what had been 
proposed as paragraphs (c) through (e) have become paragraphs (d) 
through (f).
    Several commenters objected to a provision in paragraph (d) (now 
paragraph (e)) allowing an issue to be given to a judge for development 
of the record. These commenters stated that where a remand is 
necessary, the matter should be returned to the arbitrator, that the 
MSPB's proposed rule conflicts with the collective bargaining process, 
and that it would be prejudicial to the agency to allow the claim to be 
raised for the first time upon the MSPB's review of an arbitrator's 
award. We were concerned that remand to the arbitrator is not practical 
or feasible in most cases. Arbitration is a matter of contract and, 
once the arbitrator has issued an award, the contract has been 
performed and the arbitrator has been paid. The arbitrator could not 
become involved with the case on remand unless the union and the agency 
agreed to create a new contract. We felt it would be more practical and 
efficacious to forward such cases to MSPB judges where further 
development of the record is required.
    A commenter objects to paragraph (b), which would limit review to 
cases in which the employee's claim of discrimination was raised in the 
negotiated grievance procedure as inconsistent with the 
``notwithstanding'' clause of 5 U.S.C. 7702. The Board does not believe 
this change is inconsistent with the ``notwithstanding'' clause of 
section 7702, and does not construe the Federal Circuit's decision in 
Jones as compelling a contrary conclusion. An appellant who raises a 
discrimination claim to the arbitrator in addition to the Title 5 or 
other employment claim will be entitled to an adjudication of both. All 
the Board is doing is specifying when the claim of discrimination must 
be raised. We note that section 7121(d) provides for Board review of 
``the final decision [of the arbitrator] pursuant to section 7702 of 
this title * * *.'' If the Board were to adjudicate a claim of 
discrimination that could have been but was not raised to the 
arbitrator, it would not be reviewing the arbitrator's final decision 
with respect to that claim; it would be adjudicating the claim de novo.

Section 1201.181 Authority and Explanation

    The MSPB proposed non-substantive changes to this regulation that 
merely reordered the information and added descriptive labels to each 
paragraph. The MSPB received no comments concerning its proposed 
changes to this regulation and is adopting the proposed rule as final.

Section 1201.182 Petition for Enforcement

    The MSPB proposed to amend this regulation to clarify that the 
Board's enforcement authority under 5 U.S.C. 1204(a)(2) extends to 
situations in which a party asks the Board to enforce the terms of a 
settlement agreement entered into the record for purposes of 
enforcement as well as to situations in which a party asks the Board to 
enforce the terms of a final decision or order.
    A commenter observed that few agencies inform the appellant when 
they believe that compliance is complete and therefore the time limit 
for filing an enforcement petition will rarely be triggered by the 
issuance of a notice of compliance by the agency. This commenter 
suggested that the Board should provide a deadline for an agency to 
issue a compliance notice and, if the compliance notice is issued, 
provide the appellant 30 days to file an enforcement petition. The 
commenter further suggested that, if the agency does not file a 
compliance notice, the regulation should give the appellant a 
reasonable period of time to file his or her petition after such notice 
should have been filed by the agency. The MSPB recognizes and 
appreciates the concerns raised by the commenter but believes that the 
current rule is more appropriate, especially in light of the 
complicated issues that sometimes arise in an agency's attempt to 
comply with an MSPB order, such as when compliance with a Board order 
requires the involvement of another agency.

Section 1201.183 Procedures for Processing Petitions for Enforcement

    The MSPB proposed amendments to this regulation to change the 
nature of an administrative judge's decision in a compliance proceeding 
from a ``recommendation'' to a regular initial decision, which would 
become the Board's final decision if a petition for review is not filed 
or is denied. The proposed regulation provided that the ``responsible 
agency official,'' whose pay may be suspended should a finding of 
noncompliance become the Board's final decision, will be served with a 
copy of any initial decision finding the agency in noncompliance. To 
the extent that an agency found to be in noncompliance decides to take 
the compliance actions identified in the initial decision, the proposed 
regulation increases the period for providing evidence of compliance 
from 15 days to 30 days. The MSPB also proposed in paragraph (c) to 
codify the different burdens of proof that apply in these enforcement 
actions.
    Commenters observed that the proposed rule, which eliminates the 
``good faith'' consideration in evaluating a party's compliance with a 
final decision, establishes a stricter standard than that provided for 
under Rule 70 of the Federal Rules of Civil Procedure and arguably 
establishes a strict liability standard. These commenters recommended 
that the good faith

[[Page 62361]]

element be re-inserted into the regulation as there are occasions when 
an agency, even if it acted with diligence in attempting to comply with 
an order, cannot do so within the time frame specified by the order. 
The objective behind the change to this regulation is threefold: (1) To 
get the agencies to take their obligations seriously during the 
regional office proceeding; (2) to get the judges to actually resolve 
and make concrete what the agency's obligations are; and (3) to the 
maximum feasible extent, get actual compliance at the regional office 
level. Under this new framework, it is irrelevant whether the agency 
has made a good faith attempt to comply with its obligations. What is 
required is full and complete compliance. Retaining the ``good faith'' 
provision would run counter to these purposes.
    A commenter recommended that the regulation be amended to require 
that a copy of the initial decision finding noncompliance be served not 
only on the responsible agency official, but also on all other parties 
on the certificate of service. The MSPB will not make this proposed 
amendment as nothing in the regulation suggests that the requirement to 
serve the responsible agency official will affect service on any other 
person.
    A commenter pointed out that the Board stated in the notice of 
proposed rulemaking that an initial decision finding noncompliance 
would become final if neither party petitioned for review, but 
paragraph (b) of the proposed regulation stated that, ``[f]ollowing 
review of the initial decision and the written submissions of the 
parties, the Board will render a final decision on the issues of 
compliance.'' This seemed to imply that initial decisions would not 
become final if no pleadings were filed. New paragraph (b) clarifies 
this issue by providing that the initial decision will become the 
Board's final compliance decision if the noncomplying party files 
neither a petition for review nor a statement of compliance, and that 
the matter will then be processed further under the enforcement 
provisions of the regulation.

Heading of Subpart H

    The Board proposed to revise the heading for Subpart H of Part 1201 
to reflect that the subpart addresses attorney fees and related costs, 
consequential damages, compensatory damages, and liquidated damages. 
The MSPB received no comments concerning this proposed amendment and is 
adopting the proposed change as previously published.

Section 1201.201 Statement of Purpose

    The MSPB proposed to amend this regulation by adding a provision 
relating to awards of liquidated damages under VEOA. The MSPB received 
no comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1202.202 Authority for Awards

    The MSPB proposed to amend this regulation by adding a provision 
relating to awards of liquidated damages under VEOA. The MSPB received 
no comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1201.204 Proceedings for Consequential, Liquidated, and 
Compensatory Damages

    The MSPB proposed to change ``3-member Board'' to ``the Board'' in 
order to cover situations in which there are only two Board members. In 
addition, because requests for ``liquidated damages'' in VEOA appeals 
are also handled in addendum proceedings, the MSPB proposed to modify 
this regulation to include requests for such damages. The MSPB received 
no comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Appendix III to Part 1201

    The MSPB proposed to remove and reserve Appendix III. See earlier 
discussion regarding proposal to amend 5 CFR 1201.51(d).

Section 1203.2 Definitions

    The MSPB proposed to revise this regulation to acknowledge that 
there are now 12 prohibited personnel practices. The MSPB received no 
comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1208.3 Application of 5 CFR Part 1201

    The MSPB proposed to amend this section to reflect the references 
to liquidated damages in section 5 CFR 1201.204. The MSPB received no 
comments concerning its proposed changes to this regulation and is 
adopting the proposed rule as final.

Section 1208.21 VEOA Exhaustion Requirement

    The MSPB proposed to amend paragraph (a) to clarify and codify an 
appellant's burden of proving exhaustion in a VEOA appeal. The MSPB 
proposed in paragraph (b) to add a section addressing equitable 
tolling. The MSPB received no comments concerning its proposed changes 
to this regulation and is adopting the proposed rule as final.

Section 1208.22 Time of Filing

    The MSPB proposed to add paragraph (c) to address the possibility 
of excusing an untimely filed appeal under the doctrine of equitable 
tolling.
    A commenter stated that by providing examples of circumstances that 
could support equitable tolling, the MSPB may be limiting the 
circumstances that will be described by appellants and recommended that 
the MSPB change the language from ``examples include'' to ``examples 
include, but are not limited to.'' The MSPB sees no need to make this 
change as the phrase ``examples include'' clearly indicates that the 
stated examples are not an exclusive list of all available 
circumstances that could support a claim of equitable tolling.

Section 1208.23 Content of a VEOA Appeal; Request for Hearing

    The MSPB proposed to amend this regulation to reflect the fact that 
it will scrutinize the exhaustion issue in a VEOA appeal in the same 
way that it scrutinizes the exhaustion issue in an IRA appeal. The 
proposed amendment therefore added a new subparagraph between current 5 
CFR 1208.23(a)(4) and (5), stating that a VEOA appeal must contain 
evidence to identify the specific claims that the appellant raised 
before the Department of Labor. The MSPB received no comments 
concerning its proposed changes to this regulation and is adopting the 
proposed rule as final.

Section 1209.2 Jurisdiction

    The MSPB proposed to change the reference in paragraph (a) from 5 
U.S.C. 1214(a)(3) to 5 U.S.C. 1221(a). In addition, in light of a 1994 
amendment to 5 U.S.C. 7121 adding paragraph (g), the MSPB proposed to 
overrule a significant body of Board case law and amend this regulation 
to provide that an employee affected by a prohibited personnel practice 
``may elect not more than one'' of 3 remedies: (A) An appeal to the 
Board under 5 U.S.C. 7701; (B) a negotiated grievance under 5 U.S.C. 
7121(d); or (C) corrective action under subchapters II and III of 5 
U.S.C. chapter 12, i.e., a complaint filed with OSC (5 U.S.C. 1214), 
which can be followed by an IRA appeal filed with the Board (5 U.S.C. 
1221). The proposed amendment also made clear that an election is 
deemed to have been made based on which of the 3 actions the individual 
files first. The proposed rule further stated that when taking an 
otherwise

