[Federal Register Volume 89, Number 174 (Monday, September 9, 2024)]
[Rules and Regulations]
[Pages 72957-72966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19933]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 174 / Monday, September 9, 2024 / 
Rules and Regulations  

[[Page 72957]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1200, 1201, 1203, and 1209


Organization and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule.

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

SUMMARY: This interim final rule updates adjudicatory and operational 
regulations of the Merit Systems Protection Board (MSPB or Board) to 
increase efficiency in processing of MSPB appeals, as well as to 
address potential flaws in its prior regulations.

DATES: This interim final rule is effective October 7, 2024. Comments 
must be received on or before November 8, 2024.

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 commenters use email to submit 
comments if possible. Submission of comments by email will assist the 
MSPB to process comments and speed publication of a final rule.
    Fax: (202) 653-7130. Comments submitted by fax should be addressed 
to Gina K. Grippando, Clerk of the Board, and contain a subject line 
indicating that the submission contains comments concerning the MSPB's 
interim final rule.
    Mail or other commercial delivery: Comments submitted by mail 
should be addressed to Gina K. Grippando, Clerk of the Board, Merit 
Systems Protection Board, 1615 M Street NW, Washington, DC 20419.
    Hand delivery or courier: Comments submitted by hand delivery or 
courier should be addressed to Gina K. Grippando, 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., excluding Federal holidays.
    Instructions: As noted above, the MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
made available online at the Board's website, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information or other information the 
disclosure of which is restricted by law. Those desiring to submit 
anonymous comments must submit comments 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: Gina K. Grippando, 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: 

I. Background

    The MSPB commenced its last comprehensive review of its regulations 
in January 2011, which concluded with the issuance of a final rule 
amending its regulations in October 2012. In May 2019, the MSPB 
initiated a new review of its regulations to further improve its 
adjudications and operations. The MSPB's review process began with a 
solicitation for suggested revisions from its internal offices. The 
submissions were then reviewed by an internal working group, which 
worked to develop draft amendments to existing regulations based on the 
submissions.
    Following restoration of the Board's quorum of members in March 
2022, the draft amendments prepared by the internal working group were 
then evaluated by the Board members, after which time they were revised 
in accordance with the processing goals of the Board and prepared for 
issuance.
    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 also requests additional comments on any other aspect of its 
regulations that stakeholders or other interested individuals feel need 
amending. 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 the 
MSPB

Part 1200--Board Organization

Subpart A--General
Section 1200.3 How the Board Members Make Decisions
    This amendment modifies the authority of Board members or Board 
staff to take certain actions when the Board is unable to act due to 
vacancies, recusals, or other reasons. During the Board's inquorate 
status between 2017 and 2022, the Board encountered numerous scenarios 
which under existing regulation or policy required Board vote, but 
which were unable to be processed without a quorum. These included 
scenarios such as decisions finalizing settlements of appeals reached 
after an initial decision had issued, or requests for further 
development of the record by an administrative judge after an initial 
decision had issued. The Board is implementing this modification in 
order to expedite processing in certain scenarios in the event that it 
is again unable to act due to a loss of quorum in the future. Under the 
new regulation, a lone Board member may be able to perform certain of 
these tasks, and in the event the Board lacks any confirmed members, 
MSPB staff may be allowed to perform the tasks to the limited extent 
necessary to facilitate final decision-

[[Page 72958]]

making by a future quorum. Additionally, the new regulation addresses 
the Board's decision-making authority when members of the Board are 
unable to reach a majority decision due to vacancies, recusals, or 
other reasons.
Section 1200.5 Conduct Policy
    This addition to the MSPB's Board Organization regulations reflects 
the Board's need to issue a policy prohibiting abusive conduct and 
filings from individuals during the pendency or after the conclusion of 
an appeal. This policy will benefit all parties by ensuring that 
appeals are adjudicated efficiently and respectfully.

