[Federal Register Volume 79, Number 160 (Tuesday, August 19, 2014)]
[Rules and Regulations]
[Pages 48941-48946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-19589]



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  Federal Register / Vol. 79, No. 160 / Tuesday, August 19, 2014 / 
Rules and Regulations  

[[Page 48941]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1210


Practices and Procedures; Appeal of Removal or Transfer of Senior 
Executive Service Employees of the Department of Veterans Affairs

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) hereby 
amends its rules of practice and procedure to adapt the Board's 
regulations to legislative changes that have created new laws 
applicable to the removal or transfer of Senior Executive Service 
employees of the Department of Veterans Affairs.

DATES: This interim final rule is effective on August 19, 2014. Submit 
written comments concerning this interim final rule on or before 
September 18, 2014.

ADDRESSES: Submit your comments concerning this interim final rule by 
one of the following methods and in accordance with the relevant 
instructions:
    Email: [email protected]. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments concerning the MSPB's 
interim final rule. The MSPB asks that parties use email to submit 
comments if possible. Submission of comments by email will assist MSPB 
to process comments and speed publication of a final rule.
    Fax: (202) 653-7130. Faxes should be addressed to William D. 
Spencer and contain a subject line indicating that the submission 
contains comments concerning the MSPB's interim final rule.
    Mail or other commercial delivery: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington DC 
20419.
    Hand delivery or courier: Should be addressed to William D. 
Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW., Washington, DC 20419, and delivered to the 5th floor 
reception window at this street address. Such deliveries are only 
accepted Monday through Friday, 9 a.m. to 4:30 p.m. Eastern Time, 
excluding Federal holidays.
    Instructions: As noted above, MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
included in the public docket without change and will be made available 
online at the Board's Web site, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information or other information whose disclosure 
is restricted by law. Those desiring to submit anonymous comments must 
submit them in a manner that does not reveal the commenter's identity, 
include a statement that the comment is being submitted anonymously, 
and include no personally-identifiable information. The email address 
of a commenter who chooses to submit comments using email will not be 
disclosed unless it appears in comments attached to an email or in the 
body of a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    This interim final rule is necessary to adapt the MSPB's 
regulations to recent amendments to Federal law contained in section 
707 of the Veterans' Access to Care through Choice, Accountability, and 
Transparency Act of 2014, Public Law 113-146 (the Act). The Act was 
signed by the President on August 7, 2014, and took effect on that same 
date.

Summary of Section 707 of the Act

    The sole provision of the Act relevant to this interim final rule 
is section 707. Paragraph (a) of section 707 of the Act creates a new 
statute, 38 U.S.C. 713, which sets forth new rules for the removal or 
transfer of Senior Executive Service employees of the Department of 
Veterans Affairs (covered SES employees) for performance or misconduct 
and requires expedited review of such actions by the MSPB. Under 38 
U.S.C. 713(a), the Secretary of the Department of Veterans Affairs may 
remove or transfer a covered SES employee if the Secretary determines 
that the covered employee's performance or misconduct warrants such 
action. Covered employees have a right to appeal a removal or transfer 
to the MSPB pursuant to 38 U.S.C. 713(d)(2)(A) and 5 U.S.C. 7701. Such 
an appeal must be filed with the MSPB within 7 days after the date of 
the removal or transfer. 38 U.S.C. 713(d)(2)(B). Review of the removal 
or transfer must be undertaken by an MSPB administrative judge, and a 
decision must be issued by the MSPB administrative judge within 21 days 
after the appeal is filed. 38 U.S.C. 713(e). If a decision is not 
issued within 21 days, the Secretary's decision is final. 38 U.S.C. 
713(e)(3). An administrative judge's decision shall not be subject to 
further appeal. 38 U.S.C. 713(e)(2).
    Paragraph (b) of section 707 of the Act requires the MSPB to 
develop and to put into effect expedited procedures for processing 
appeals filed pursuant to 38 U.S.C. 713 within 14 days of passage of 
the Act, specifies that 5 CFR 1201.22 is not applicable to appeals 
filed under 38 U.S.C. 713, and authorizes the MSPB to waive any other 
regulation to provide the expedited review required under 38 U.S.C. 
713. Paragraph (b) also requires the MSPB to submit a report to 
Congress within 14 days that addresses the steps the Board is taking to 
conduct the expedited review required under the Act. The report must 
also identify any additional resources the Board determines to be 
necessary to complete expedited reviews.
    The MSPB currently plays an important role in protecting the rights 
of our nation's veterans by adjudicating appeals filed under the 
Veterans Employment Opportunities Act and the Uniformed Services 
Employment and Reemployment Rights Act. In addition,

