[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67055-67058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21272]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / 
Rules and Regulations  

[[Page 67055]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Organization and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
launching an updated electronic filing (e-filing) system, e-Appeal, on 
October 2, 2023, in support of MSPB's agency-wide initiative to 
modernize its technology, gain new efficiencies, and improve the e-
filing experience for our external users. MSPB hereby amends its rules 
of practice and procedure to require all pleadings filed by agencies 
and attorneys who represent appellants in MSPB proceedings to be 
electronically filed (e-filed). This requirement will apply to all 
pleadings in all adjudicatory proceedings before the Board except those 
specifically excluded by this interim final rule.

DATES: This interim final rule is effective October 2, 2023. Submit 
written comments concerning this interim final rule on or before 
December 31, 2023.

ADDRESSES: Submit comments by using only one of the following methods:
    Email: mspb.gov">mspb@mspb.gov. Include ``Amendments to E-filing 
Regulations'' in the subject line of the email.
    Fax: (202) 653-7130.
    Mail or other commercial delivery: Jennifer Everling, Acting Clerk 
of the Board, Merit Systems Protection Board, 1615 M Street NW, 
Washington, DC 20419.
    Instructions: All comments must reference ``Amendments to E-filing 
Regulations.'' Regardless of the method used for submitting comments or 
material, all submissions will be posted, without change, to MSPB's 
website (www.mspb.gov) and will include any personal information you 
provide. Therefore, submitting this information makes it public.

FOR FURTHER INFORMATION CONTACT: Jennifer Everling, Acting Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 
20419; phone: (202) 653-7200; fax: (202) 653-7130; email: 
mspb.gov">mspb@mspb.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 26, 2008, MSPB issued final regulations at 5 CFR parts 
1201, 1203, 1208, and 1209 governing e-filing. 73 FR 10127. Under those 
regulations, virtually any type of pleading could be filed 
electronically via MSPB's e-filing application. In the February 26, 
2008 Federal Register notice, MSPB announced that it was giving serious 
consideration to mandating e-filing for agencies and attorneys who 
represent appellants in MSPB proceedings. 73 FR 10127-28.
    On October 13, 2011, MSPB issued an interim final rule, with 
request for comments, launching a pilot program under which the 
Washington Regional Office (WRO) and Denver Field Office (DEFO) 
required all pleadings filed by agencies and attorneys who represent 
appellants in MSPB proceedings to be e-filed. In the October 13, 2011 
Federal Register notice, MSPB noted that should the pilot program in 
WRO and DEFO prove to be successful, the Board would consider proposing 
a final comprehensive rule that would make e-filing mandatory for 
agencies and attorneys who represent appellants. Since the launch of 
the pilot program, the proportion of pleadings e-filed has steadily 
increased. In fiscal year 2022, 85% of initial appeals and 95% of 
pleadings were filed electronically using MSPB's e-filing application.
    On October 2, 2023, MSPB will launch an updated e-filing system, e-
Appeal. The extensive capabilities of MSPB's current e-filing 
application that allow appellants, their representatives, and agencies 
to e-file an appeal and pleadings and view case records will still be 
available in the new, modernized e-Appeal system. Additionally, in the 
new e-Appeal, parties and their representatives will have access to a 
dashboard that allows management of all their Board cases and case 
materials in one place, providing new efficiencies for our customers. 
Although MSPB's current e-filing application has been valuable to both 
MSPB and its customers, some benefits can only be fully realized by 
maximizing the number of pleadings that are e-filed. By requiring e-
filing for agencies and attorneys who represent appellants, MSPB can 
improve efficiency in adjudication and reduce costs associated with the 
need to scan pleadings that are submitted in paper form.
    Finally, while these amendments are being issued immediately as 
interim final rules, the Board still requests that all stakeholders or 
other interested individuals provide their views on the amendments. The 
Board will thoroughly consider all input and respond to all comments as 
necessary.