[[Page 62362]]

appealable action, agencies would be required, per revised 5 CFR 
1201.21, to advise employees of their options under 5 U.S.C. 7121(g) 
and the consequences of such an election.
    Several commenters object to the new election of remedies provision 
contained in paragraph (d). These commenters argue that the election 
requirement in paragraph (d) is not required under 5 U.S.C. 7121(g) 
because that statute applies only to employees covered by collective 
bargaining agreements. As explained in the supplementary information 
section of the proposed rule, the MSPB is convinced that a plain 
reading of 5 U.S.C. 7121(g) indicates that an individual who has been 
subjected to an otherwise appealable action, but who seeks corrective 
action from OSC before filing an appeal with the Board, has elected an 
IRA appeal and is limited to the rights associated with such an appeal. 
The proposed rule therefore adopted the plain language reading of 5 
U.S.C. 7121(g) and proposed to overrule Massimino v. Department of 
Veterans Affairs, 58 M.S.P.R. 318 (1993) and its progeny.
    An employee who is not covered by a negotiated grievance procedure 
does not have all three of the options listed in subsection 7121(g)(3), 
as he or she cannot elect the negotiated grievance procedure. That does 
not mean, however, that the statute therefore contemplates that such an 
individual may elect both of the other two options; it simply means 
that the individual has to select one or the other of those two 
options. We note in this regard that the term ``employee'' in 5 U.S.C. 
chapter 71 is not limited to those covered by negotiated grievance 
procedures. See 5 U.S.C. 7103(a)(2).
    Several commenters expressed concern about the relationship between 
elections following proposed and effected personnel actions. One 
commenter noted that when an employee has filed a complaint with OSC at 
the proposal notice stage and thereafter wants to file a direct appeal 
once an action has been taken, the employee will be required to 
withdraw the OSC complaint regarding the proposal notice in order to 
get full direct appeal rights as to the removal. The MSPB does not 
agree that the new election provision would require this result. In the 
MSPB's view, an employee would be able to make separate elections for 
both the proposed and effected actions and pursue the remedy selected 
for each action. The MSPB understands that there remain practical 
concerns when an individual wants to pursue with OSC the claim that a 
proposal notice was retaliation for whistleblowing, while pursuing a 
direct appeal with the Board for the effected adverse action. In 
particular, there would be the possibility that the adverse action 
appeal might proceed toward the issuance of an initial decision before 
OSC has the opportunity to investigate the claim and pursue corrective 
action on the individual's behalf. We note in this regard that the 
appellant in the adverse action appeal could seek a stay under section 
1201.28 or a dismissal without prejudice under section 1201.29, to 
ensure that OSC has an opportunity to complete its investigation and 
seek corrective action.
    A commenter agreed that the MSPB had no choice but to reconcile its 
regulations regarding election of remedies with the requirements of 5 
U.S.C. 7121(g) but argued that the MSPB should not apply the new 
election provision retroactively as retroactive application is not 
favored in the law and would lead to confusion and increased 
litigation. The new election of remedies provision does not address 
whether it may be applied retroactively. However, with regard to this 
issue, it must be noted that Congress amended 5 U.S.C. 7121 to add 
paragraph (g) in 1994. Public Law 103-424, section 9(b), 108 Stat. 
4361, 4365-66 (1994). There would be difficult interim questions 
concerning cases that are already in the pipeline. One issue would be 
whether, despite the seemingly clear language and consequences of Sec.  
7121(g), the appellant should be deemed to have made a valid and 
binding election. An argument might be made that an election is not 
binding unless it constitutes a knowing and informed decision. Cf. 
Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1326-27 (Fed. 
Cir. 2006) (concluding that the appellant made a knowing and informed, 
and therefore binding, election under Sec.  7121(e)). The proposed 
regulation does not resolve this question, which would be resolved in 
particular appeals. If the Board were to hold that some elections were 
not binding, a related question would be whether the Board should 
excuse the untimely filing of the Board appeal, which would be filed 
well after the 30-day deadline of 5 CFR 1201.22(b)(1). Again, this 
would be resolved in particular appeals.

Section 1209.4 Definitions

    The MSPB proposed to amend the definition of ``whistleblowing.'' 
The MSPB received no comments concerning its proposed changes to this 
regulation and is adopting the proposed rule as final.

Section 1209.5 Time of Filing

    The MSPB proposed to amend this regulation to eliminate the 
distinction between IRA appeals and otherwise appealable actions in 
light of the change made to 5 CFR 1209.2, and to revise the language 
regarding equitable tolling consistent with the changes made in 
sections 5 CFR 1208.21 and .22.
    A commenter stated that by providing examples of circumstances that 
could support equitable tolling, the MSPB may be limiting the 
circumstances that will be described by appellants and recommended that 
the MSPB change the language from ``examples include'' to ``examples 
include, but are not limited to.'' The MSPB sees no need to make this 
change as the phrase ``examples include'' clearly indicates that the 
stated examples are not an exclusive list of all available 
circumstances that could support a claim of equitable tolling.

Section 1209.6 Content of Appeal; Right to Hearing

    As in the modification to 5 CFR 1201.24(d), the MSPB proposed to 
clarify that an appellant does not automatically have a right to a 
hearing in every Board appeal and that such a right exists, if at all, 
only when the appeal has been timely filed and the appellant has 
established jurisdiction over the appeal. The MSPB received no comments 
concerning its proposed changes to this regulation and is adopting the 
proposed rule as final.

Comments Beyond the Scope of the Proposed Rule

    The MSPB solicited comments on any other aspect of its adjudicatory 
regulations in its proposed rule. The MSPB received a number of 
comments on such matters and appreciates the thoughtfulness with which 
the commenters made their views known. The MSPB has reviewed these 
submissions and will consider each of the commenters' ideas as it 
continues to strive to improve its adjudicatory regulations.
    One comment received by the MSPB addressed two issues that the 
commenter, after noting that the two issues were beyond the scope of 
matters addressed in the proposed rule, asked the MSPB to consider as a 
petition for rulemaking. In keeping with the MSPB's proposed rule 
regarding petitions for rulemaking and the MSPB's commitment to post 
such requests on its Web site, the MSPB will shortly post this request 
on its Web site with a request for comments from interested parties. 
The petition asks the MSPB to replace the definition of

[[Page 62363]]

``preponderance of the evidence'' in 5 CFR 1201.56(c)(2) and correct a 
perceived error regarding the burdens of proof in a case under 5 U.S.C. 
4303 in its holding in Griffin v. Department of the Army, 23 M.S.P.R. 
657 (1984).

List of Subjects in 5 CFR Parts 1200, 1201, 1203, 1208, and 1209

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR parts 1200, 1201, 1203, 1208, and 1209 as follows:

PART 1200--[AMENDED]

0
1. The authority citation for 5 CFR part 1200 continues to read as 
follows:

    Authority:  5 U.S.C. 1201 et seq.

0
2. Add Sec.  1200.4 as follows:


Sec.  1200.4  Petition for Rulemaking.

    (a) Any interested person may petition the MSPB for the issuance, 
amendment, or repeal of a rule. For purposes of this regulation, a 
``rule'' means a regulation contained in 5 CFR parts 1200 through 1216. 
Each petition shall:
    (1) Be submitted to the Clerk of the Board, 1615 M Street NW., 
Washington, DC 20419;
    (2) Set forth the text or substance of the rule or amendment 
proposed or specify the rule sought to be repealed;
    (3) Explain the petitioner's interest in the action sought; and
    (4) Set forth all data and arguments available to the petitioner in 
support of the action sought.
    (b) No public procedures will be held on the petition before its 
disposition. If the MSPB finds that the petition contains adequate 
justification, a rulemaking proceeding will be initiated or a final 
rule will be issued as appropriate under the Administrative Procedure 
Act. If the Board finds that the petition does not contain adequate 
justification, the petition will be denied by letter or other notice, 
with a brief statement of the ground for denial. The Board may consider 
new evidence at any time; however, repetitious petitions for rulemaking 
will not be considered.

PART 1201--PRACTICES AND PROCEDURES

0
3. The authority citation for 5 CFR 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
4. In Sec.  1201.3, revise paragraph (a) to read as follows:


Sec.  1201.3  Appellate Jurisdiction.

    (a) Generally. The Board's appellate jurisdiction is limited to 
those matters over which it has been given jurisdiction by law, rule, 
or regulation. The Board's jurisdiction does not depend solely on the 
label or nature of the action or decision taken or made but may also 
depend on the type of Federal appointment the individual received, 
e.g., competitive or excepted service, whether an individual is 
preference eligible, and other factors. Accordingly, the laws and 
regulations cited below, which are the source of the Board's 
jurisdiction, should be consulted to determine not only the nature of 
the actions or decisions that are appealable, but also the limitations 
as to the types of employees, former employees, or applicants for 
employment who may assert them. Instances in which a law or regulation 
authorizes the Board to hear an appeal or claim include the following:
    (1) Adverse Actions. Removals (terminations of employment after 
completion of probationary or other initial service period), reductions 
in grade or pay, suspension for more than 14 days, or furloughs for 30 
days or less for cause that will promote the efficiency of the service; 
an involuntary resignation or retirement is considered to be a removal 
(5 U.S.C. 7511-7514; 5 CFR part 752, subparts C and D);
    (2) Retirement Appeals. Determinations affecting the rights or 
interests of an individual under the Federal retirement laws (5 U.S.C. 
8347(d)(1)-(2) and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 
839, 842, 844, and 846);
    (3) Termination of Probationary Employment. Appealable issues are 
limited to a determination that the termination was motivated by 
partisan political reasons or marital status, and/or if the termination 
was based on a pre-appointment reason, whether the agency failed to 
take required procedures. These appeals are not generally available to 
employees in the excepted service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 
315.806 & 315.908(b));
    (4) Restoration to Employment Following Recovery from a Work-
Related Injury. Failure to restore, improper restoration of, or failure 
to return following a leave of absence following recovery from a 
compensable injury. (5 CFR 353.304);
    (5) Performance-Based Actions Under Chapter 43. Reduction in grade 
or removal for unacceptable performance (5 U.S.C. 4303(e); 5 CFR part 
432);
    (6) Reduction in Force. Separation, demotion, or furlough for more 
than 30 days, when the action was effected because of a reduction in 
force (5 CFR 351.901); Reduction-in-force action affecting a career or 
career candidate appointee in the Foreign Service (22 U.S.C. 4011);
    (7) Employment Practices Appeal. Employment practices administered 
by the Office of Personnel Management to examine and evaluate the 
qualifications of applicants for appointment in the competitive service 
(5 CFR 300.104);
    (8) Denial of Within-Grade Pay Increase. Reconsideration decision 
sustaining a negative determination of competence for a general 
schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410);
    (9) Suitability Action. Action based on suitability determinations, 
which relate to an individual's character or conduct that may have an 
impact on the integrity or efficiency of the service. Suitability 
actions include the cancellation of eligibility, removal, cancellation 
of reinstatement eligibility, and debarment. A non-selection or 
cancellation of eligibility for a specific position based on an 
objection to an eligible or a pass over of a preference eligible under 
5 CFR 332.406 is not a suitability action. (5 CFR 731.501, 731.203, 
731.101(a));
    (10) Various Actions Involving the Senior Executive Service. 
Removal or suspension for more than 14 days (5 U.S.C. 7543(d) and 5 CFR 
752.605); Reduction-in-force action affecting a career appointee (5 
U.S.C. 3595); or Furlough of a career appointee (5 CFR 359.805); and
    (11) Miscellaneous Restoration and Reemployment Matters.
    (i) Failure to afford reemployment priority rights pursuant to a 
Reemployment Priority List following separation by reduction in force 
(5 CFR 330.214);
    (ii) Full recovery from a compensable injury after more than 1 
year, because of the employment of another person (5 CFR 302.501);
    (iii) Failure to reinstate a former employee after service under 
the Foreign Assistance Act of 1961 (5 CFR 352.508);
    (iv) Failure to re-employ a former employee after movement between 
executive agencies during an emergency (5 CFR 352.209);
    (v) Failure to re-employ a former employee after detail or transfer 
to an international organization (5 CFR 352.313);
    (vi) Failure to re-employ a former employee after service under the 
Indian Self-Determination Act (5 CFR 352.707); or

[[Page 62364]]

    (vii) Failure to re-employ a former employee after service under 
the Taiwan Relations Act (5 CFR 352.807).
* * * * *

0
5. In Sec.  1201.4 revise paragraphs (a) and (j) and add new paragraph 
(o) to read as follows:


Sec.  1201.4  General definitions.