[[Page 48942]]

the Board Members and MSPB employees, including a significant number of 
veterans, support any comprehensive legislation that improves 
conditions for our nation's veterans. Nevertheless, the MSPB has 
concerns regarding the constitutionality of section 707 of the Act. 
Specifically, the MSPB questions the constitutionality of any provision 
of law that prohibits presidentially-appointed, Senate-confirmed 
Officers of the United States Government from carrying out the mission 
of the agency to which they were appointed and confirmed to lead.

Justification for Interim Final Rule Effective Immediately

    Ordinarily, the Administrative Procedure Act (APA) requires an 
agency to provide notice of proposed rulemaking and a period of public 
comment before the promulgation of a new regulation. 5 U.S.C. 553(b) 
and (c). However, section 553(b) of the APA specifically provides that 
the notice and comment requirements do not apply:
    (A) To interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice; or
    (B) when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. The APA also requires 
the publication of any substantive rule at least 30 days before its 
effective date, 5 U.S.C. 553(d), except where the rule is interpretive, 
where the rule grants an exception or relieves a restriction, or ``as 
otherwise provided by the agency for good cause found and published 
with the rule.'' Id.
    A finding that notice and comment rulemaking is unnecessary must be 
``confined to those situations in which the administrative rule is a 
routine determination, insignificant in nature and impact, and 
inconsequential to the industry and to the public.'' Mack Trucks, Inc. 
v. Envtl. Prot. Agency, 682 F.3d 87, 94 (D.C. Cir. 2012). The Board 
finds that publication of this interim final rule effective upon 
publication is warranted for several reasons. The procedures created in 
Part 1210 reflect changes that have already been enacted into law by 
the Act. Komjathy v. National Transp. Safety Bd., 832 F.2d 1294, 1296-
97 (D.C. Cir. 1987) (notice and comment unnecessary where regulation 
does no more than repeat, virtually verbatim, the statutory grant of 
authority); Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 
1291-92 (D.C. Cir. 1991) (no reason exists to require notice and 
comment procedures where regulations restate or paraphrase the detailed 
requirements of the statute).
    The Act took effect upon signature by the President. Given the 
extremely limited time within which the Board was required to implement 
procedures to accommodate the expedited review required under the Act, 
the Board finds that good cause exists to publish these amendments to 
its regulations in an interim final rule that is effective immediately. 
The Board finds that this expedited rulemaking is necessary to reduce 
potential confusion among appellants and agency representatives caused 
by outdated regulations and ensure that procedures are in place to 
facilitate the expedited case processing required under the Act. 
Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 882-84 (3d 
Cir. 1982) (finding good cause to dispense with notice and comment 
where Omnibus Budget Reconciliation Act amendments enacted by Congress 
became effective by statute on a specific date, shortly after 
enactment).