Part 1201--Practices and Procedures

Subpart A--Jurisdiction and Definitions
Section 1201.3 Appellate Jurisdiction
    This amendment corrects an errant reference to 5 CFR 1201.154. The 
regulation is intended to instead reference the Board's authority to 
review grievance decisions pursuant to 5 CFR 1201.155.
Subpart B--Procedures for Appellate Cases
Section 1201.22 Filing an Appeal and Responses to Appeals
    This amendment clarifies that the examples listed within the 
regulation are not meant to be binding interpretations of the 
regulation, and they are instead only meant to be illustrative of 
potential applications of the regulation. The Board believes this 
change will provide flexibility in determinations regarding good cause 
to waive untimeliness.
Section 1201.23 Computation of Time
    This amendment clarifies the Board's discretion to waive its filing 
deadlines due to events that broadly affect the ability of parties to 
file pleadings and/or the Board's ability to serve issuances. The 
amendment does not otherwise alter the Board's current ability to 
exercise discretion when determining when to waive filing deadlines in 
individual appeals, and instead only reflects the Board's intent to 
potentially alter deadlines for all pending appeals when events 
transpire that broadly affect the Board's filing systems, such as 
technical outages or government shutdowns.
Section 1201.33 Federal Witnesses
    This amendment makes a small grammatical modification to the 
existing regulation.
Section 1201.41 Judges
    This amendment clarifies that MSPB administrative judges may only 
hold a hearing if requested by an appellant. This modification 
reemphasizes that the right to request a hearing belongs solely to 
appellants, and that neither administrative judges nor agencies may 
order a hearing if the appellant does not wish to have a hearing.
Section 1201.56 Burden and Degree of Proof
    This amendment clarifies which types of Office of Personnel 
Management decisions may be appealed. The prior version of the 
regulation incorrectly suggested that appeals may only come from 
reconsideration decisions from the Office of Personnel Management 
(OPM), and it did not recognize that pursuant to longstanding Board 
case law, initial decisions from OPM may also be considered final 
appealable decisions, when OPM refuses or improperly fails to issue a 
final decision. This modification reflects the Board's decision in 
Okello v. Office of Personnel Management, 120 M.S.P.R. 498 (2014).
Section 1201.72 Explanation and Scope of Discovery
    The amendments to this section clarify that discovery during an 
MSPB appeal may involve individuals who are not parties to the appeal. 
The amendment further removes reference to the Federal Rules of Civil 
Procedure, reflecting the Board's desire to establish its own discovery 
rules and limitations to better align with its statutory and regulatory 
time limits for processing appeals.
Section 1201.73 Discovery Procedures
    This amendment modifies the Board's discovery procedures with 
respect to how parties serve discovery requests and responses, as well 
as how parties resolve discovery disputes. The amendment eliminates the 
need to request permission to serve discovery responses electronically. 
It also provides parties with additional time before needing to file a 
motion to compel, in order to reduce the number of discovery disputes 
between parties. Finally, it puts limitations on the number of document 
requests and requests for admission that may be issued, which are also 
aimed at reducing discovery disputes and expediting the processing of 
appeals.
Section 1201.81 Requests for Subpoenas
    This amendment provides notice of which requirements must be met to 
obtain a subpoena. The Board has received multiple requests for the 
issuance of subpoenas from parties who have not complied with all 
requirements. The Board is making this amendment to ensure parties are 
aware of the requirements before making a subpoena request.
Section 1201.82 Motions To Quash Subpoenas
    This amendment modifies the Board's procedures regarding the filing 
and service of motions to quash a subpoena. The Board is amending its 
procedures to facilitate the filing of such motions by nonparties, who 
are not able to otherwise access the Board's electronic filing system 
to file such motions themselves. Administrative judges will now have 
discretion to provide methods to nonparties to electronically file 
motions to quash subpoenas without needing to utilize the Board's 
electronic filing system.
Section 1201.83 Serving Subpoenas
    This amendment clarifies that any party who desires a non-federal 
employee to serve as a witness must still comply with Federal statutes 
governing fees and expenses for the witness.
Section 1201.84 Proof of Service
    This amendment modifies the Board's procedures regarding service of 
subpoenas to allow service by any method approved by applicable state 
law.
Section 1201.85 Enforcing Subpoenas
    This amendment modifies the Board's procedures regarding how a 
party may enforce a subpoena for an individual who fails to comply with 
its terms. The amendment eliminates the ability to file an oral motion 
to enforce a subpoena, and it provides a mechanism for allegedly 
noncomplying parties to file a written response to a motion to enforce 
a subpoena. The amendment will further develop a written record 
regarding a subpoena, which will facilitate enforcement of subpoenas in 
Federal court against noncomplying individuals.
Section 1201.113 Finality of Decision
    This amendment clarifies the finality date of initial decisions 
after a party requests an extension of the deadline to file a petition 
for review. Under the current statutory and regulatory scheme, the 
Board is authorized to extend the deadline for a party to file a 
petition for review of an initial decision past the 30-day deadline. 
However, after such a request for extension is granted, a petition for 
review is not always filed, leading to potential uncertainty as to

