[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Rules and Regulations]
[Pages 63031-63032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25212]



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 Rules and Regulations
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  Federal Register / Vol. 79, No. 204 / Wednesday, October 22, 2014 / 
Rules and Regulations  

[[Page 63031]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1210


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
adopting as final an interim rule that adapted the Board's regulations 
to legislative changes which created new laws applicable to the removal 
or transfer of Senior Executive Service employees of the Department of 
Veterans Affairs.

DATES: Effective: October 22, 2014.

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: On August 19, 2014, the Board published an 
interim final rule (79 FR 48941) that amended 5 CFR 1201.3 and added a 
new 5 CFR part 1210 to the Board's adjudicatory procedures in response 
to amendments to Federal law contained in the Veterans' Access to Care 
through Choice, Accountability, and Transparency Act of 2014, Public 
Law 113-146 (the Act). Two days later, on August 21, 2014, the Board 
amended the interim final rule by making certain technical corrections 
to definitions and citations. 79 FR 49423.
    As the Board explained in detail in the interim rule at 79 FR 
48941-48942, section 707(a) of the Act created 38 U.S.C. 713, which 
contains 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, requires expedited review of 
appeals of such actions by the MSPB, and limits review of such actions 
to a final decision issued by an MSPB administrative judge. 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 and to submit a report to Congress within 14 days that 
addresses several matters, including the steps the Board is taking to 
conduct the expedited review required under the Act. The Board 
submitted the required report to Congress on August 21, 2014. A copy of 
the report is available at the Board's Web site (www.mspb.gov).
    The MSPB received comments concerning its interim final rule from 
the National Employment Lawyers Association, the law firm of Passman 
and Kaplan, and the American Civil Liberties Union of the Nation's 
Capital. The comments are available to the public at the Board's Web 
site (www.mspb.gov). These commenters raised several concerns with the 
interim final rule.
    The commenters asked the MSPB to reconsider limitations on 
discovery set forth in part 1210. While the Board understands the 
position of the commenters, it remains convinced that broader discovery 
rules are incompatible with the requirement to adjudicate within 21 
days cases filed under 38 U.S.C. 713. Accordingly, the Board will 
retain the current discovery rules, which limit the parties to 10 
interrogatories, no depositions, and no second round of discovery. The 
Board notes that, under part 1210, the administrative judge has the 
discretion to allow additional discovery and alter discovery procedures 
when he or she deems it necessary.
    A commenter asked the MSPB to expand the scope of materials that an 
agency must disclose when taking an action covered by part 1210. The 
interim rule provides that an agency must supply a copy of the 
``response file'' (all documents and evidence the agency used in making 
the decision to remove or transfer a covered employee). 5 CFR 1210.2(c) 
and 1210.5(c). The Board has concluded that the current ``response 
file'' is sufficient to inform the employee of the reasons supporting 
the agency action and that expanding the scope of required disclosures 
is not necessary because the additional information identified by the 
commenters can be obtained in discovery.
    A commenter objected to the Board's regulation imposing a 
rebuttable presumption in favor of the Secretary's penalty 
determination as inconsistent with 38 U.S.C. 713, 5 U.S.C. 7701, and 
Board case law. The Board respectfully disagrees with this comment.
    As the commenter noted, the Board's current regulation states that 
proof of underlying misconduct or poor performance by the agency 
creates a presumption that the penalty (removal or transfer) was 
warranted. 5 CFR 1210.18(a). An appellant may rebut this presumption by 
establishing that the selected penalty was unreasonable under the 
circumstances of the case. Id.
    In drafting part 1210, the Board sought to interpret 38 U.S.C. 713 
in accordance with its plain meaning and Congressional intent. 
Consistent with these considerations, part 1210 requires the Department 
of Veterans Affairs to prove its charges of misconduct and poor 
performance by preponderant evidence, as required in appeals filed at 
the Board under 5 U.S.C. 7701.
    The commenter correctly notes that the penalty analysis set forth 
in part 1210 differs from the penalty analysis the Board employs in 
other appeals. Generally, the Board requires that an agency prove by 
preponderant evidence that the penalty promotes the efficiency of the 
service and is reasonable. In so doing, the Board reviews an agency-
imposed penalty to determine if the agency considered all the relevant 
factors and exercised management discretion within tolerable limits of 
reasonableness. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981).
    However, under 38 U.S.C. 713(a)(1), ``[t]he Secretary may remove an 
individual from a Senior Executive Service position . . . if the 
Secretary determines the performance or misconduct of the individual 
warrants such removal.'' The Board has interpreted this unqualified 
language as granting the Secretary of the Department of Veterans 
Affairs broad discretion in selecting the appropriate penalty for 
proven misconduct or poor performance. In order to afford appropriate 
deference to the Secretary's penalty decision, while at the same time 
preserving the Board's ultimate authority to review such a 
determination in an appeal filed with