Summary of Amendments

    Section 1201.3 is amended to add 38 U.S.C. 713 to the list of 
sources of MSPB appellate jurisdiction.
    Section 1210.1 sets forth the MSPB's authority to issue decisions 
under 38 U.S.C. 713 and notes several relevant provisions of that 
statute.
    Section 1210.2 defines several words and terms used in part 1210.
    Section 1210.3 addresses the applicability of 5 CFR part 1201 to 
appeals filed under part 1210.
    Section 1210.4 repeats the Act's provision allowing the Board to 
waive any MSPB regulation to provide the expedited review required by 
the Act.
    Section 1210.5 sets forth certain items that must be included in an 
agency notice of removal or transfer issued pursuant to 38 U.S.C. 713.
    Section 1210.6 requires parties to use the MSPB e-filing system (e-
Appeal Online), observe filing procedures ordered by the administrative 
judge, and check frequently to see whether additional pleadings or 
orders have been added to the e-Appeal Online Repository.
    Section 1210.7 addresses the appropriate place for filing appeals, 
time limits for filing an appeal and a response, and time limits for 
filing appeals not covered under part 1210.
    Section 1210.8 repeats the Act's provision prohibiting an 
administrative judge from granting a stay request in an appeal covered 
under part 1210.
    Section 1210.9 requires the appellant to include the agency's 
decision notice and response file with the initial appeal.
    Section 1210.10 states that motions challenging the designation of 
a representative must be filed within 3 days of notification of the 
identity of the representative.
    Section 1210.11 sets forth procedures for initial status 
conferences, including scheduling, issues likely to be addressed, and 
the possibility of scheduling additional conferences. This regulation 
also recognizes the administrative judge's discretion in addressing 
these matters.
    Section 1210.12 requires initial disclosures, sets forth discovery 
procedures, and notes the administrative judge's authority to alter 
discovery procedures.
    Section 1210.13 requires the filing of non-discovery motions within 
5 days of the initial status conference and allows 2 days for filing an 
opposition. This regulation recognizes the administrative judge's 
authority to alter these deadlines.
    Section 1210.14 advises the parties that administrative judges have 
the authority to impose sanctions for failure to meet deadlines or obey 
orders. The regulation also makes clear that deadlines will be strictly 
enforced due to the statutorily-required expedited nature of appeals 
under part 1210.
    Section 1210.15 repeats the Act's provision requiring the agency to 
provide such information and assistance as are required to expedite the 
processing of appeals under part 1210. This regulation also requires 
the agency to advise the MSPB when it takes an action under 38 U.S.C. 
713.
    Section 1210.16 states that intervenors and amici curiae are 
permitted to participate in appeals under part 1210, that motions to 
intervene and requests to participate must be filed at the earliest 
possible time, and that intervenors and amici curiae must comply with 
the expedited procedures applicable to appeals under part 1210.
    Section 1210.17 addresses an appellant's right to a hearing under 5 
U.S.C. 7701, hearing procedures, and the responsibility of the MSPB to 
ensure the presence of a court reporter.
    Section 1210.18 addresses burdens of proof, standards of review, 
and review of penalties.
    Section 1210.19 contains procedures for the issuance of bench 
decisions.
    Section 1210.20 states that decisions by an administrative judge 
under this part are effective upon issuance and may be cited as 
persuasive authority in other appeals under part 1210 (but may

[[Page 48943]]

not be cited in appeals not filed under part 1210). This regulation 
also states that the MSPB retains jurisdiction following the issuance 
of a decision under part 1210 for purposes of enforcement of decisions 
and orders and attorney fees, witness fees, litigation expenses and 
damages.

List of Subjects in 5 CFR Parts 1201 and 1210

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR parts 1201 and 1210:

PART 1201--PRACTICES AND PROCEDURES

0
1. 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
2. Section 1201.3 is amended by revising paragraph (a)(10) to read as 
follows:


Sec.  1201.3  Appellate jurisdiction.

    (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); Furlough of a career appointee (5 CFR 359.805); Removal 
or transfer of a Senior Executive Service employee of the Department of 
Veterans Affairs (38 U.S.C. 713 and 5 CFR part 1210); and
* * * * *

0
3. Add a new part 1210 to read as follows:

PART 1210--PRACTICES AND PROCEDURES FOR AN APPEAL OF A REMOVAL OR 
TRANSFER OF A SENIOR EXECUTIVE SERVICE EMPLOYEE BY THE SECRETARY OF 
THE DEPARTMENT OF VETERANS AFFAIRS

Sec.
1210.1 Authority to issue decisions under this part.
1210.2 Definitions.
1210.3 Application of practices and procedures to appeals filed 
under this part.
1210.4 Waiver of MSPB regulations.
1210.5 Determination of the Secretary effecting a removal or 
transfer; required notice of expedited procedures; initial 
disclosures.
1210.6 Electronic filing procedures; expedited filing procedures.
1210.7 Filing an appeal and a response to an appeal.
1210.8 Stay requests.
1210.9 Disclosures of information required with initial appeal.
1210.10 Representatives.
1210.11 Initial status conference; scheduling the hearing.
1210.12 Discovery.
1210.13 Deadlines for filing motions.
1210.14 Sanctions for failure to meet deadlines.
1210.15 Agency duty to assist in expedited review.
1210.16 Intervenors and amici curiae.
1210.17 Hearings.
1210.18 Burden of proof, standard of review, and penalty.
1210.19 Bench decisions.
1210.20 Effective date of a decision issued by an administrative 
judge; continuing jurisdiction over certain ancillary matters.