[[Page 72959]]

whether the finality date of an initial decision is the original 35-day 
date set by the initial decision, or the extended petition for review 
deadline date granted by the Board. Consistent with current Board 
practice, the regulation now reflects that, if no petition for review 
is filed by the granted extension date (assuming the extension request 
is granted), the initial decision of the judge will become the Board's 
final decision upon the expiration of the extended time limit, and 
judicial appeal deadlines likewise run from the date of expiration.
Subpart C--Petitions for Review of Initial Decisions
Section 1201.114 Petition for Review--Content and Procedure
    This amendment sets forth multiple changes designed to simplify the 
processing of petitions for review. It eliminates the ability for 
parties to file cross petitions for review, which will simplify the 
petition for review process by encouraging parties to raise all issues 
that they wish to pursue by the initial petition for review deadline. 
The amendment also provides further explanation as to when and how 
parties may file submissions other than an initial petition for review, 
a response to a petition for review, or a reply to a response. Finally, 
the amendment imposes a requirement that the parties certify that their 
pleading lengths comply with the limits imposed in the regulation.
    The amendments will facilitate the processing of petitions for 
review by ensuring that all possible issues are put forward for 
consideration before the Board in an expeditious fashion.
Section 1201.115 Criteria for Granting Petition for Review
    This amendment reflects the elimination of cross petitions for 
review, referenced in the amended Section 1201.114.
Section 1201.116 Compliance With Orders for Interim Relief
    This amendment simplifies the Board's procedures regarding interim 
relief. Under the prior version of the regulation, parties were 
frequently confused by the distinction between a challenge to an 
agency's certification of compliance with an interim relief order and 
an allegation of noncompliance with an initial decision that ordered 
interim relief. The amendment will further simplify the processing of 
challenges to interim relief by imposing a requirement that the agency 
provide evidence of interim relief when filing a petition for review. 
However, the amendment does not alter, contradict, and/or overrule any 
requirements regarding when interim relief may be required, including, 
but not limited to, the Board's recent decision in Stewart v. 
Department of Transportation, 2023 MSPB 18.
Section 1201.117 Board Decisions; Procedures for Review or Reopening
    This amendment reflects the clarification to Section 1201.118 that 
the Board retains sole discretion to reopen decisions (versus vesting 
in the parties a right to request reopening).
Section 1201.118 Board Reopening of Final Decisions
    This amendment clarifies that parties do not have the right to 
request reopening an appeal under the Board's procedures, and further 
do not have the right to a response from the Board to any request for 
reopening. This amendment further clarifies that any response to a 
request for reopening from the Office of the Clerk of the Board does 
not constitute a final order or decision of the Board. The Board is 
making this modification in light of recent decisions from the U.S. 
Court of Appeals for the Federal Circuit (Federal Circuit) that 
questioned whether letters from the Office of the Clerk of the Board in 
response to requests to reopen an appeal constituted a final order or 
decision of the Board subject to judicial review.
Subpart E--Procedures for Cases Involving Allegations of Discrimination
Section 1201.155 Requests for Review of Final Grievance or Arbitrator's 
Decisions
    This amendment is primarily made to the title of the section and is 
made to clarify that requests for review of decisions arising out of 
negotiated grievance procedures are not limited to decisions issued by 
arbitrators.
Subpart F--Enforcement of Final Decisions and Orders
Section 1201.182 Petition for Enforcement
    This amendment reflects the longstanding requirement that all 
submissions related to the issuance of a final Board decision or order 
issued pursuant to 5 CFR 1201.155 must be filed with the Office of the 
Clerk of the Board. On occasion, parties send such submissions to other 
offices within the Board, which can lead to processing delays for the 
submissions.
Section 1201.183 Procedures for Processing Petitions for Enforcement
    This amendment makes multiple modifications to the Board's 
procedures for petitions for enforcement to simplify and expedite the 
processing of petitions for enforcement. The amendment makes clear that 
only settlement agreements that have been entered into the record for 
purposes of enforcement will be enforceable by the Board, to dispel any 
notion that the Board can enforce the terms of a settlement agreement 
that was not entered into the record before the Board. The amendment 
also requires agencies to provide the Board with an email address where 
pleadings can be served, as the Board has been notified on occasion 
that agencies were not receiving submissions in petitions for 
enforcement due to the departure of staff.
    The amendment also clarifies that discovery in petitions for 
enforcement is limited to issues regarding enforcement, by removing the 
phrase ``regular discovery procedures,'' which led parties to believe 
that discovery on issues outside of enforcement could be conducted. The 
amendment further specifies what a noncomplying party must submit to 
demonstrate compliance after a finding of noncompliance. Under the 
prior version of the regulation, parties often submitted evidence of 
purported compliance without explaining why the evidence demonstrated 
compliance, making it difficult for the Board to determine whether 
compliance was reached. Finally, the amendment specifies that petitions 
seeking attorney fees for work on enforcement proceedings will be 
governed by the Board's regulation covering attorney fees at 5 CFR 
1201.203(d).
Subpart H--Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable) and Damages (Consequential, 
Liquidated, and Compensatory)
Section 1201.204 Proceedings for Consequential, Liquidated, or 
Compensatory Damages
    This amendment primarily rearranges the prior 1201.204 in order to 
make the process more easily understood. The amendment also eliminates 
the requirement that parties make a request for consequential, 
liquidated, or compensatory damages by the end of the pre-hearing 
conference. The prior requirement that the parties make requests for 
consequential, liquidated, or compensatory damages by the end of the 
pre-hearing conference unnecessarily risked precluding the parties from 
raising such claims, and it created potential confusion about their 
option to pursue them in addendum proceedings. Finally, the amendment