II. Summary of Changes

    Set forth below is a summary of amendments being implemented by 
MSPB.

Part 1201--Practices and Procedures

Subpart B--Procedures for Appellate Cases
Section 1201.14 Electronic Filing Procedures
    This amendment modifies the procedures related to e-filing with the 
Board to require agency representatives and appellant attorney 
representatives to register as e-filers with MSPB and to file all 
pleadings using MSPB's e-Appeal. The amendment further modifies the 
scope of registration as an e-filer to now include all cases a party 
has with MSPB, and the requirements for what may be included with 
electronic pleadings in Board appeals. The amendment adds the 
requirement for agencies to designate an individual agency 
representative to whom the Board will serve a copy of an appeal when it 
is docketed.
Section 1201.24 Content of an Appeal; Right to Hearing
    This amendment modifies the requirements for the information 
contained in an appeal to include the email address of the appellant 
and the appellant's representative, if any. Because free email 
addresses are widely available, requiring an email address should not 
be an undue burden on appellants or appellant non-attorney 
representatives who do not register as e-filers. The amendment further 
removes

[[Page 67056]]

references to the direct link to MSPB's e-Appeal, which can be accessed 
directly from MSPB's website.
Section 1201.26 Service of Pleadings and Response
    This amendment removes the requirement for the appellant to file 
two copies of the appeal with the Board and modifies the formatting 
requirements for pleadings filed via postal mail, facsimile, or 
commercial or personal delivery in Board appeals. This amendment 
further adds the requirements for how audio and video evidence may be 
submitted to the Board.
Appendix II to Part 1201--Appropriate Regional or Field Office for 
Filing Appeals
    This amendment reflects the change to the contact information of 
the Board's New York Field Office. Appendix II of this part is amended 
to show the new address and facsimile number. The geographical areas 
served by the New York Field Office are unchanged. This amendment also 
removes obsolete language regarding text-based telecommunications 
capabilities of the facsimile numbers for the Board's Regional and 
Field Offices.

III. Effective Date of Amendments

    The amendments described above will go into effect on October 2, 
2023.

IV. Procedural Requirements

A. Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b), MSPB has determined that good cause 
exists for waiving the general notice of proposed rulemaking and public 
comment procedures as to these technical amendments. The notice and 
comment requirements of section 553(b) do not apply to interpretive 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice. The Board finds that use of an interim final 
rule instead of notice and comment rulemaking is appropriate here 
because the amendments contained herein apply solely to the Board's 
rules of agency organization, procedure, or practice. All of the 
amendments solely address how appeals proceed at the Board, and do not 
affect any substantive rights of parties before the Board or interested 
stakeholders. No substantive changes in existing law or policy are 
effected from these amendments. Under these circumstances, notice and 
comment rulemaking is unnecessary and not required by any public 
interest.

B. Regulatory Impact Analysis: Executive Order 12866

    MSPB has determined that this is not a significant regulatory 
action under E.O. 12866. Therefore, no regulatory impact analysis is 
required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare 
a regulatory flexibility analysis for rules unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. The RFA applies only to rules for 
which an agency is required to first publish a proposed rule. See 5 
U.S.C. 603(a) and 604(a). As discussed above, notice and comment 
rulemaking is unnecessary for these changes due to the lack of 
substantive changes being made to existing law or policy. Thus, the RFA 
does not apply to this final rule.

D. Paperwork Reduction Act

    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 
U.S.C. Chapter 35).

E. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure.