    (a) Judge. Any person authorized by the Board to hold a hearing or 
to decide a case without a hearing, including the Board or any member 
of the Board, or an administrative law judge appointed under 5 U.S.C. 
3105 or other employee of the Board designated by the Board to hear 
such cases, except that in any case involving a removal from the 
service, the case shall be heard by the Board, an employee experienced 
in hearing appeals, or an administrative law judge.
* * * * *
    (j) Date of service. ``Date of service'' has the same meaning as 
``date of filing'' under paragraph (l) of this section.
* * * * *
    (o) Grievance. A complaint by an employee or labor organization 
under a negotiated grievance procedure covered by 5 U.S.C. 7121.

0
6. In Sec.  1201.14 revise paragraphs (c) and (m)(1) to read as 
follows:


Sec.  1201.14  Electronic Filing Procedures.

* * * * *
    (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);
    (3) File a pleading with the Special Panel (Sec.  1201.137);
    (4) File a pleading that contains Sensitive Security Information 
(SSI) (49 CFR parts 15 and 1520);
    (5) File a pleading that contains classified information (32 CFR 
part 2001); or
    (6) File a request to participate as an amicus curiae or file a 
brief as amicus curiae pursuant to Sec.  1201.34 of this part.
* * * * *
    (m) * * *
    (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 will be determined 
based on the time zone from which the pleading was submitted. 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 
Washington Regional Office (in the Eastern Time Zone) on August 20, it 
would be considered timely, as it was submitted prior to midnight 
Pacific Time on August 20.
* * * * *

0
7. In Sec.  1201.21 revise paragraphs (d) introductory text, (d)(2), 
(d)(3) and add new paragraphs (d)(4), (e) and (f) to read as follows:


Sec.  1201.21  Notice of appeal rights.

* * * * *
    (d) Notice of any right the employee has to file a grievance or 
seek corrective action under subchapters II and III of 5 U.S.C. chapter 
12, including:
* * * * *
    (2) Whether both an appeal to the Board and a grievance may be 
filed on the same matter and, if so, the circumstances under which 
proceeding with one will preclude proceeding with the other, and 
specific notice that filing a grievance will not extend the time limit 
for filing an appeal with the Board;
    (3) Whether there is any right to request Board review of a final 
decision on a grievance in accordance with Sec.  1201.155 of this part; 
and
    (4) The effect of any election under 5 U.S.C. 7121(g), including 
the effect that seeking corrective action under subchapters II and III 
of 5 U.S.C. chapter 12 will have on the employee's appeal rights before 
the Board.
    (e) Notice of any right the employee has to file a complaint with 
the Equal Employment Opportunity Commission or to grieve allegations of 
unlawful discrimination, consistent with the provisions of 5 U.S.C. 
7121(d) and 29 CFR 1614.301 and 1614.302.
    (f) The name or title and contact information for the agency 
official to whom the Board should send the Acknowledgment Order and 
copy of the appeal in the event the employee files an appeal with the 
Board. Contact information should include the official's mailing 
address, email address, telephone and fax numbers.


0
8. In Sec.  1201.22, add paragraph (b)(3) to read as follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

* * * * *
    (b) * * *
    (3) An appellant is responsible for keeping the agency informed of 
his or her current home address for purposes of receiving the agency's 
decision, and correspondence which is properly addressed and sent to 
the appellant's address via postal or commercial delivery is presumed 
to have been duly delivered to the addressee. While such a presumption 
may be overcome under the circumstances of a particular case, an 
appellant may not avoid service of a properly addressed and mailed 
decision by intentional or negligent conduct which frustrates actual 
service. The appellant may also be deemed to have received the agency's 
decision if it was received by a designated representative or a person 
of suitable age and discretion residing with the appellant. The 
following examples illustrate the application of this rule:

    Example A: An appellant who fails to pick up mail delivered to 
his or her post office box may be deemed to have received the agency 
decision.
    Example B: An appellant who did not receive his or her mail 
while in the hospital may overcome the presumption of actual 
receipt.
     Example C: An appellant may be deemed to have received an 
agency decision received by his or her roommate.
* * * * *

0
9. Revise Sec.  1201.23 to read as follows:


Sec.  1201.23  Computation of time.

    In computing the number of days allowed for complying with any 
deadline, the first day counted is the day after the event from which 
the time period begins to run. If the date that ordinarily would be the 
last day for filing falls on a Saturday, Sunday, or Federal holiday, 
the filing period will include the first workday after that date. 
Unless a different deadline is specified by the Board or its designee, 
5 days are added to a party's deadline for responding to a document 
served on the party by mail.

    Example 1: If an employee receives a decision notice that is 
effective on July 1, the 30-day period for filing an appeal starts 
to run on July 2. The filing ordinarily would be timely only if it 
is made by July 31. If July 31 is a Saturday, however, the last day 
for filing would be Monday, August 2.
     Example 2: The judge orders the appellant to file a response to 
a jurisdictional order no later than October 15, 2012, and that the 
agency's response is due 10 days after the filing of the appellant's 
pleading. If the appellant serves the agency with a pleading via 
regular mail on October 15, the agency's deadline for filing a 
response will be October 30, not October 25.


0
10. In Sec.  1201.24, revise paragraphs (a)(7) and (d) to read as 
follows:


Sec.  1201.24  Content of an appeal; right to hearing.

    (a) * * *
    (7) Where applicable, a copy of the notice of proposed action, the 
agency decision being appealed and, if available, the SF-50 or similar 
notice of

[[Page 62365]]

personnel action. No other attachments should be included with the 
appeal, as the agency will be submitting the documents required by 
1201.25 of this part, and there will be several opportunities to submit 
evidence and argument after the appeal is filed. An appellant should 
not miss the deadline for filing merely because he or she does not 
currently have all of the documents specified in this section.
* * * * *
    (d) Right to hearing. An appellant generally has a right to a 
hearing on the merits if the appeal has been timely filed and the Board 
has jurisdiction over the appeal.
* * * * *

0
11. Revise Sec.  1201.28 to read as follows:


Sec.  1201.28  Case suspension procedures.

    (a) Suspension period. The judge may issue an order suspending the 
processing of an appeal for up to 30 days. The judge may grant a second 
order suspending the processing of an appeal for up to an additional 30 
days.
    (b) Early termination of suspension period. The administrative 
judge may terminate the suspension period upon joint request of the 
parties or where the parties request the judge's assistance and the 
judge's involvement is likely to be extensive.
    (c) Termination of suspension period. If the final day of any 
suspension period falls on a day on which the Board is closed for 
business, adjudication shall resume as of the first business day 
following the expiration of the period.
    (d) Mediation. Whenever an appeal is accepted into the Board's 
Mediation Appeals Program (MAP), the processing of the appeal and all 
deadlines are suspended until the mediator returns the case to the 
judge. This provision does not apply where the parties enter into other 
forms of alternative dispute resolution.


0
12. Add Sec.  1201.29 as follows:


Sec.  1201.29  Dismissal without prejudice.

    (a) In general. Dismissal without prejudice is a procedural option 
that allows for the dismissal and subsequent refiling of an appeal.
    (b) Procedure. Dismissal without prejudice may be granted on the 
judge's own motion or upon request by either party. The decision 
whether to dismiss an appeal without prejudice is committed to the 
sound discretion of the judge, and may be granted when the interests of 
fairness, due process, and administrative efficiency outweigh any 
prejudice to either party.
    (c) Refiling. Except in certain USERRA appeals under Part 1208 
involving the use of military leave, a decision dismissing an appeal 
without prejudice will include a date certain by which the appeal must 
be refiled. The judge will determine whether the appeal must be refiled 
by the appellant or whether it will be automatically refiled by the 
judge as of a date certain. When a dismissal without prejudice is 
issued over the objection of the appellant, the appeal will be 
automatically refiled as of a date certain.
    (d) Waiver. When a dismissed appeal must be refiled by the 
appellant, requests for waiver of a late filing based upon good cause 
will be liberally construed.


0
13. In Sec.  1201.31, revise paragraphs (b) and (d) as follows:


Sec.  1201.31  Representatives.

* * * * *
    (b) A party may choose any representative as long as that person is 
willing and available to serve. The other party or parties may 
challenge the designation, however, on the ground that it involves a 
conflict of interest or a conflict of position. Any party who 
challenges the designation must do so by filing a motion with the judge 
within 15 days after the date of service of the notice of designation 
or 15 days after a party becomes aware of the conflict. The judge will 
rule on the motion before considering the merits of the appeal. These 
procedures apply equally to each designation of representative, 
regardless of whether the representative was the first one designated 
by a party or a subsequently designated representative. If a 
representative is disqualified, the judge will give the party whose 
representative was disqualified a reasonable time to obtain another 
one.
* * * * *
    (d) As set forth in paragraphs (d) and (e) of Sec.  1201.43 of this 
part, a judge may exclude a representative from all or any portion of 
the proceeding before him or her for contumacious conduct or conduct 
prejudicial to the administration of justice.
* * * * *

0
14. In Sec.  1201.33, revise paragraph (a) to read as follows:


Sec.  1201.33  Federal witnesses.

    (a) Every Federal agency or corporation, including nonparties, must 
make its employees or personnel available to furnish sworn statements 
or to appear at a deposition or hearing when ordered by the judge to do 
so. When providing those statements or appearing at a deposition or at 
the hearing, Federal employee witnesses will be in official duty status 
(i.e., entitled to pay and benefits including travel and per diem, 
where appropriate). When a desired witness is employed by an agency who 
is not a party to the Board proceeding, the requesting party may avail 
itself of the provisions of sections 1201.81 to 1201.85 of this part 
regarding subpoenas to ensure the attendance of the witness. In 
addition, the Board and the parties will implement this provision, to 
the maximum extent possible, to avoid conflict with other regulations 
governing the production of Federal employees in matters in litigation.
* * * * *

0
15. In Sec.  1201.34, revise paragraph (e) to read as follows:


Sec.  1201.34  Intervenors and amicus curiae.