[[Page 72960]]

amends the regulation to remain consistent with the modification made 
to 5 CFR 1201.41 that only appellants may request a hearing for 
damages, and that an administrative judge cannot force an appellant to 
have a hearing for damages without the appellant's consent.

Part 1203--Procedures for Review of Rules and Regulations of the Office 
of Personnel Management

Section 1203.12 Granting or Denying the Request for Regulation Review
    This amendment modifies the prior 1203.12 to better communicate 
what action the Board will take when it grants a request to review an 
OPM regulation. It is the Board's view that the prior version of the 
regulation focused too heavily on what the Board includes in its 
orders, and it did not sufficiently communicate the Board's role and 
functions during the regulation review process. The amended regulation 
explains that the Board's role is to determine whether any regulation 
would require, on its face or as implemented, an individual to commit a 
prohibited personnel practice.
Section 1203.13 Filing Pleadings
    This amendment reduces the number of filings that must be sent to 
the Board to properly file a request to review an OPM regulation, and 
it allows requests to be filed with the Board electronically. Both 
modifications are being made in order to aid the Board's ongoing 
transition away from maintenance of paper files.
Section 1203.14 Serving Documents
    This amendment modifies the Board's procedures to allow requests to 
review OPM regulations to be filed with the Board and served on other 
parties electronically, in order to aid the Board's ongoing transition 
away from maintenance of paper files.
Section 1203.21 Final Order of the Board
    This amendment clarifies that, consistent with Federal Circuit case 
law, the Board's decision in a regulation review case will be 
considered a final decision of the Board subject to judicial review if 
the Board grants a request to review a regulation and considers the 
merits of the request. The Board previously relied on 5 CFR 1201.113 as 
its authority for the finality of decisions in regulation review 
matters, but upon further study of the matter, the Board believes that 
section 1201.113 should not serve as the authority for finality because 
that section applies to petitions for review in appellate cases, 
whereas the Board's regulation review procedures arise under its 
original jurisdiction. The amendment will specify which decisions in 
regulation review matters can be considered final, appealable decisions 
of the Board, and will avoid confusion by not treating the matter like 
a case under the Board's appellate jurisdiction.

Part 1209--Practices and Procedures for Appeals and Stay Requests of 
Personnel Actions Allegedly Based on Whistleblowing or Other Protected 
Activity

Subpart A--Jurisdiction and Definitions
Section 1209.2 Jurisdiction
    This amendment corrects an errant reference to the incorrect 
statutory section.
Section 1209.4 Definitions
    This amendment corrects an errant reference to the incorrect 
regulatory definition.