    Authority:  5 U.S.C. 1204 and 7701, and 38 U.S.C. 713.


Sec.  1210.1  Authority to issue decisions under this part.

    (a) Under 38 U.S.C. 713(d)(2)(A), as created by the Veterans 
Access, Choice and Accountability Act of 2014 (the Act), an employee 
covered by this part may appeal a removal from the civil service or a 
transfer to a General Schedule position based upon performance or 
misconduct to the MSPB.
    (b) MSPB administrative judges have the authority to issue a 
decision in an appeal covered by this part. (38 U.S.C. 713(e)(1)).
    (c) The administrative judge's authority under this part to issue a 
decision terminates following the passage of 21 days after the appeal 
is initially filed. (38 U.S.C. 713(e)(3)).
    (d) An administrative judge's decision in an appeal filed under 
this part is not subject to any further appeal. (38 U.S.C. 713(e)(2)).
    (e) This part applies only to the Secretary's authority to remove 
or transfer an employee covered under 38 U.S.C. 713 and the Board's 
authority to review such decisions. This authority is in addition to 
the authority already provided the agency in 5 U.S.C. 3592 and the 
authority provided the Board under 5 U.S.C. 7541, et seq. to take an 
adverse action against an employee. (38 U.S.C. 713(f)).


Sec.  1210.2  Definitions.

    (a) The term employee covered by this part means an individual (a 
career appointee as that term is defined in 5 U.S.C. 3132(a)(4) or an 
individual who occupies an administrative or executive position and is 
appointed under 38 U.S.C. 7306(a) or 7501(1)) employed in a Senior 
Executive Service position at the Department of Veterans Affairs. (38 
U.S.C. 713(a) and (g)).
    (b) The term administrative judge means a person experienced in 
hearing appeals and assigned by the Board to hold a hearing and decide 
an appeal arising under this part. (38 U.S.C. 713(e)(1)).
    (c) The term response file means all documents and evidence the 
Secretary of the Department of Veterans Affairs, or designee, used in 
making the decision to remove or transfer an employee covered by this 
part. It also may include any additional documents or evidence that the 
agency would present in support of the Secretary's determination in the 
event that an appeal is filed.
    (d) The term misconduct includes neglect of duty, malfeasance, or 
failure to accept a directed reassignment or to accompany a position in 
a transfer of function. (38 U.S.C. 713(g)(2)).
    (e) The term transfer means the transfer of an employee covered by 
this part to a General Schedule position. (38 U.S.C. 713(a)(1)(B)).


Sec.  1210.3  Application of practices and procedures to appeals filed 
under this part.

    (a) The following provisions of part 1201 of this chapter are 
inapplicable to appeals filed under this part:
    (1) Section 1201.22 (inapplicable to appeals brought under this 
part pursuant to Public Law 113-146, section 707(b)(2));
    (2) Section 1201.27 (class appeals are not allowed as such appeals 
cannot be adjudicated within 21 days);
    (3) Section 1201.28 (case suspensions are not allowed because they 
are inconsistent with the requirement to adjudicate appeals under this 
part within 21 days);
    (4) Section 1201.29 (dismissals without prejudice are not allowed 
because those procedures are inconsistent with the requirement to 
adjudicate appeals under this part within 21 days);
    (5) Section 1201.56 (this regulation is not controlling; parties 
should refer to Sec.  1210.18);
    (6) Sections 1201.91 through 1201.93 (interlocutory appeals are not 
allowed because the Board lacks authority to review appeals filed under 
this part);
    (7) Sections 1201.114 through 1201.20 (petitions for review are not 
allowed because the decisions in appeals filed under this part are not 
subject to further appeal) (38 U.S.C. 713(e)(2));
    (8) Sections 1201.121 through 1201.145 (procedures for other 
original jurisdiction cases are not relevant to appeals filed under 
this part);
    (9) Sections 1201.152, 1201.153(b), 1201.154, 1201.155, 1201.156, 
1201.157, and 1201.161 (these provisions are inapplicable to appeals 
filed under 38 U.S.C. 713).