* * * * *
    (e) Amicus curiae. (1) An amicus curiae is a person or organization 
who, although not a party to an appeal, gives advice or suggestions by 
filing a brief with the judge or the Board regarding an appeal. Any 
person or organization, including those who do not qualify as 
intervenors, may request permission to file an amicus brief. The Board 
may solicit amicus briefs on its own motion.
    (2) A request to file an amicus curiae brief must include a 
statement of the person's or organization's interest in the appeal and 
how the brief will be relevant to the issues involved.
    (3) The request may be granted, in the discretion of the judge or 
the Board, if the person or organization has a legitimate interest in 
the proceedings, and such participation will not unduly delay the 
outcome and may contribute materially to the proper disposition 
thereof.
    (4) The amicus curiae shall submit its brief within the time limits 
set by the judge or the Board and must comply with any further orders 
by the judge or the Board.
    (5) An amicus curiae is not a party to the proceeding and may not 
participate in any way in the conduct of the hearing, including the 
presentation of evidence or the examination of witnesses. The Board, in 
its discretion, may invite an amicus curiae to participate in oral 
argument in proceedings in which oral argument is scheduled.


0
16. In Sec.  1201.36, revise paragraph (a)(2) to read as follows:


Sec.  1201.36  Consolidating and joining appeals.

    (a) * * *
    (2) Joinder occurs when one person has filed two or more appeals 
and they

[[Page 62366]]

are united for consideration. For example, a judge might join an appeal 
challenging a 30-day suspension with a pending appeal challenging a 
subsequent removal if the same appellant filed both appeals.
* * * * *

0
17. In Sec.  1201.41, revise the first sentence of paragraph (b) as 
follows:


Sec.  1201.41  Judges.

* * * * *
    (b) Authority. Judges will conduct fair and impartial hearings and 
will issue timely and clear decisions based on statutes and legal 
precedents. * * *
* * * * *

0
18. In Sec.  1201.42, revise paragraph (a) to read as follows:


Sec.  1201.42  Disqualifying a Judge.

    (a) If a judge considers himself or herself disqualified, he or she 
will withdraw from the case, state on the record the reasons for doing 
so, and another judge will be promptly assigned.
* * * * *

0
19. In Sec.  1201.43, revise the introductory paragraph and add new 
paragraphs (d) and (e) to read as follows:


Sec.  1201.43  Sanctions.

    The judge may impose sanctions upon the parties as necessary to 
serve the ends of justice. This authority covers, but is not limited 
to, the circumstances set forth in paragraphs (a), (b), (c), (d), and 
(e) of this section. Before imposing a sanction, the judge shall 
provide appropriate prior warning, allow a response to the actual or 
proposed sanction when feasible, and document the reasons for any 
resulting sanction in the record.
* * * * *
    (d) Exclusion of a representative or other person. A judge may 
exclude or limit the participation of a representative or other person 
in the case for contumacious conduct or conduct prejudicial to the 
administration of justice. When the judge excludes a party's 
representative, the judge will afford the party a reasonable time to 
obtain another representative before proceeding with the case.
    (e) Cancellation, suspension, or termination of hearing. A judge 
may cancel a scheduled hearing, or suspend or terminate a hearing in 
progress, for contumacious conduct or conduct prejudicial to the 
administration of justice on the part of the appellant or the 
appellant's representative. If the judge suspends a hearing, the 
parties must be given notice as to when the hearing will resume. If the 
judge cancels or terminates a hearing, the judge must set a reasonable 
time during which the record will be kept open for receipt of written 
submissions.

0
20. In Sec.  1201.51, revise paragraph (d) to read as follows:


Sec.  1201.51  Scheduling the hearing.

* * * * *
    (d) The Board has established certain approved hearing locations, 
which are listed on the Board's public Web site (www.mspb.gov). The 
judge will advise parties of these hearing sites as appropriate. 
Parties, for good cause, may file motions requesting a different 
hearing location. Rulings on those motions will be based on a showing 
that a different location will be more advantageous to all parties and 
to the Board.

0
21. Revise Sec.  1201.52 to read as follows:


Sec.  1201.52  Public hearings.

    (a) Closing the hearing. Hearings are generally open to the public; 
however, the judge may order a hearing or any part of a hearing closed 
when doing so would be in the best interests of a party, a witness, the 
public, or any other person affected by the proceeding. Any order 
closing the hearing will set out the reasons for the judge's decision. 
Any objections to the order will be made a part of the record.
    (b) Electronic devices. Absent express approval from the judge, no 
two-way communications devices may be operated and/or powered on in the 
hearing room; all cell phones, text devices, and all other two-way 
communications devices shall be powered off in the hearing room. 
Further, no cameras, recording devices, and/or transmitting devices may 
be operated, operational, and/or powered on in the hearing room without 
the consent of the judge.

0
22. Revise Sec.  1201.53 to read as follows:


Sec.  1201.53  Record of proceedings.

    (a) Recordings. A recording of the hearing is generally prepared by 
a court reporter, under the judge's guidance. Such a recording is 
included with the Board's copy of the appeal file and serves as the 
official hearing record. Judges may prepare recordings in some 
hearings, such as those conducted telephonically.
    (b) Transcripts. A ``transcript'' refers not only to printed copies 
of the hearing testimony, but also to electronic versions of such 
documents. Along with recordings, a transcript prepared by the court 
reporter is accepted by the Board as the official hearing record. Any 
party may request that the court reporter prepare a full or partial 
transcript, at the requesting party's expense. Judges do not prepare 
transcripts.
    (c) Copies. Copies of recordings or existing transcripts will be 
provided upon request to parties free of charge. Such requests should 
be made in writing to the adjudicating regional or field office, or to 
the Clerk of the Board, as appropriate. Nonparties may request a copy 
of a hearing recording or existing transcript under the Freedom of 
Information Act (FOIA) and Part 1204 of the Board's regulations. A 
nonparty may request a copy by writing to the appropriate Regional 
Director, the Chief Administrative Judge of the appropriate MSPB Field 
Office, or to the Clerk of the Board at MSPB headquarters in 
Washington, DC, as appropriate. Nonparties may also make FOIA requests 
online at https://foia.mspb.gov.
    (d) Corrections to transcript. Any discrepancy between the 
transcript and the recording shall be resolved by the judge or the 
Clerk of the Board, as appropriate. Corrections to the official 
transcript may be made on motion by a party or on the judge's own 
motion or by the Clerk of the Board, as appropriate. Motions for 
corrections must be filed within 10 days after the receipt of a 
transcript. Corrections of the official transcript will be made only 
when substantive errors are found by the judge or by the Clerk of the 
Board, as appropriate.
    (e) Official record. Hearing exhibits and pleadings that have been 
accepted into the record, the official hearing record, if a hearing is 
held, and all orders and decisions of the judge and the Board, make up 
the official record of the case. Other than the Board's decisions, the 
official record is not available for public inspection and copying. The 
official record is, however, subject to requests under both the Freedom 
of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) 
pursuant to the procedures contained in 5 CFR parts 1204 and 1205.

0
23. In Sec.  1201.58, revise paragraph (c) and add paragraph (d) to 
read as follows:


Sec.  1201.58  Closing the record.

* * * * *
    (c) Once the record closes, additional evidence or argument will 
ordinarily not be accepted unless:
    (1) The party submitting it shows that the evidence or argument was 
not readily available before the record closed; or

[[Page 62367]]

    (2) It is in rebuttal to new evidence or argument submitted by the 
other party just before the record closed.
    (d) The judge will include in the record any supplemental citations 
received from the parties or approved corrections of the transcript, if 
one has been prepared.


Sec.  1201.62  [Removed]

0
24. Remove Sec.  1201.62.

0
25. Amend Sec.  1201.71 by adding two new sentences at the end of the 
section to read as follows:


Sec.  1201.71  Purpose of discovery.

    * * * Discovery requests and responses thereto are not to be filed 
in the first instance with the Board. They are only filed with the 
Board in connection with a motion to compel discovery under 1201.73(c) 
of this part, with a motion to subpoena discovery under 1201.73(d) of 
this part, or as substantive evidence to be considered in the appeal.

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


Sec.  1201.73  Discovery procedures.

    (a) Initiating discovery. A party seeking discovery must start the 
process by serving a request for discovery on the representative of the 
party or nonparty, or, if there is no representative, on the party or 
nonparty themselves. The request for discovery must state the time 
limit for responding, as prescribed in 1201.73(d) of this part, and 
must specify the time and place of the taking of the deposition, if 
applicable. When a party directs a request for discovery to the 
official 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.
    (b) Responses to discovery requests. A party or nonparty must 
answer a discovery request within the time provided under paragraph 
(d)(2) of this section, either by furnishing to the requesting party 
the information 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 
nonparties may respond to discovery requests by electronic mail if 
authorized by the requesting party.
    (c) Motions to compel or issue a subpoena. (1) If a party fails or 
refuses to respond in full to a discovery request, the requesting party 
may file a motion to compel discovery. If a nonparty fails or refuses 
to respond in full to a discovery request, the requesting party may 
file a motion for the issuance of a subpoena directed to the individual 
or entity from which the discovery is sought under the procedures 
described in 1201.81 of this part. The requesting party must serve a 
copy of the motion on the other party or nonparty. Before filing any 
motion to compel or issue a subpoena, the moving party shall discuss 
the anticipated motion with the opposing party or nonparty, and all 
those involved 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 discoverable under section 1201.72;
    (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 moving party has discussed or attempted 
to discuss the anticipated motion with the nonmoving party or nonparty 
and made a good faith effort to resolve the discovery dispute and 
narrow the areas of disagreement.
    (2) The party or nonparty from whom discovery was sought may 
respond to the motion to compel or the motion to issue a subpoena 
within the time limits stated in paragraph (d)(3) of this section.
    (d) Time limits. (1) Unless otherwise directed by the judge, 
parties must serve their initial discovery requests within 30 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 serve 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 by the judge. 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 for an order to compel or issue a subpoena 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 or subpoena discovery must be filed with the judge 
within 10 days of the date of service of the motion.
    (4) Discovery must be completed within the time period designated 
by the judge or, if no such period is designated, no later than the 
prehearing or close of record conference.
    (e) 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 
(e)(1) and (e)(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
27. In 1201.81, revise paragraph (c) to read as follows:


Sec.  1201.81  Requests for subpoenas.

* * * * *
    (c) Relevance. The request must be supported by a showing that the 
evidence sought is directly material to the issues involved in the 
appeal.
* * * * *

0
28. In Sec.  1201.93, revise paragraph (c) to read as follows:


Sec.  1201.93  Procedures.

* * * * *
    (c) Stay of Appeal. The judge has the authority to proceed with or 
to stay the processing of the appeal while an interlocutory appeal is 
pending with the Board. The passage of time during any stay granted 
under this section is not deemed, or accounted for, as a case 
suspension under Sec.  1201.28 of this part. If the judge does not stay 
the appeal, the Board may do so while an interlocutory appeal is 
pending with it.