III. Effective Date of Amendments

    The amendments described above will go into effect on October 7, 
2024.

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 by 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

    The 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 Parts 1200, 1201, 1203, and 1209

    Administrative practice and procedure.

    For the reasons set forth above, 5 CFR parts 1200, 1201, 1203, and 
1209 are amended as follows:

PART 1200--BOARD ORGANIZATION

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

    Authority: 5 U.S.C. 1201 et seq., unless otherwise noted.


0
2. Revise Sec.  1200.3 to read as follows:


Sec.  1200.3  How the Board members make decisions.

    (a) The three Board members make decisions in all cases by majority 
vote except in circumstances described in paragraph (b) of this section 
or as otherwise provided by law.
    (b) When there are at least two Board members and, due to a 
vacancy, recusal or other reasons, the Board members are unable to 
decide any case by majority vote, the decision, recommendation, or 
other order under review may be deemed the final decision or order of 
the Board. The Chairman of the Board may direct the issuance of an 
order consistent with this paragraph (b).
    (c) When due to vacancies, recusals, or other reasons, only one 
Board member is able to act, the Board

[[Page 72961]]

member may direct the following types of matters to an administrative 
judge or other official:
    (1) A party's request to withdraw his/her appeal or petition for 
review for final disposition;
    (2) A newly raised claim that was not previously adjudicated in the 
appeal currently under review for docketing and adjudication;
    (3) A settlement for possible final disposition, including a 
determination of whether the parties actually reached a settlement, 
understood its terms, and agreed whether it is to be enforceable by the 
Board; or
    (4) A matter for further development of the record.
    (d) When due to vacancies, recusals, or other reasons no Board 
member is able to act, the Clerk of the Board may direct the following 
types of matters to an administrative judge or other official:
    (1) A party's request to withdraw his/her appeal or petition for 
review for final disposition;
    (2) A newly raised claim that was not previously adjudicated in the 
appeal currently under review for docketing and adjudication;
    (3) A settlement for possible final disposition, including a 
determination of whether the parties actually reached a settlement, 
understood its terms, and agreed whether it is to be enforceable by the 
Board; or
    (4) A matter for further development of the record.
    (e) Decisions and orders issued pursuant to paragraph (b) of this 
section shall not be precedential.

0
3. Add Sec.  1200.5 to subpart A to read as follows:


Sec.  1200.5  Conduct policy.

    The Board may issue a policy governing the conduct of the parties 
for all appeals before the Board and of parties and any other 
individuals in communications with the Board. Such policy may include 
rules regarding prohibited conduct and vexatious filing by a party, 
witness, representative, or other individual, as well as potential 
sanctions or other consequences for violations of the policy. Any 
policy established pursuant to this regulation will be made publicly 
available via the Board's website (www.mspb.gov).

PART 1201--PRACTICES AND PROCEDURES

0
4. 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
5. In Sec.  1201.3, revise the last sentence in paragraph (c)(3) to 
read as follows:


Sec.  1201.3  Appellate jurisdiction.

* * * * *
    (c) * * *
    (3) * * * The request must be filed with the Clerk of the Board in 
accordance with Sec.  1201.155.

0
6. In Sec.  1201.22, revise the last sentence of paragraph (b)(3) 
introductory text to read as follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

* * * * *
    (b) * * *
    (3) * * * The following examples, while not controlling, illustrate 
potential application of this rule:
* * * * *

0
7. In Sec.  1201.23, redesignate the introductory text as paragraph (a) 
introductory text and examples 1 and 2 as paragraphs (a)(1) and (2), 
respectively, add a paragraph (a) heading, and add paragraph (b).
    The additions read as follows:


Sec.  1201.23  Computation of time.

    (a) Computation of deadlines. * * *
* * * * *
    (b) Changes to the computation of deadlines. At MSPB's discretion, 
the computation of deadlines may be changed due to events that broadly 
affect the ability of parties with appeals before MSPB to file 
pleadings and/or MSPB's ability to serve issuances, such as MSPB system 
outages or government shutdowns. In these circumstances, any 
information concerning changes to the computation of deadlines will be 
addressed by MSPB through a press release posted to MSPB's website.