    Accordingly, for the reasons set forth above, 5 CFR part 1201 is 
amended as follows:

PART 1201--PRACTICES AND PROCEDURES [AMENDED]

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

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


0
2. Section 1201.14 is revised to read as follows:


Sec.  1201.14  Electronic filing procedures

    (a) General. This section prescribes the rules and procedures by 
which parties and representatives to proceedings within the MSPB's 
appellate and original jurisdiction may file and receive documents 
electronically.
    (b) System for electronic filing. (1) The MSPB's e-Appeal system is 
the exclusive system for electronic filing (e-filing) with the MSPB. 
Except as specifically provided, the MSPB will not accept pleadings 
filed by email. The link to e-Appeal is available at the MSPB's website 
(https://www.mspb.gov).
    (2) e-Appeal is a closed system that collects and maintains records 
as part of an MSPB system of records and is subject to the provisions 
of the Privacy Act of 1974. Access to cases in e-Appeal is limited to 
the parties participating in a Board proceeding who have registered as 
e-filers with the MSPB, and authorized individuals providing legal 
support to designated representatives.
    (c) Matters subject to electronic filing. Subject to the 
registration requirement of paragraph (e) of this section, parties and 
representatives may use e-filing to do any of the following:
    (1) File any pleading, including a new appeal, in any matter within 
the MSPB's appellate jurisdiction (Sec.  1201.3);
    (2) File any pleading, including a new complaint, in any matter 
within the MSPB's original jurisdiction (Sec.  1201.2);
    (3) File a petition for enforcement of a final MSPB decision (Sec.  
1201.182);
    (4) File a request for attorney fees (Sec.  1201.203);
    (5) File a request for compensatory, consequential, or liquidated 
damages (Sec.  1201.204);
    (6) Designate a representative, revoke such a designation, or 
change such a designation (Sec.  1201.31);
    (7) Notify the MSPB of a change in contact information such as 
address (geographic or email) or telephone number; or
    (8) Receive a requested subpoena from the Board for issuance to a 
witness (Sec.  1201.83).
    (d) Matters excluded from e-filing. E-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 on a witness (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 intervene or participate as an amicus curiae 
or file a brief as amicus curiae pursuant to Sec.  1201.34.
    (e) Registration as an e-filer.
    (1) The exclusive means to register as an e-filer is to follow the 
instructions at e-Appeal using a unique email address.
    (2) Registration as an e-filer constitutes consent to accept 
electronic service of pleadings filed by other e-

[[Page 67057]]