0
29. In Sec.  1201.101, revise paragraph (b)(2) to read as follows:


Sec.  1201.101  Explanation and definitions.

* * * * *
    (b) * * *
    (2) Decision-making official means any judge, officer, or other 
employee of the Board designated to hear and decide cases except when 
such judge, officer, or other employee of the Board is serving as a 
mediator or settlement judge who is not the adjudicating judge.

0
30. In Sec.  1201.111, revise paragraph (a) to read as follows:

[[Page 62368]]

Sec.  1201.111  Initial decision by judge.

    (a) The judge will prepare an initial decision after the record 
closes and will serve that decision on all parties to the appeal, 
including named parties, permissive intervenors, and intervenors of 
right. The Board satisfies its legal obligation under 5 U.S.C. 
7701(b)(1) by making electronic copies of initial decisions available 
to the Office of Personnel Management.
* * * * *

0
31. In Sec.  1201.112, revise paragraph (a)(4) to read as follows:


Sec.  1201.112  Jurisdiction of judge.

    (a) * * *
    (4) Vacate an initial decision to accept into the record a 
settlement agreement that is filed prior to the deadline for filing a 
petition for review but is not received until after the date when the 
initial decision becomes final under 1201.113 of this part.
* * * * *

0
32. In Sec.  1201.113, revise the introductory text, paragraph (a) and 
add paragraph (f) to read as follows:


Sec.  1201.113  Finality of decision.

    The initial decision of the judge will become the Board's final 
decision 35 days after issuance. Initial decisions are not 
precedential.
    (a) Exceptions. The initial decision will not become the Board's 
final decision if within the time limit for filing specified in 
1201.114 of this part, any party files a petition for review or, if no 
petition for review is filed, files a request that the initial decision 
be vacated for the purpose of accepting a settlement agreement into the 
record.
* * * * *
    (f) When the Board, by final decision or order, finds there is 
reason to believe a current Federal employee may have committed a 
prohibited personnel practice described at 5 U.S.C. 2302(b)(8), the 
Board will refer the matter to the Special Counsel to investigate and 
take appropriate action under 5 U.S.C. 1215.
* * * * *

0
33. Revise Sec.  1201.114 as follows:


Sec.  1201.114  Petition and cross petition for review--content and 
procedure.

    (a) Pleadings allowed. Pleadings allowed on review include a 
petition for review, a cross petition for review, a response to a 
petition for review, a response to a cross petition for review, and a 
reply to a response to a petition for review.
    (1) A petition for review is a pleading in which a party contends 
that an initial decision was incorrectly decided in whole or in part.
    (2) A cross petition for review has the same meaning as a petition 
for review but is used to describe a pleading that is filed by a party 
when another party has already filed a timely petition for review.
    (3) A response to a petition for review and a cross petition for 
review may be contained in a single pleading.
    (4) A reply to a response to a petition for review is limited to 
the factual and legal issues raised by another party in the response to 
the petition for review. It may not raise new allegations of error.
    (5) No pleading other than the ones described in this paragraph 
will be accepted unless the party files a motion with and obtains leave 
from the Clerk of the Board. The motion must describe the nature of and 
need for the pleading.
    (b) Contents of petition or cross petition for review. A petition 
or cross petition for review states a party's objections to the initial 
decision, including all of the party's legal and factual arguments, and 
must be supported by references to applicable laws or regulations and 
by specific references to the record. Any petition or cross petition 
for review that contains new evidence or argument must include an 
explanation of why the evidence or argument was not presented before 
the record below closed (see Sec.  1201.58 of this part). A petition or 
cross petition for review should not include documents that were part 
of the record below, as the entire administrative record will be 
available to the Board.
    (c) Who may file. Any party to the proceeding, the Director of the 
Office of Personnel Management (OPM), or the Special Counsel (under 5 
U.S.C. 1212(c)) may file a petition or cross petition for review. The 
Director of OPM may request review only if he or she believes that the 
decision is erroneous and will have a substantial impact on any civil 
service law, rule, or regulation under OPM's jurisdiction. 5 U.S.C. 
7701(e)(2). All submissions to the Board must contain the signature of 
the party or of the party's designated representative.
    (d) Place for filing. All pleadings described in paragraph (a) and 
all motions and pleadings associated with them must be filed with the 
Clerk of the Merit Systems Protection Board, 1615 M Street NW., 
Washington, DC 20419, by commercial or personal delivery, by facsimile, 
by mail, or by electronic filing in accordance with 1201.14 of this 
part.
    (e) Time for filing. Any petition for review must be filed within 
35 days after the date of issuance of the initial decision or, if the 
petitioner shows that the initial decision was received more than 5 
days after the date of issuance, within 30 days after the date the 
petitioner received the initial decision. For purposes of this section, 
the date that the petitioner receives the initial decision is 
determined according to the standard set forth at Sec.  1201.22(b)(3) 
of this part, pertaining to an appellant's receipt of a final agency 
decision. If the petitioner is represented, the 30-day time period 
begins to run upon receipt of the initial decision by either the 
representative or the petitioner, whichever comes first. A cross 
petition for review must be filed within 25 days of the date of service 
of the petition for review. Any response to a petition or cross 
petition for review must be filed within 25 days after the date of 
service of the petition or cross petition. Any reply to a response to a 
petition for review must be filed within 10 days after the date of 
service of the response to the petition for review.
    (f) Extension of time to file. The Board will grant a motion for 
extension of time to file a pleading described in paragraph (a) only if 
the party submitting the motion shows good cause. Motions for 
extensions must be filed with the Clerk of the Board on or before the 
date on which the petition or other pleading is due. The Board, in its 
discretion, may grant or deny those motions without providing the other 
parties the opportunity to comment on them. A motion for an extension 
must be accompanied by an affidavit or sworn statement under 28 U.S.C. 
1746. (See Appendix IV.) The affidavit or sworn statement must include 
a specific and detailed description of the circumstances alleged to 
constitute good cause, and it should be accompanied by any available 
documentation or other evidence supporting the matters asserted.
    (g) Late filings. Any pleading described in paragraph (a) of this 
section that is filed late must be accompanied by a motion that shows 
good cause for the untimely filing, unless the Board has specifically 
granted an extension of time under paragraph (f) of this section, or 
unless a motion for extension is pending before the Board. The motion 
must be accompanied by an affidavit or sworn statement under 28 U.S.C. 
1746. (See Appendix IV.) The affidavit or sworn statement must include: 
The reasons for failing to request an extension before the deadline for 
the submission, and a specific and detailed description of the 
circumstances causing the late filing, accompanied by supporting 
documentation or other evidence. Any response to the motion may be 
included

[[Page 62369]]

in the response to the petition for review, the cross petition for 
review, or the response to the cross petition for review. The response 
will not extend the time provided by paragraph (e) of this section to 
file a cross petition for review or to respond to the petition or cross 
petition. In the absence of a motion, the Board may, in its discretion, 
determine on the basis of the existing record whether there was good 
cause for the untimely filing, or it may provide the party that 
submitted the document with an opportunity to show why it should not be 
dismissed or excluded as untimely.
    (h) Length limitations. A petition for review, a cross petition for 
review, or a response to a petition for review, whether computer 
generated, typed, or handwritten, is limited to 30 pages or 7500 words, 
whichever is less. A reply to a response to a petition for review is 
limited to 15 pages or 3750 words, whichever is less. Computer 
generated and typed pleadings must use no less than 12 point typeface 
and 1-inch margins and must be double spaced and only use one side of a 
page. The length limitation is exclusive of any table of contents, 
table of authorities, attachments, and certificate of service. A 
request for leave to file a pleading that exceeds the limitations 
prescribed in this paragraph must be received by the Clerk of the Board 
at least 3 days before the filing deadline. Such requests must give the 
reasons for a waiver as well as the desired length of the pleading and 
are granted only in exceptional circumstances. The page and word limits 
set forth above are maximum limits. Parties are not expected or 
required to submit pleadings of the maximum length. Typically, a well-
written petition for review is between 5 and 10 pages long.
    (i) Intervention. (1) By Director of OPM. The Director of OPM may 
intervene in a case before the Board under the standards stated in 5 
U.S.C. 7701(d). The notice of intervention is timely if it is filed 
with the Clerk of the Board within 45 days of the date the petition for 
review was filed. If the Director requests additional time for filing a 
brief on intervention, the Board may, in its discretion, grant the 
request. A party may file a response to the Director's brief within 15 
days of the date of service of that brief. The Director must serve the 
notice of intervention and the brief on all parties.
    (2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special 
Counsel may intervene as a matter of right, except as provided in 
paragraph (i)(2)(ii) of this section. The notice of intervention is 
timely filed if it is filed with the Clerk of the Board within 45 days 
of the date the petition for review was filed. If the Special Counsel 
requests additional time for filing a brief on intervention, the Board 
may, in its discretion, grant the request. A party may file a response 
to the Special Counsel's brief within 15 days of the date of service. 
The Special Counsel must serve the notice of intervention and the brief 
on all parties.
    (ii) The Special Counsel may not intervene in an action brought by 
an individual under 5 U.S.C. 1221, or in an appeal brought by an 
individual under 5 U.S.C. 7701, without the consent of that individual. 
The Special Counsel must present evidence that the individual has 
consented to the intervention at the time the motion to intervene is 
filed.
    (3) Permissive intervenors. Any person, organization, or agency, by 
motion made in a petition for review, may ask for permission to 
intervene. The motion must state in detail the reasons why the person, 
organization, or agency should be permitted to intervene. A motion for 
permission to intervene will be granted if the requester shows that he 
or she will be affected directly by the outcome of the proceeding. Any 
person alleged to have committed a prohibited personnel practice under 
5 U.S.C. 2302(b) may ask for permission to intervene.
    (j) Service. A party submitting a pleading must serve a copy of it 
on each party and on each representative, as required by paragraph 
(b)(2) of Sec.  1201.26.
    (k) Closing the record. The record closes on expiration of the 
period for filing the reply to the response to the petition for review 
or on expiration of the period for filing a response to the cross 
petition for review, whichever is later, or to the brief on 
intervention, if any, or on any other date the Board sets for this 
purpose. Once the record closes, no additional evidence or argument 
will be accepted unless the party submitting it shows that the evidence 
was not readily available before the record closed.
    (l) Rejection for failure to comply. The Clerk of the Board may 
reject material submitted for filing that does not substantially 
conform to the procedural requirements of this subpart by issuing a 
rejection letter advising the parties of the nature of the 
nonconformity and the requirements and deadline for resubmission. Any 
deadlines affected by the rejection will be addressed in the rejection 
letter.


0
34. Revise Sec.  1201.115 to read as follows:


Sec.  1201.115  Criteria for granting petition or cross petition for 
review.