[[Page 48944]]

    (b) Except as modified by this part, the remaining relevant 
provisions of part 1201 of this chapter are applicable to appeals filed 
under this part.


Sec.  1210.4  Waiver of MSPB regulations.

    The Board may waive any MSPB regulation in order to provide for the 
expedited review of an appeal covered by this part. Public Law 113-146, 
section 707(b)(3).


Sec.  1210.5  Determination of the Secretary effecting a removal or 
transfer; required notice of expedited procedures; initial disclosures.

    An agency notice of a removal or transfer pursuant to 38 U.S.C. 713 
must include the following:
    (a) A statement identifying the action taken based on the 
Secretary's determination, stating the factual reasons for the 
charge(s), and statement setting forth the basis for the Secretary's 
determination that the performance or misconduct warrants removal or 
transfer.
    (b) Notice regarding the Board's expedited procedures applicable to 
an appeal. Such notice shall include a copy of this part and access to 
the remainder of the Board's adjudicatory regulations.
    (c) A copy of the materials the Secretary relied upon to remove or 
transfer the appellant (normally referred to as the ``response file'').
    (d) The name and contact information of the agency's representative 
for any appeal filed with the MSPB under this part.
    (e) Notice that MSPB appeals must be filed with the appropriate 
Board regional or field office. See Sec.  1201.4(d) of this chapter.


Sec.  1210.6  Electronic filing procedures; expedited filing 
procedures.

    (a) Required use of MSPB e-filing system. All parties must 
electronically file all pleadings and documents listed in 5 CFR 
1201.14(b) by using the MSPB's e-filing system (e-Appeal Online). An 
attempt to file an appeal using any other method will result in 
rejection of the appeal and will not constitute compliance with the 7-
day filing deadline under the Act, except in the limited circumstances 
described in Sec.  1210.7(c).
    (b) Expedited filing and service requirements. All documents and 
pleadings not otherwise covered in paragraph (a) of this section must 
be filed in accordance with any expedited filing and service procedures 
ordered by the administrative judge.
    (c) The parties should frequently check the Repository on e-Appeal 
Online to ensure that they are aware of new pleadings, orders and 
submissions in a timely fashion. A party's failure to check for updates 
on e-Appeal Online may lead to a denial of a request to extend a 
deadline and/or the imposition of sanctions.


Sec.  1210.7  Filing an appeal and a response to an appeal.

    (a) Place for filing an appeal and a response. Appeals, and 
responses to those appeals, must be filed with the appropriate Board 
regional or field office. See Sec.  1201.4(d) of this chapter.
    (b) Time for filing an appeal and agency response. An appeal of an 
action taken pursuant to 38 U.S.C. 713 must be filed no later than 7 
days after the effective date of the removal or transfer being 
appealed. (38 U.S.C. 713(d)(2)(B)). An agency response must be filed 
within 3 days of the filing of the appeal.
    (c) Timeliness of appeals. If an appellant does not submit an 
appeal within 7 days of the effective date of the action it will be 
dismissed as untimely filed. This deadline cannot be extended for any 
reason. (38 U.S.C. 713(d)(2)(B)). However, if an appellant establishes 
that he or she attempted to file an appeal using e-Appeal Online within 
the 7-day deadline and that the filing was unsuccessful due to a 
problem with e-Appeal Online, the administrative judge may deem the 
filing to have been completed on the date it was attempted, provided 
the appellant took reasonable steps to immediately advise the MSPB of 
the failed attempt to file the appeal using e-Appeal Online. The 21-day 
deadline for issuance of a decision will commence on the day such an 
appeal was deemed to have been filed.
    (d) Time limits for other appeals not brought under 38 U.S.C. 713. 
The time limit prescribed by paragraph (b) of this section for filing 
an appeal does not apply where a law or regulation establishes a 
different time limit or where there is no applicable time limit. No 
time limit applies to appeals under the Uniformed Services Employment 
and Reemployment Rights Act (Pub. L. 103-353), as amended; see part 
1208 of this chapter for the statutory filing time limits applicable to 
appeals under the Veterans Employment Opportunities Act (Pub. L. 105-
339); see part 1209 of this chapter for the statutory filing time 
limits applicable to whistleblower appeals and stay requests.