filers and documents issued by the MSPB. No one may electronically file 
a new appeal or a pleading with the MSPB, or view the case record in an 
assigned appeal, unless registered as an e-filer.
    (3) Registration as an e-filer applies to all MSPB proceedings with 
which the e-filer is associated in their e-Appeal role (appellant, 
appellant representative, or agency representative). If an individual 
requires more than one e-Appeal role (e.g., appellant and appellant 
representative), they must register for each role separately using a 
different email address.
    (4) All notices, orders, decisions, and other documents issued by 
the MSPB, as well as all pleadings filed by parties, will be made 
available for viewing and downloading at e-Appeal. Access to documents 
at e-Appeal is limited to the parties and representatives who are 
registered e-filers in the appeals in which they were filed.
    (5) Agency representatives and appellant attorney representatives 
must register as e-filers.
    (6) Each e-filer must promptly update their e-Appeal profile and 
notify the MSPB and other participants of any change in their address, 
telephone number, or email address by filing a pleading in each pending 
proceeding with which they are associated.
    (7) An appellant or an appellant non-attorney representative may 
withdraw their registration as an e-filer pursuant to requirements set 
forth in e-Appeal policies posted to the MSPB's website. Such 
withdrawal means that, effective upon the MSPB's processing of a proper 
withdrawal, pleadings and MSPB documents will no longer be served on 
that person electronically and that person will no longer have 
electronic access to their case records through e-Appeal. A withdrawal 
of registration as an e-filer may preclude future re-registering as an 
e-filer.
    (f) Pleadings by e-filers. Agency representatives and appellant 
attorney representatives must file all pleadings using e-Appeal, except 
those pleadings excluded from e-filing by paragraph (d) of this 
section. A pleading, or any part thereof, filed by non-electronic 
means, i.e., via postal mail, facsimile, or personal or commercial 
delivery, may be rejected.
    (g) Agency Initial Contacts. (1) Agencies are required to designate 
a specific individual as an initial agency representative to whom the 
Board will serve a copy of an appeal when it is docketed. Agency 
initial contacts are responsible for monitoring case activity regularly 
at e-Appeal.
    (2) Agency initial contacts must be designated pursuant to 
requirements set forth in e-Appeal policies posted to the MSPB's 
website.
    (h) Form of electronic pleadings--(1) Electronic formats allowed. 
E-Appeal accepts numerous electronic formats, including word-processing 
and spreadsheet formats, Portable Document Format (PDF), and image 
files (files created by scanning). A list of formats allowed is set 
forth in e-Appeal policies posted to the MSPB's website. Pleadings 
filed via e-Appeal must be formatted so that they will print on 8\1/2\-
inch by 11-inch paper in portrait orientation. Parties are responsible 
for reviewing all pleadings to confirm legibility and to minimize the 
inclusion of nonrelevant personally identifiable information.
    (2) Requirements for pleadings with electronic attachments. An e-
filer who uploads supporting documents, in addition to the document 
that constitutes the primary pleading, must identify each attachment, 
either by bookmarking the document using e-Appeal, or by uploading the 
supporting documents in the form of one or more PDF files in which each 
attachment is bookmarked. Bookmark names must comply with requirements 
set forth in e-Appeal policies posted to the MSPB's website and include 
information such as a brief descriptive label with dates (e.g., ``Oct. 
1, 2021--Decision Notice'').
    (3) Submission of audio and video evidence. Audio and video 
evidence must be submitted according to the formatting and submission 
requirements set forth in e-Appeal policies posted to the MSPB's 
website.
    (i) Service of electronic pleadings and MSPB documents. (1) When 
MSPB documents are issued or when parties e-file any pleadings, e-
Appeal will send an email notification to other parties who are e-
filers. When using e-Appeal to file a pleading, e-filers will be 
notified of all documents that must be served by non-electronic means, 
and they must certify that they will serve all such documents no later 
than the first business day after the electronic submission.
    (2) Delivery of email can encounter failure points. E-filers are 
responsible for ensuring that email from mspb.gov is not blocked by 
filters.
    (3) E-filers are responsible for monitoring case activity regularly 
at e-Appeal to ensure that they have received all case-related 
documents.
    (j) Documents requiring a signature. Electronic documents filed by 
an e-filer pursuant to this section shall be deemed to be signed by the 
e-filer for purposes of any regulation in part 1201, 1203, 1208, or 
1209 of this chapter that requires a signature.
    (k) Affidavits and declarations made under penalty of perjury. E-
filers may submit electronic pleadings in the form of declarations made 
under penalty of perjury under 28 U.S.C. 1746, as described in appendix 
IV to this part. If the declarant is someone other than the e-filer, a 
signed affidavit or declaration should be uploaded as an image file or 
with an acceptable digital signature that complies with requirements 
set forth in e-Appeal policies posted to the MSPB's website.
    (l) Date electronic documents are filed and served. (1) As provided 
in Sec.  1201.4(l) of this part, the date of filing for pleadings filed 
via e-Appeal is the date of electronic submission. All pleadings filed 
via e-Appeal 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 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.
    (2) MSPB documents served electronically on e-filers are deemed 
received on the date of electronic transmission.
    (m) Authority of MSPB to regulate e-filing. (1) A judge or the 
Clerk of the Board may issue orders regulating the method of 
submissions for a particular period or particular submissions.
    (2) A judge or the Clerk of the Board may require that any document 
filed electronically be submitted in non-electronic form and bear the 
written signature of the submitter.
    (3) The MSPB may order any party or authorized individual to cease 
participation as an e-filer or access to e-Appeal in circumstances that 
constitute a misuse of the system or a failure to comply with law, 
rule, regulation, or policy governing use of a U.S. government 
information system.
    (4) MSPB reserves the right to revert to traditional methods of 
service. The MSPB may serve documents via traditional means--postal 
mail, facsimile, commercial or personal delivery--at its discretion. 
Parties and their representatives are responsible for ensuring that the 
MSPB always has their current postal mailing addresses, even when they 
are e-filers.