    The Board normally will consider only issues raised in a timely 
filed petition or cross petition for review. Situations in which the 
Board may grant a petition or cross petition for review include, but 
are not limited to, a showing that:
    (a) The initial decision contains erroneous findings of material 
fact.
    (1) Any alleged factual error must be material, meaning of 
sufficient weight to warrant an outcome different from that of the 
initial decision.
    (2) A petitioner who alleges that the judge made erroneous findings 
of material fact must explain why the challenged factual determination 
is incorrect and identify specific evidence in the record that 
demonstrates the error. In reviewing a claim of an erroneous finding of 
fact, the Board will give deference to an administrative judge's 
credibility determinations when they are based, explicitly or 
implicitly, on the observation of the demeanor of witnesses testifying 
at a hearing.
    (b) The initial decision is based on an erroneous interpretation of 
statute or regulation or the erroneous application of the law to the 
facts of the case. The petitioner must explain how the error affected 
the outcome of the case.
    (c) The judge's rulings during either the course of the appeal or 
the initial decision were not consistent with required procedures or 
involved an abuse of discretion, and the resulting error affected the 
outcome of the case.
    (d) New and material evidence or legal argument is available that, 
despite the petitioner's due diligence, was not available when the 
record closed. To constitute new evidence, the information contained in 
the documents, not just the documents themselves, must have been 
unavailable despite due diligence when the record closed.
    (e) Notwithstanding the above provisions in this section, the Board 
reserves the authority to consider any issue in an appeal before it.


0
35. Revise Sec.  1201.116 to read as follows:


Sec.  1201.116  Compliance with orders for interim relief.

    (a) Certification of compliance. If the appellant was the 
prevailing party in the initial decision and the decision granted the 
appellant interim relief, any petition or cross petition for review 
filed by the agency must be accompanied by a certification that the 
agency has complied with the interim relief order either by providing 
the required interim

[[Page 62370]]

relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) 
and (B).
    (b) Challenge to certification. If the appellant challenges the 
agency's certification of compliance with the interim relief order, the 
Board will issue an order affording the agency the opportunity to 
submit evidence of its compliance. The appellant may respond to the 
agency's submission of evidence within 10 days after the date of 
service of the submission.
    (c) Allegation of noncompliance in petition or cross petition for 
review. If an appellant or an intervenor files a petition or cross 
petition for review of an initial decision ordering interim relief and 
such petition includes a challenge to the agency's compliance with the 
interim relief order, upon order of the Board the agency must submit 
evidence that it has provided the interim relief required or that it 
has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
    (d) Request for dismissal for noncompliance with interim relief 
order. If the agency files a petition or cross petition for review and 
has not provided the required interim relief, the appellant may request 
dismissal of the agency's petition. Any such request must be filed with 
the Clerk of the Board within 25 days of the date of service of the 
agency's petition. A copy of the response must be served on the agency 
at the same time it is filed with the Board. The agency may respond 
with evidence and argument to the appellant's request to dismiss within 
15 days of the date of service of the request. If the appellant files a 
motion to dismiss beyond the time limit, the Board will dismiss the 
motion as untimely unless the appellant shows that it is based on 
information not readily available before the close of the time limit.
    (e) Effect of failure to show compliance with interim relief order. 
Failure by an agency to provide the certification required by paragraph 
(a) of this section with its petition or cross petition for review, or 
to provide evidence of compliance in response to a Board order in 
accordance with paragraphs (b), (c), or (d) of this section, may result 
in the dismissal of the agency's petition or cross petition for review.
    (f) Back pay and attorney fees. Nothing in this section shall be 
construed to require any payment of back pay for the period preceding 
the date of the judge's initial decision or attorney fees before the 
decision of the Board becomes final.
    (g) Allegations of noncompliance after a final decision is issued. 
If the initial decision granted the appellant interim relief, but the 
appellant is not the prevailing party in the final Board order 
disposing of a petition for review, and the appellant believes that the 
agency has not provided full interim relief, the appellant may file an 
enforcement petition with the regional office under 1201.182 of this 
part. The appellant must file this petition within 20 days of learning 
of the agency's failure to provide full interim relief. If the 
appellant prevails in the final Board order disposing of a petition for 
review, then any interim relief enforcement motion filed will be 
treated as a motion for enforcement of the final decision. Petitions 
under this subsection will be processed under 1201.183 of this part.


0
36. In Sec.  1201.117, revise paragraph (a)(1) to read as follows:


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

    (a) * * *
    (1) Issue a decision that decides the case;
* * * * *

0
37. Revise Sec.  1201.118 to read as follows:


Sec.  1201.118  Board reopening of final decisions.

    Regardless of any other provision of this part, the Board may at 
any time reopen any appeal in which it has issued a final order or in 
which an initial decision has become the Board's final decision by 
operation of law. The Board will exercise its discretion to reopen an 
appeal only in unusual or extraordinary circumstances and generally 
within a short period of time after the decision becomes final.


Sec.  1201.119  [Amended]

0
38. In Sec.  1201.119(a), (b), and (d), remove the words ``final 
order'' and add, in their place, the words ``final decision''.


0
39. In Sec.  1201.122, revise paragraph (b) and remove paragraphs (d) 
and (e) to read as follows:


Sec.  1201.122  Filing complaint; serving documents on parties.

    (a) * * *
    (b) Initial filing and service. The Special Counsel must file a 
copy of the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing each party or 
the party's representative. The certificate of service must show the 
last known address, telephone number, and facsimile number of each 
party or representative. The Special Counsel must serve a copy of the 
complaint on each party and the party's representative, as shown on the 
certificate of service.
* * * * *

0
40. In Sec.  1201.128, revise paragraph (b) and remove paragraphs (d) 
and (e) to read as follows:


Sec.  1201.128  Filing complaint; serving documents on parties.

* * * * *
    (b) Initial filing and service. The Special Counsel must file a 
copy of the complaint, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative, and each person on 
whose behalf the corrective action is brought.
* * * * *

0
41. In Sec.  1201.134, revise paragraph (d) and remove paragraphs (f) 
and (g) to read as follows:


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

* * * * *
    (d) Initial filing and service. The Special Counsel must file a 
copy of the request, together with numbered and tabbed exhibits or 
attachments, if any, and a certificate of service listing the 
respondent agency or the agency's representative. The certificate of 
service must show the last known address, telephone number, and 
facsimile number of the agency or its representative. The Special 
Counsel must serve a copy of the request on the agency or its 
representative, as shown on the certificate of service.
* * * * *

0
42. In Sec.  1201.137, revise paragraph (c) and remove paragraphs (e) 
and (f) to read as follows:


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

* * * * *
    (c) Initial filing and service. The agency must file a copy of the 
complaint, together with numbered and tabbed exhibits or attachments, 
if any, and a certificate of service listing each party or the party's 
representative. The certificate of service must show the last known 
address, telephone number, and facsimile number of each party or 
representative. The agency must serve a copy of the complaint on each 
party and the party's representative, as shown on the certificate of 
service.
* * * * *

0
43. Revise Sec.  1201.142 to read as follows:

[[Page 62371]]

Sec.  1201.142  Actions filed by administrative law judges.

    An administrative law judge who alleges a constructive removal or 
other action by an agency in violation of 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart. The filing and service 
requirements of Sec.  1201.137 of this part apply. Such complaints 
shall be adjudicated in the same manner as agency complaints under this 
subpart.


0
44. In Sec.  1201.143, revise paragraph (c) and remove paragraphs (e) 
and (f) to read as follows:


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

* * * * *
    (c) Initial filing and service. Except when filed electronically 
under 1201.14, the appointee must file two copies of the request, 
together with numbered and tabbed exhibits or attachments, if any, and 
a certificate of service listing the agency proposing the appointee's 
removal or the agency's representative. The certificate of service must 
show the last known address, telephone number, and facsimile number of 
the agency or its representative. The appointee must serve a copy of 
the request on the agency or its representative, as shown on the 
certificate of service.
* * * * *

0
45. In Sec.  1201.153, revise paragraph (a)(2) to read as follows:


Sec.  1201.153  Contents of appeal.

    (a) * * *
    (2) The appeal must state whether the appellant has filed a 
grievance under a negotiated grievance procedure or a formal 
discrimination complaint with any agency regarding the matter being 
appealed to the Board. If he or she has done so, the appeal must state 
the date on which the appellant filed the complaint or grievance, and 
it must describe any action that the agency took in response to the 
complaint or grievance.
* * * * *

0
46. In Sec.  1201.154, revise the section heading and introductory 
paragraph, and remove paragraph (d) and (e) to read as follows:


Sec.  1201.154  Time for filing appeal.

    For purposes of this section, the date an appellant receives the 
agency's decision is determined according to the standard set forth at 
1201.22(b)(3) of this part. Appellants who file appeals raising issues 
of prohibited discrimination in connection with a matter otherwise 
appealable to the Board must comply with the following time limits:
* * * * *

0
47. Revise Sec.  1201.155 to read as follows:


Sec.  1201.155  Requests for review of arbitrators' decisions.

    (a) Source and applicability. (1) Under paragraph (d) of 5 U.S.C. 
7121, an employee who believes he or she has been subjected to 
discrimination within the meaning of 5 U.S.C. 2302(b)(1), and who may 
raise the matter under either a statutory procedure such as 5 U.S.C. 
7701 or under a negotiated grievance procedure, must make an election 
between the two procedures. The election of the negotiated grievance 
procedure ``in no manner prejudices'' the employee's right to request 
Board review of the final decision pursuant to 5 U.S.C. 7702. 
Subsection (a)(1) of section 7702 provides that, ``[n]otwithstanding 
any other provision of law,'' when an employee who has been subjected 
to an action that is appealable to the Board and who alleges that the 
action was the result of discrimination within the meaning of 5 U.S.C. 
2302(b)(1), the Board will decide both the issue of discrimination and 
the appealable action in accordance with the Board's appellate 
procedures under section 7701.
    (2) This section does not apply to employees of the Postal Service 
or to other employees excluded from the coverage of the Federal labor 
management laws at chapter 71 of title 5, United States Code.
    (b) When filed. The appellant's request for Board review must be 
filed within 35 days after the date of issuance of the decision or, if 
the appellant shows that he or she received the decision more than 5 
days after the date of issuance, within 30 days after the date the 
appellant received the decision.
    (c) Scope of Board Review. If the negotiated grievance procedure 
permits allegations of discrimination, the Board will review only those 
claims of discrimination that were raised in the negotiated grievance 
procedure. If the negotiated grievance procedure does not permit 
allegations of discrimination to be raised, the appellant may raise 
such claims before the Board.
    (d) Contents. The appellant must file the request with the Clerk of 
the Board, Merit Systems Protection Board, 1615 M Street NW., 
Washington, DC 20419. The request for review must contain:
    (1) A statement of the grounds on which review is requested;
    (2) References to evidence of record or rulings related to the 
issues before the Board;
    (3) Arguments in support of the stated grounds that refer 
specifically to relevant documents and that include relevant citations 
of authority; and
    (4) Legible copies of the final grievance or arbitration decision, 
the agency decision to take the action, and other relevant documents. 
Those documents may include a transcript or recording of the hearing.
    (e) Development of the Record. The Board, in its discretion, may 
develop the record as to a claim of prohibited discrimination by 
ordering the parties to submit additional evidence or forwarding the 
request for review to a judge to conduct a hearing.
    (f) Closing of the Record. The record will close upon expiration of 
the period for filing the response to the request for review, or to the 
brief on intervention, if any, or on any other date the Board sets for 
this purpose. Once the record closes, no additional evidence or 
argument will be accepted unless the party submitting it shows that the 
evidence was not readily available before the record closed.