Sec.  1210.8  Stay requests.

    An administrative judge may not grant a stay request in any appeal 
covered by this part. (38 U.S.C. 713(e)(4)).


Sec.  1210.9  Disclosures of information required with initial appeal.

    An appellant must attach to his or her appeal a copy of the 
agency's decision notice and the response file that the agency is 
required to disclose to the appellant pursuant to Sec.  1210.5(c).


Sec.  1210.10  Representatives.

    Motions challenging the designation of a representative must be 
filed within 3 days of the submission of the designation of 
representative notice.


Sec.  1210.11  Initial status conference; scheduling the hearing.

    This regulation contains guidance for the parties concerning when 
initial status conferences will occur and the issues that will be 
addressed. In any appeal under this part the administrative judge 
retains complete discretion in deciding when to schedule the initial 
status conference and in selecting the issues to be addressed.
    (a) Scheduling the conference. The administrative judge will 
schedule the initial status conference. Generally, the parties should 
expect that the initial status conference will take place within a week 
after the appeal is filed.
    (b) Issues likely to be addressed at the initial status conference. 
The parties should be prepared to discuss the following issues at the 
initial status conference:
    (1) The hearing date and anticipated length of the hearing;
    (2) Settlement;
    (3) Discovery deadlines and disputes;
    (4) Admission or rejection of exhibits;
    (5) Witnesses to be called to testify at the hearing;
    (6) Motions; and,
    (7) Any other issues identified by, or that require the involvement 
of, the administrative judge.
    (c) Additional status conferences. The administrative judge may 
schedule additional status conferences as necessary to fully develop 
the case for hearing.


Sec.  1210.12  Discovery.

    Except as noted in paragraphs (a) through (d) of this section, 5 
CFR 1201.71 through 1201.75 apply to appeals filed under this part.
    (a) Initial disclosures. The parties must make the following 
initial disclosures prior to the initial status conference.
    (1) Agency. The agency must provide:
    (i) A copy of all documents in the possession, custody or control 
of the agency that the agency may use in support of its claims or 
defenses; and,
    (ii) The name and, if known, address, telephone number and email 
address for

[[Page 48945]]

each individual likely to have discoverable information that the agency 
may use in support of its claims or defenses.
    (2) Appellant. The appellant must provide:
    (i) A copy of all documents in the possession, custody or control 
of the appellant that the appellant may use in support of his or her 
claims or defenses; and,
    (ii) The name and, if known, address, telephone number and email 
address for each individual likely to have discoverable information 
that the appellant may use in support of his or her claims or defenses.
    (b) Time limits. The time limits set forth in Sec.  1201.73 of this 
chapter shall not apply to an appeal under this part. The following 
time limits apply to appeals under this part:
    (1) Discovery requests must be served on the opposing party prior 
to the initial status conference.
    (2) Responses to discovery requests must be served on the opposing 
party no later than 3 days after the initial status conference.
    (3) Discovery motions, including motions to compel, must be filed 
no later than 5 days after the initial status conference.
    (c) Methods of discovery. Parties may use one or more of the 
following methods of discovery provided under the Federal Rules of 
Civil Procedure:
    (1) Written interrogatories;
    (2) Requests for production of documents or things for inspection 
or copying;
    (3) Requests for admissions.
    (d) Limits on discovery requests. Absent approval by the 
administrative judge, discovery is limited as follows:
    (1) Interrogatories may not exceed 10 in number, including all 
discrete subparts;
    (2) The parties may not take depositions; and
    (3) The parties may engage in only one round of discovery.
    (e) Administrative judge's discretion to alter discovery 
procedures. An administrative judge may alter discovery procedures in 
order to provide for the expedited review of an appeal filed under this 
part.