[[Page 63032]]

the Board, the Board has interpreted 38 U.S.C. 713 as requiring the use 
of a rebuttable presumption in favor of a penalty selected by the 
Secretary. Applying the penalty analysis employed in other MSPB appeals 
to appeals filed under 38 U.S.C. 713 would be inappropriate, as the law 
governing other appeals simply does not require the deference required 
under 38 U.S.C. 713.
    A commenter asked the MSPB to amend part 1210 to state that filing 
an appeal with the MSPB under section 707 of the Act is not an election 
of remedies barring pursuit of other statutory or regulatory appeal or 
complaint processes, such as filing an equal employment opportunity 
complaint, an individual right of action appeal, and claims under the 
Uniformed Services Employment and Reemployment Rights Act. The Board 
will not address this issue because it believes that such legal issues 
should initially be addressed through normal litigation processes. In 
addition, part 1210 is intended primarily to create procedures that 
will enable MSPB administrative judges to decide cases filed under 38 
U.S.C. 713 within 21 days as required by that statute. The election of 
remedies issue presented by the commenter was not addressed in the 
interim rule and addressing this issue now will not further serve the 
purpose for which the Board promulgated part 1210.
    A commenter asked the Board to amend its regulations to state that 
a decision issued under part 1210 would have no res judicata effect in 
any other type of action because an MSPB decision on an appeal filed 
under 38 U.S.C. 713 will not satisfy due process requirements. The 
Board will not include such a statement in part 1210. The Board has no 
authority to determine the legal effect of its decisions in other fora. 
In addition, the Board has stated that it lacks the authority to 
determine the constitutionality of a statute. Brooks v. Office of Pers. 
Mgmt., 59 M.S.P.R. 207, 215 n. 7 (1993).
    A commenter urged the MSPB to add a new regulation requiring the 
Department of Veterans Affairs to pay for a complete hearing transcript 
in all cases decided under part 1210. The commenter further suggested 
that the Board amend part 1210 to mandate that the hearing transcript 
and all hearing exhibits be sent to the Department of Veterans Affairs 
Inspector General and House and Senate oversight committees.
    The Board has considered this proposal but will not amend its 
regulations as requested. A copy of the hearing compact disc, hearing 
transcript (to the extent a hearing transcript is contained in the 
Board's files), and all hearing exhibits can be made available to 
interested parties as permitted under Federal law, including, but not 
limited to, the Freedom of Information Act (FOIA), 5 U.S.C. 552, as 
amended, 5 CFR parts 1204 and 1205, and 5 CFR 1201.53. The Board notes 
that the final decisions in all appeals decided under part 1210 will be 
available for public review in the same manner as Board final decisions 
in other types of appeals.
    A commenter asked the MSPB to amend its regulations to ensure that 
each side will have sufficient and equal time to present their cases, 
despite statutorily-required time constraints on completion of the 
appeal. The Board expects that its administrative judges will ensure 
that the parties are given a fair opportunity to present evidence and 
that the requested regulatory change is therefore unnecessary.
    A commenter suggested that in view of the limitations that part 
1210 places on discovery and the inability of the three-member Board at 
MSPB headquarters in Washington, DC, to review an administrative 
judge's evidentiary rulings, the Board should amend part 1210 to allow 
greater latitude in the scope of witness examination and include a 
requirement that administrative judges should avoid excluding evidence 
or witness testimony to the greatest extent possible. The Board does 
not believe that such additional requirements are necessary. Given the 
statutorily-required time limits in covered appeals, MSPB 
administrative judges must be allowed to limit the introduction of 
irrelevant or duplicative evidence as they do under normal Board 
procedures. The Board has a high degree of confidence in the ability of 
its administrative judges to fairly conduct the expedited review 
required under 38 U.S.C. 713.
    A commenter asked the Board to amend its regulations to state that 
section 707 of the Act in no way modifies the Special Counsel's 
prosecutorial authority under 5 U.S.C. 1215. The Board will not address 
this issue because, as noted above, it believes that such legal issues 
should initially be addressed through the normal litigation process. In 
addition, part 1210 is intended primarily to create procedures that 
will enable MSPB administrative judges to decide appeals filed under 38 
U.S.C. 713 within 21 days, as required by the Act. Addressing the issue 
presented by the commenter will not further that goal.
    A commenter suggested that MSPB should amend its regulations to 
require the agency to file a protective order when it refuses to reply 
to a discovery request. The commenter suggested that such a procedure 
would be quicker and more efficient than requiring an appellant to file 
a motion to compel discovery. While the Board understands how this 
proposal could perhaps speed the resolution of certain discovery 
disputes, the Board believes that its current discovery procedures have 
generally proven to work well and will allow the parties ample time to 
resolve discovery disputes. However, to the extent that timely 
completion of discovery is identified as a problem in cases brought 
under part 1210, the Board may reconsider this proposal as a means of 
speeding completion of discovery.
    A commenter asked the MSPB to amend its regulations to allow 
parties to seek modification of exhibit and witness lists in response 
to discovery requests. As noted earlier, MSPB administrative judges 
fully appreciate the practical difficulties facing the parties as they 
assemble and present a case within the 21-day deadline mandated by the 
Act and the Board expects its administrative judges to allow timely 
requests to modify exhibit and witness lists.
    As of the date of submission of this final rule for publication in 
the Federal Register, no appeals have been filed with the Board under 
38 U.S.C. 713. The Board may reexamine part 1210 procedures in light of 
actual experience and will, if necessary, seek additional comment on 
its procedures and/or propose amendments to part 1210.

List of Subjects in 5 CFR Parts 1201 and 1210

    Administrative practice and procedure.

William D. Spencer,
Clerk of the Board.

Corrected Interim Rule Adopted as Final Without Change

    Accordingly, the interim rule amending 5 CFR Parts 1201 and 1210, 
which was published at 79 FR 48941 on August 19, 2014, 2014, and 
subsequently corrected at 79 FR 49423 on August 21, 2014, is adopted as 
a final rule without change.

[FR Doc. 2014-25212 Filed 10-21-14; 8:45 am]
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