0
48. Revise Sec.  1201.181 to read as follows:


Sec.  1201.181  Authority and explanation.

    (a) Authority. Under 5 U.S.C. 1204(a)(2), the Board has the 
authority to order any Federal agency or employee to comply with 
decisions and orders issued under its jurisdiction and the authority to 
enforce compliance with its orders and decisions. The Board's decisions 
and orders, when appropriate, will contain a notice of the Board's 
enforcement authority.
    (b) Requirements for parties. The parties are expected to cooperate 
fully with each other so that compliance with the Board's orders and 
decisions can be accomplished promptly and in accordance with the laws, 
rules, and regulations that apply to individual cases. Agencies must 
promptly inform an appellant of actions taken to comply and must inform 
the appellant when it believes compliance is complete. Appellants must 
provide agencies with all information necessary for compliance and 
should monitor the agency's progress towards compliance.


0
49. In Sec.  1201.182, revise paragraphs (a) and (b) as follows:


Sec.  1201.182  Petition for enforcement.

    (a) Appellate jurisdiction. Any party may petition the Board for 
enforcement of a final decision or order issued under the Board's 
appellate jurisdiction, or for enforcement of the terms of a settlement 
agreement that has been entered into the record for the purpose of 
enforcement in an order or decision under the Board's appellate 
jurisdiction. The petition must

[[Page 62372]]

be filed promptly with the regional or field office that issued the 
initial decision; a copy of it must be served on the other party or 
that party's representative; and it must describe specifically the 
reasons the petitioning party believes there is noncompliance. The 
petition also must include the date and results of any communications 
regarding compliance. Any petition for enforcement that is filed more 
than 30 days after the date of service of the agency's notice that it 
has complied must contain a statement and evidence showing good cause 
for the delay and a request for an extension of time for filing the 
petition.
    (b) Original jurisdiction. Any party seeking enforcement of a final 
Board decision or order issued under its original jurisdiction or 
enforcement of the terms of settlement agreement entered into the 
record for the purpose of enforcement in an order or decision issued 
under its original jurisdiction must file a petition for enforcement 
with the Clerk of the Board and must serve a copy of that petition on 
the other party or that party's representative. The petition must 
describe specifically the reasons why the petitioning party believes 
there is noncompliance.
* * * * *

0
50. In Sec.  1201.183, revise paragraphs (a)(2), (a)(5) through (a)(7), 
(b), (c), (d), and add paragraphs (a)(8), (e), and (f) as follows:


Sec.  1201.183  Procedures for processing petitions for enforcement.

    (a) * * *
    (2) If the agency is the alleged noncomplying party, it shall 
submit the name, title, grade, and address of the agency official 
charged with complying with the Board's order, and inform such official 
in writing of the potential sanction for noncompliance as set forth in 
5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts it has 
fully complied. The agency must advise the Board of any change to the 
identity or location of this official during the pendency of any 
compliance proceeding. In the absence of this information, the Board 
will presume that the highest ranking appropriate agency official who 
is not appointed by the President by and with the consent of the Senate 
is charged with compliance.
* * * * *
    (5) If the judge finds that the alleged noncomplying party has not 
taken all actions required to be in full compliance with the final 
decision, the judge will issue an initial decision resolving all issues 
raised in the petition for enforcement and identifying the specific 
actions the noncomplying party must take to be in compliance with the 
Board's final decision. A copy of the initial decision will be served 
on the responsible agency official.
    (6) If an initial decision described under paragraph (a)(5) of this 
section is issued, the party found to be in noncompliance must do the 
following:
    (i) To the extent that the party decides to take the actions 
required by the initial decision, the party must submit to the Clerk of 
the Board, within the time limit for filing a petition for review under 
Sec.  1201.114(e) of this part, a statement that the party has taken 
the actions identified in the initial decision, along with evidence 
establishing that the party has taken those actions. The narrative 
statement must explain in detail why the evidence of compliance 
satisfies the requirements set forth in the initial decision.
    (ii) To the extent that the party decides not to take all of the 
actions required by the initial decision, the party must file a 
petition for review under the provisions of Sec. Sec.  1201.114 and 
1201.115 of this part.
    (iii) The responses required by the preceding two paragraphs may be 
filed separately or as a single pleading.
    (7) If the agency is the party found to be in noncompliance, it 
must advise the Board, as part of any submission under this paragraph, 
of any change in the identity or location of the official responsible 
for compliance previously provided pursuant to paragraph (a)(2) of this 
section.
    (8) The complying party may file evidence and argument in response 
to any submission described in paragraph (a)(6) of this section by 
filing opposing evidence and argument with the Clerk of the Board 
within 20 days of the date such submission is filed.
    (b) Final Decision of noncompliance. If a party found to be in 
noncompliance under paragraph (a)(5) of this section does not file a 
timely pleading with the Clerk of the Board as required by paragraph 
(a)(6) of this section, the findings of noncompliance become final and 
the case will be processed under the enforcement provisions of 
paragraph (c)(1) of this section.
    (c) Consideration by the Board. (1) Following review of the initial 
decision and the written submissions of the parties, the Board will 
render a final decision on the issues of compliance. Upon finding that 
the agency is in noncompliance, the Board may, when appropriate, 
require the agency and the responsible agency official to appear before 
the Board to show why sanctions should not be imposed under 5 U.S.C. 
1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and 
the responsible agency official to make this showing in writing, or to 
make it both personally and in writing. The responsible agency official 
has the right to respond in writing or to appear at any argument 
concerning the withholding of that official's pay.
    (2) The Board's final decision on the issues of compliance is 
subject to judicial review under 1201.120 of this part.
    (3) The Board's final decision on the issues of compliance is 
subject to judicial review under Sec.  1201.120 of this part.
    (d) Burdens of proof. If an appellant files a petition for 
enforcement seeking compliance with a Board order, the agency generally 
has the burden to prove its compliance with the Board order by a 
preponderance of the evidence. However, if any party files a petition 
for enforcement seeking compliance with the terms of a settlement 
agreement, that party has the burden of proving the other party's 
breach of the settlement agreement by a preponderance of the evidence.
    (e) Certification to the Comptroller General. When appropriate, the 
Board may certify to the Comptroller General of the United States, 
under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a 
certain Federal employee. This order may apply to any Federal employee, 
other than a Presidential appointee subject to confirmation by the 
Senate, who is found to be in noncompliance with the Board's order.
    (f) Effect of Special Counsel's action or failure to act. Failure 
by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) 
and subpart D of this part will not preclude the Board from taking 
action under this subpart.

0
51. Revise the heading of Subpart H of part 1201 to read as follows:

Subpart H--Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable) and Damages (Consequential, 
Liquidated, and Compensatory)

* * * * *

0
52. In Sec.  1201.201, revise paragraph (a) and add a new paragraph (e) 
as follows:


Sec.  1201.201  Statement of purpose.

    (a) This subpart governs Board proceedings for awards of attorney 
fees (plus costs, expert witness fees, and litigation expenses, where 
applicable), consequential damages, compensatory damages, and 
liquidated damages.
* * * * *

[[Page 62373]]

    (e) An award equal to back pay shall be awarded as liquidated 
damages under 5 U.S.C. 3330c when the Board or a court determines an 
agency willfully violated an appellant's veterans' preference rights.

0
53. In Sec.  1201.202, redesignate paragraph (d) as paragraph (e), and 
add new paragraph (d) to read as follows:


Sec.  1201.202  Authority for awards.

* * * * *
    (d) Awards of liquidated damages. The Board may award an amount 
equal to back pay as liquidated damages under 5 U.S.C. 3330c when it 
determines that an agency willfully violated an appellant's veterans' 
preference rights.
* * * * *

0
54. In Sec.  1201.204:
0
a. Remove the words ``consequential damages or compensatory damages'' 
wherever they appear, and add in their place, the words 
``consequential, liquidated, or compensatory damages'', and;
0
b. Revise paragraph (h) introductory text to read as follows:


Sec.  1201.204  Proceedings for consequential, liquidated, and 
compensatory damages.

* * * * *
    (h) Request for damages first made in proceeding before the Board. 
Where a request for consequential, liquidated, or compensatory damages 
is first made on petition for review of a judge's initial decision on 
the merits and the Board waives the time limit for making the request 
in accordance with paragraph (a)(2) of this section, or where the 
request is made in a case where the only MSPB proceeding is before the 
Board, including, for compensatory damages only, a request to review an 
arbitration decision under 5 U.S.C. 7121(d), the Board may:
* * * * *

Appendix III to Part 1201 [Removed and Reserved]

0
56. Remove and reserve Appendix III to Part 1201.

PART 1203--PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE 
OFFICE OF PERSONNEL MANAGEMENT

0
57. The authority citation for 5 CFR part 1203 continues to read as 
follows:

    Authority: 5 U.S.C. 1204(a), 1204(f), and 1204(h).


0
58. In Sec.  1203.2, revise paragraph (e) to read as follows:


Sec.  1203.2  Definitions.

* * * * *
    (e) Prohibited personnel practices are the impermissible actions 
described in 5 U.S.C. 2302(b)(1) through 2302(b)(12).
* * * * *

PART 1208--PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED 
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS 
EMPLOYMENT OPPORTUNITIES ACT

0
59. The authority citation for 5 CFR part 1208 continues to read as 
follows:

    Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.


0
60. Revise Sec.  1208.3 to read as follows:


Sec.  1208.3  Application of 5 CFR part 1201.

    Except as expressly provided in this part, the Board will apply 
subparts A (Jurisdiction and Definitions), B (Procedures for Appellate 
Cases), C (Petitions for Review of Initial Decisions), and F 
(Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to 
appeals governed by this part. The Board will apply the provisions of 
subpart H (Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable) and Damages (Consequential, 
Liquidated, and Compensatory)) of 5 CFR part 1201 regarding awards of 
attorney fees and liquidated damages to appeals governed by this part.

0
61. Revise Sec.  1208.21 to read as follows:


Sec.  1208.21  VEOA exhaustion requirement.