Sec.  1210.13  Deadlines for filing motions.

    (a) Motions. All non-discovery motions must be filed no later than 
5 days after the initial status conference.
    (b) Objections. Objections to motions must be filed no later than 2 
days after the motion is filed.
    (c) Administrative judge's discretion to alter deadlines. An 
administrative judge may exercise discretion to alter or waive these 
deadlines.


Sec.  1210.14  Sanctions for failure to meet deadlines.

    Section 1201.43 of this chapter, which allows administrative judges 
to impose sanctions on parties that do not comply with orders or do not 
file pleadings in a timely fashion, shall apply to any appeal covered 
by this part. Strict enforcement of deadlines will be required to meet 
the 21-day deadline for issuance of a decision by the administrative 
judge.


Sec.  1210.15  Agency duty to assist in expedited review.

    (a) As required by 38 U.S.C. 713(e)(6), the agency is required to 
provide the administrative judge such information and assistance as may 
be necessary to ensure that an appeal covered by this part is completed 
in an expedited manner.
    (b) The agency must promptly notify the MSPB whenever it issues a 
Secretarial determination subject to appeal under this part. Such 
notification must include the location where the employee worked, the 
type of action taken, and the effective date of the action. 
Notification should be sent to [email protected].


Sec.  1210.16  Intervenors and amici curiae.

    Intervenors and amici curiae are permitted to participate in 
proceedings under this part as allowed in Sec.  1201.34 of this 
chapter. Motions to intervene and requests to participate as an amicus 
curiae must be filed at the earliest possible time, generally before 
the initial status conference. All intervenors and amici curiae must 
comply with the expedited procedures set forth in this part and all 
orders issued by the administrative judge. The deadlines applicable to 
the timely adjudication of cases under this part will not be extended 
to accommodate intervenors or amici curiae.


Sec.  1210.17  Hearings.

    (a) Right to a hearing. An appellant has a right to a hearing as 
set forth in 5 U.S.C. 7701(a).
    (b) General. Hearings may be held in-person, by video or by 
telephone at the discretion of the administrative judge.
    (c) Scheduling the hearing. The administrative judge will set the 
hearing date during the initial status conference. A hearing generally 
will be scheduled to occur no later than 18 days after the appeal is 
filed.
    (d) Length of hearings. Hearings generally will be limited to no 
more than 1 day. The administrative judge, at his or her discretion, 
may allow for a longer hearing.
    (e) Court reporters. The MSPB will contract for a court reporter to 
be present at hearings.


Sec.  1210.18  Burden of proof, standard of review, and penalty.

    (a) Agency. Under 5 U.S.C. 7701(c)(1), and subject to exceptions 
stated in paragraph (c) of this section, the agency (the Department of 
Veterans Affairs) bears the burden of proving that an appellant engaged 
in misconduct, as defined by 38 U.S.C. 713(g)(2), or poor performance, 
and the Secretary's determination as to such misconduct or poor 
performance shall be sustained only if the factual reasons for the 
charge(s) are supported by a preponderance of the evidence. Proof of 
misconduct or poor performance shall create a presumption that the 
Secretary's decision to remove or transfer the appellant was warranted. 
The appellant may rebut this presumption by establishing that the 
imposed penalty was unreasonable under the circumstances of the case. 
The following examples illustrate the application of this rule:

    Example A. The Secretary determines that the appellant 
intentionally submitted false data on the agency's provision of 
medical care and that the misconduct warrants transfer to a General 
Schedule position. The appellant files an appeal with the Board. 
Following a hearing, the administrative judge finds that the agency 
proved its charge by preponderant evidence. The appellant's transfer 
is presumed to be warranted, absent a showing that such a penalty 
was unreasonable under the circumstances of the case.
    Example B. The Secretary determines that the appellant's 
performance or misconduct warrants removal, but the notice of the 
decision and the agency's response file do not identify any factual 
reasons supporting the Secretary's determination. The appellant 
files an appeal with the Board. The administrative judge may not 
sustain the removal because the agency, in taking its action, 
provided no factual reasons in support of its charge(s).
    Example C.  The Secretary determines that the appellant's 
performance or misconduct warrants removal. The appellant files an 
appeal with the Board. During the processing of the appeal, the 
appellant contends that the agency unduly delayed or refused to 
engage in discovery. If the agency has obstructed the appeal from 
being adjudicated in a timely fashion, the administrative judge may 
impose sanctions, up to and including the drawing of adverse 
inferences or reversing the removal action. Because the 
administrative judge finds that the agency has not unduly delayed or 
refused to engage in discovery, he declines to impose sanctions and 
affirms the removal.
    Example D. The Secretary decides to remove the appellant based 
on a charge that the appellant engaged in a minor infraction that 
occurred outside the workplace. The