[[Page 67058]]

Sec.  1201.24  [Amended]

0
3. Amend Sec.  1201.24 as follows:
0
a. By removing from the third sentence in paragraph (a) introductory 
text the words ``in electronic form'' and adding in their place 
``electronically'';
0
b. By removing from paragraph (a)(1) the words ``and telephone number'' 
and adding in their place ``telephone number, and email address'';
0
c. By removing from paragraph (a)(6) the words ``and telephone number'' 
and adding in their place ``telephone number, and email address'';
0
d. By removing from paragraph (a)(9) the words ``the Board's e-Appeal 
site (https://e-appeal.mspb.gov)'' and adding in their place ``e-
Appeal''; and
0
e. By removing from paragraph (c) the words ``the e-Appeal site 
(https://e-appeal.mspb.gov)'' and adding in their place ``e-Appeal'' 
and by removing the words ``Board's Web site'' and adding in their 
place ``MSPB's website''.

0
4. Revise Sec.  1201.26 to read as follows:


Sec.  1201.26  Service of Pleadings and Response

    (a) Service--(1) Service by the Board. The appropriate office of 
the Board will notify each party to the proceeding that a new appeal 
has been docketed and will attach to the initial order in the 
proceeding a certificate of service, consisting of a list of the 
parties to the proceeding or their designated representatives.
    (2) Service by the parties. The parties must serve on each other 
one copy of each pleading, as defined by Sec.  1201.4(b), and all 
documents submitted with it, except for the appeal. They may do so by 
electronic filing in accordance with Sec.  1201.14, postal mail, 
facsimile, or commercial or personal delivery. Documents and pleadings 
must be served on each party and each representative. A certificate of 
service stating how and when service was made must accompany each 
pleading. The parties and their representatives must notify the 
appropriate Board office and one another, in a pleading, of any changes 
in their address, telephone number, or email address.
    (b) Submission of documents. Pleadings and attachments filed via 
postal mail, facsimile, or commercial or personal delivery must be 
filed on 8\1/2\-inch by 11-inch paper. This requirement enables the 
Board to comply with standards established for U.S. courts. Paper 
pleadings and attachments may not contain binders, folders, staples, 
paper clips, or notes adhered to pages. Such items will be removed and 
not included in the record, or the filing may be rejected. Documents 
may not be submitted on an electronic media storage device such as a 
Compact Disc (CD), Digital Video Disc (DVD), or flash drive. Parties 
are responsible for reviewing all pleadings to confirm legibility and 
to minimize the inclusion of nonrelevant personally identifiable 
information. Pleadings filed via e-Appeal must adhere to the formatting 
and filing requirements set forth in Sec.  1201.14(h).
    (c) Submission of audio and video evidence. Audio and video 
evidence must be submitted according to the formatting and submission 
requirements set forth in policies posted to the MSPB's website.

Appendix II to Part 1201--[Amended]

0
5. Amend appendix II to part 1201 by:
0
a. Removing the second sentence of the introductory text; and
0
b. Removing from paragraph 3a the words ``26 Federal Plaza, Room 3137-
A, New York, New York 10278-0022, Facsimile No.: (212) 264-1417'' and 
adding in their place ``1601 Market Street, Suite 1700, Philadelphia, 
PA 19103, Facsimile No.: (215) 597-3456''.

Jennifer Everling,
Acting Clerk of the Board.
[FR Doc. 2023-21272 Filed 9-28-23; 8:45 am]
BILLING CODE 7400-01-P