    (a) General rule. Before an appellant may file a VEOA appeal with 
the Board, the appellant must first file a complaint under 5 U.S.C. 
3330a(a) with the Secretary of Labor within 60 days after the date of 
the alleged violation. In addition, either the Secretary must have sent 
the appellant written notification that efforts to resolve the 
complaint were unsuccessful or, if the Secretary has not issued such 
notification and at least 60 days have elapsed from the date the 
complaint was filed, the appellant must have provided written 
notification to the Secretary of the appellant's intention to file an 
appeal with the Board.
    (b) Equitable tolling; extension of filing deadline. In 
extraordinary circumstances, the appellant's 60-day deadline for filing 
a complaint with the Secretary is subject to the doctrine of equitable 
tolling, which permits the Board to extend the deadline where the 
appellant, despite having diligently pursued his or her rights, was 
unable to make a timely filing. Examples include cases involving 
deception or in which the appellant filed a defective pleading during 
the statutory period.

0
62. In Sec.  1208.22, add a new paragraph (c) to read as follows:


Sec.  1208.22  Time of filing.

* * * * *
    (c) Equitable tolling; extension of filing deadline. In 
extraordinary circumstances, the appellant's 60-day deadline for filing 
an appeal with the MSPB is subject to the doctrine of equitable 
tolling, which permits the Board to extend the deadline where the 
appellant, despite having diligently pursued his or her rights, was 
unable to make a timely filing. Examples include cases involving 
deception or in which the appellant filed a defective pleading during 
the statutory period.

0
63. In Sec.  1208.23, revise paragraphs (a)(5) and (a)(6) to read as 
follows:


Sec.  1208.23  Content of a VEOA appeal; request for hearing.

    (a) * * *
    (5) Evidence identifying the specific veterans' preference claims 
that the appellant raised before the Secretary; and
    (6)(i) Evidence that the Secretary has notified the appellant in 
accordance with 5 U.S.C. 3330a(c)(2) that the Secretary's efforts have 
not resolved the complaint (a copy of the Secretary's notice satisfies 
this requirement); or
    (ii) Evidence that the appellant has provided written notice to the 
Secretary of the appellant's intent to appeal to the Board, as required 
by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to 
the Secretary satisfies this requirement).
* * * * *

PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS 
OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING

0
64. The authority citation for 5 CFR part 1208 continues to read as 
follows:

    Authority:  5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.


0
65. Revise Sec.  1209.2 to read as follows:


Sec.  1209.2  Jurisdiction.

    (a) Under 5 U.S.C. 1221(a), an employee, former employee, or 
applicant for employment may appeal to the Board from agency personnel 
actions alleged to have been threatened, proposed, taken, or not taken 
because of the appellant's whistleblowing activities.
    (b) The Board exercises jurisdiction over:

[[Page 62374]]

    (1) Individual right of action (IRA) appeals. These are authorized 
by 5 U.S.C. 1221(a) with respect to personnel actions listed in 
1209.4(a) of this part that are allegedly threatened, proposed, taken, 
or not taken because of the appellant's whistleblowing activities. If 
the action is not otherwise directly appealable to the Board, the 
appellant must seek corrective action from the Special Counsel before 
appealing to the Board.

    Example 1:  Agency A gives Mr. X a performance evaluation under 
5 U.S.C. chapter 43 that rates him as ``minimally satisfactory.'' 
Mr. X believes that the agency has rated him ``minimally 
satisfactory'' because he reported that his supervisor embezzled 
public funds in violation of Federal law and regulation. Because a 
performance evaluation is not an otherwise appealable action, Mr. X 
must seek corrective action from the Special Counsel before 
appealing to the Board or before seeking a stay of the evaluation. 
If Mr. X appeals the evaluation to the Board after the Special 
Counsel proceeding is terminated or exhausted, his appeal is an IRA 
appeal.
    Example 2: As above, Agency A gives Mr. X a performance 
evaluation under 5 U.S.C. chapter 43 that rates him as ``minimally 
satisfactory.'' Mr. X believes that the agency has rated him 
``minimally satisfactory'' because he previously filed a Board 
appeal of the agency's action suspending him without pay for 15 days 
and because he testified on behalf of a co-worker in an EEO 
proceeding. The Board would not have jurisdiction over the 
performance evaluation as an IRA appeal because the appellant has 
not made an allegation of a violation of 5 U.S.C. 2302(b)(8), i.e., 
a claim of retaliation for a protected whistleblowing disclosure. 
Retaliation for filing a Board appeal would constitute a different 
prohibited personnel practice, 5 U.S.C. 2302(b)(9), retaliation for 
having exercised an appeal, complaint, or grievance right granted by 
any law, rule, or regulation. Similarly, retaliation for protected 
EEO activity is a prohibited personnel practice under subsection 
(b)(9), not under subsection (b)(8).
    Example 3: Citing alleged misconduct, an agency proposes 
Employee Y's removal. While that removal action is pending, Y files 
a complaint with OSC alleging that the proposed removal was 
initiated in retaliation for her having disclosed that an agency 
official embezzled public funds in violation of Federal law and 
regulation. OSC subsequently issues a letter notifying Y that it has 
terminated its investigation of the alleged retaliation with respect 
to the proposed removal. Employee Y may file an IRA appeal with 
respect to the proposed removal.

    (2) Otherwise appealable action appeals. These are appeals to the 
Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) 
that include an allegation that the action was based on the appellant's 
whistleblowing activities. (Examples of such otherwise appealable 
actions are listed in 5 CFR 1201.3(a).) An individual who has been 
subjected to an otherwise appealable action must make an election of 
remedies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of 
this section.

    Example 4: Same as Example 3 above. While the OSC complaint with 
respect to the proposed removal is pending, the agency effects the 
removal action. OSC subsequently issues a letter notifying Y that it 
has terminated its investigation of the alleged retaliation with 
respect to the proposed removal. With respect to the effected 
removal, Employee Y can elect to appeal that action directly to the 
Board or to proceed with a complaint to OSC. If she chooses the 
latter option, she may file an IRA appeal when OSC has terminated 
its investigation, but the only issue that will be adjudicated in 
that appeal is whether she proves that her protected disclosure was 
a contributing factor in the removal action and, if so, whether the 
agency can prove by clear and convincing evidence that it would have 
removed Y in the absence of the protected disclosure. If she instead 
files a direct appeal, the agency must prove its misconduct charges, 
nexus, and the reasonableness of the penalty, and Y can raise any 
affirmative defenses she might have.

    (c) Issues before the Board in IRA appeals. In an individual right 
of action appeal, the only merits issues before the Board are those 
listed in 5 U.S.C. 1221(e), i.e., whether the appellant has 
demonstrated that one or more whistleblowing disclosures was a 
contributing factor in one or more covered personnel actions and, if 
so, whether the agency has demonstrated by clear and convincing 
evidence that it would have taken the same personnel action(s) in the 
absence of the protected disclosure(s). The appellant may not raise 
affirmative defenses other than reprisal for whistleblowing activities, 
such as claims of discrimination or harmful procedural error. In an IRA 
appeal that concerns an adverse action under 5 U.S.C. 7512, the agency 
need not prove its charges, nexus, or the reasonableness of the 
penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action 
is taken ``only for such cause as will promote the efficiency of the 
service.'' However, the Board may consider the strength of the agency's 
evidence in support of its adverse action in determining whether the 
agency has demonstrated by clear and convincing evidence that it would 
have taken the same personnel action in the absence of the protected 
disclosure(s).
    (d) Elections under 5 U.S.C. 7121(g).
    (1) Under 5 U.S.C. 7121(g)(3), an employee who believes he or she 
was subjected to a covered personnel action in retaliation for 
protected whistleblowing ``may elect not more than one'' of 3 remedies: 
An appeal to the Board under 5 U.S.C. 7701; a negotiated grievance 
under 5 U.S.C. 7121(d); or corrective action under subchapters II and 
III of 5 U.S.C. chapter 12, i.e., a complaint filed with the Special 
Counsel (5 U.S.C. 1214), which can be followed by an IRA appeal filed 
with the Board (5 U.S.C. 1221). Under 5 U.S.C. 7121(g)(4), an election 
is deemed to have been made based on which of the 3 actions the 
individual files first.
    (2) In the case of an otherwise appealable action as described in 
paragraph (b)(2) of this section, an employee who files a complaint 
with OSC prior to filing an appeal with the Board has elected 
corrective action under subchapters II and III of 5 U.S.C. chapter 12, 
i.e., a complaint filed with OSC, which can be followed by an IRA 
appeal with the Board. As described in paragraph (c) of this section, 
the IRA appeal in such a case is limited to resolving the claim(s) of 
reprisal for whistleblowing activities.

0
66. In Sec.  1209.4, revise paragraph (b) as follows:


Sec.  1209.4  Definitions.

* * * * *
    (b) Whistleblowing is the making of a protected disclosure, that 
is, a disclosure of information by an employee, former employee, or 
applicant that the individual reasonably believes evidences a violation 
of law, rule, or regulation, gross mismanagement, gross waste of funds, 
abuse of authority, or substantial and specific danger to public health 
or safety. It does not include a disclosure that is specifically 
prohibited by law or required by Executive order to be kept secret in 
the interest of national defense or foreign affairs, unless such 
information is disclosed to the Special Counsel, the Inspector General 
of an agency, or an employee designated by the head of the agency to 
receive it.
* * * * *

0
67. In Sec.  1209.5, revise paragraphs (a) and (b) as follows:


Sec.  1209.5  Time of filing.

    (a) General rule. The appellant must seek corrective action from 
the Special Counsel before appealing to the Board unless the action 
being appealed is otherwise appealable directly to the Board and the 
appellant has elected a direct appeal. (See Sec.  1209.2(d) regarding 
election of remedies under 5 U.S.C. 7121(g)). Where the appellant has 
sought corrective action, the time limit for filing an appeal with the 
Board is

[[Page 62375]]

governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be 
filed:
    (1) No later than 65 days after the date of issuance of the Special 
Counsel's written notification to the appellant that it was terminating 
its investigation of the appellant's allegations or, if the appellant 
shows that the Special Counsel's notification was received more than 5 
days after the date of issuance, within 60 days after the date the 
appellant received the Special Counsel's notification; or,
    (2) At any time after the expiration of 120 days, if the Special 
Counsel has not notified the appellant that it will seek corrective 
action on the appellant's behalf within 120 days of the date of filing 
of the request for corrective action.
    (b) Equitable tolling; extension of filing deadline. The 
appellant's deadline for filing an individual right of action appeal 
with the Board after receiving written notification from the Special 
Counsel that it is terminating its investigation of his or her 
allegations is subject to the doctrine of equitable tolling, which 
permits the Board to extend the deadline where the appellant, despite 
having diligently pursued his or her rights, was unable to make a 
timely filing. Examples include cases involving deception or in which 
the appellant filed a defective pleading during the statutory period.
* * * * *

0
68. In Sec.  1209.6, revise paragraph (b) to read as follows:


Sec.  1209.6  Content of appeal; right to hearing.

* * * * *
    (b) Right to hearing. An appellant generally has a right to a 
hearing if the appeal has been timely filed and the Board has 
jurisdiction over the appeal.
* * * * *

William D. Spencer,
Clerk of the Board.
[FR Doc. 2012-24130 Filed 10-11-12; 8:45 am]
BILLING CODE 7400-01-P