[[Page 48946]]

appellant files an appeal with the Board. Following a hearing, the 
administrative judge finds that the agency proved its charge and 
further finds that the appellant established that the penalty of 
removal was unreasonable under the circumstances of the case. The 
presumption that the Secretary's decision to remove was warranted is 
rebutted and the action is reversed.

    (b) Appellant. The appellant (a career member of the agency's 
Senior Executive Service corps) has the burden of proof, by a 
preponderance of the evidence, concerning:
    (1) Issues of jurisdiction;
    (2) The timeliness of the appeal; and
    (3) Affirmative defenses.
    (c) Affirmative defenses. Under 5 U.S.C. 7701(c)(2), the 
Secretary's determination may not be sustained, even where the agency 
met the evidentiary standard stated in paragraph (a) of this section, 
if the appellant shows that:
    (1) The agency, in rendering its determination, committed harmful 
error in the application of its procedures;
    (2) The decision was based on any prohibited personnel practice 
described in 5 U.S.C. 2302(b); or
    (3) The determination is not otherwise in accordance with law.
    (d) Penalty review. As set forth in paragraph (a) of this section, 
proof of the agency's charge(s) by preponderant evidence creates a 
presumption that the Secretary's decision to remove or transfer the 
appellant was warranted. An appellant may rebut this presumption by 
establishing that the imposed penalty was unreasonable under the 
circumstances of the case, in which case the action is reversed. 
However, the administrative judge may not mitigate the Secretary's 
decision to remove or transfer the appellant.


Sec.  1210.19  Bench decisions.

    (a) General. The administrative judge may issue a bench decision at 
the close of the hearing. A bench decision is effective when issued.
    (b) Transcription of bench decision. A transcribed copy of the 
decision will be prepared by the court reporter under the 
administrative judge's supervision to memorialize the oral decision. 
The official issuance of a bench decision is the date the 
administrative judge announces the decision and not the date the 
administrative judge signs the transcription.


Sec.  1210.20  Effective date of a decision issued by an administrative 
judge; continuing jurisdiction over certain ancillary matters.

    (a) A decision by an administrative judge under this part will be 
effective upon issuance.
    (b) Pursuant to 38 U.S.C. 713(e)(2), a decision by the 
administrative judge is not subject to further appeal.
    (c) A decision by the administrative judge is nonprecedential. Such 
a decision may be cited as persuasive authority only in an appeal filed 
pursuant to 38 U.S.C. 713(e)(2). Such a decision may not be cited in 
any appeal not filed pursuant to 38 U.S.C. 713(e)(2).
    (d) Following issuance of a decision by the administrative judge 
under this part, the MSPB retains jurisdiction over the appeal covered 
by this part for purposes of the following ancillary matters:
    (1) Enforcement of decisions and orders. The procedures set forth 
in subpart F of 5 CFR part 1201 are applicable to petitions for 
enforcement filed after the administrative judge issues a decision in 
an appeal filed under this part; and,
    (2) Attorney fees, witness fees, litigation expenses, and damages. 
The procedures set forth in subpart H of 5 CFR part 1201 (attorney 
fees, costs, expert witness fees, and litigation expenses, where 
applicable, and damages) are applicable to requests for fees and 
damages filed after the administrative judge issues a decision in an 
appeal filed under this part. (5 U.S.C. 7701(g)).

William D. Spencer,
Clerk of the Board.
[FR Doc. 2014-19589 Filed 8-15-14; 8:45 am]
BILLING CODE 7400-01-P