0
8. In Sec.  1201.33, revise the third sentence of paragraph (a) to read 
as follows:


Sec.  1201.33  Federal witnesses.

    (a) * * * When a desired witness is employed by an agency that is 
not a party to the Board proceeding, the requesting party may avail 
itself of the provisions of Sec. Sec.  1201.81 through 1201.85 
regarding subpoenas to ensure the attendance of the witness.* * *
* * * * *

0
9. In Sec.  1201.41, revise paragraph (b)(5) and amend paragraph (b)(6) 
by removing the words ``as appropriate,'' and adding in their place 
``by appropriate method,'' and add paragraph (c)(2)(iii).
    The revision and addition read as follows:


Sec.  1201.41  Judges.

* * * * *
    (b) * * *
    (5) Grant an appellant's request for a hearing;
* * * * *
    (c) * * *
    (2) * * *
    (iii) The judge may rescind a settlement agreement and reinstate 
the underlying matter on appeal in accordance with Sec.  
1201.183(a)(8)(ii).

0
10. In Sec.  1201.56, revise paragraph (b)(2)(ii) to read as follows:


Sec.  1201.56  Burden and degree of proof.

* * * * *
    (b) * * *
    (2) * * *
    (ii) In appeals from final decisions of the Office of Personnel 
Management (OPM) involving retirement benefits, if the appellant filed 
the application, the appellant has the burden of proving, by a 
preponderance of the evidence (as defined in Sec.  1201.4(q)), 
entitlement to the benefits.
* * * * *

0
11. In Sec.  1201.72, revise the first sentence in paragraph (a), the 
first sentence in paragraph (c), and revise paragraph (d)(2) to read as 
follows:


Sec.  1201.72  Explanation and scope of discovery.

    (a) * * * Discovery is the process, apart from the hearing, by 
which a party may obtain relevant information, including the 
identification of potential witnesses, from a party or nonparty, that 
the other party or nonparty has not otherwise provided.* * *
* * * * *
    (c) * * * Parties may use one or more of the following methods for 
obtaining discovery from parties or nonparties: written 
interrogatories, depositions, requests for production of documents or 
things for inspection or copying, and requests for admission. * * *
    (d) * * *
    (2) The party seeking discovery has had sufficient opportunity 
through discovery in the action to obtain the information sought; or
* * * * *

0
12. In Sec.  1201.73:
0
a. Revise the last sentence of paragraph (b) and revise paragraph 
(d)(3);
0
b. Redesignate paragraphs (e)(2) and (3) as paragraphs (e)(4) and (5);
0
c. Add new paragraphs (e)(2) and (3); and
0
d. Revise the first sentence of the newly redesignated paragraph 
(e)(5).
    The revisions and additions read as follows:


Sec.  1201.73  Discovery procedures.

* * * * *

[[Page 72962]]

    (b) * * * Parties and nonparties may respond to discovery requests 
by electronic mail.
* * * * *
    (d) * * *
    (3)(i) Any motion for an order to compel or to issue a subpoena 
must be filed with the judge:
    (A) Within 20 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; or
    (B) Within 10 days of notice that a nonmoving party or nonparty 
provided an evasive or incomplete answer or response to a discovery 
request.
    (ii) A party may request an extension of the time limit to file a 
motion to compel with respect to any discovery dispute pursuant to 
Sec.  1201.55. 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.
    (e) * * *
    (2) Absent prior approval by the judge, requests for documents 
served by parties upon another party or nonparty may not exceed 25 in 
number, including all discrete subparts.
    (3) Absent prior approval by the judge, requests for admission 
served by parties upon another party or nonparty may not exceed 25 in 
number, including all discrete subparts.
* * * * *
    (5) Requests to exceed the limitations set forth in paragraphs 
(e)(1) through (4) of this section may be granted at the discretion of 
the judge.* * *

0
13. In Sec.  1201.81, amend paragraph (a) by revising the first and 
last sentences and amend paragraph (b) by revising the last sentence to 
read as follows:


Sec.  1201.81  Requests for subpoenas.

    (a) * * * Parties who have complied with 1201.73(c), as applicable, 
and wish to obtain subpoenas that would require the attendance and 
testimony of witnesses, or subpoenas that would require the production 
of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should 
file their motions for those subpoenas with the judge.* * * Subpoenas 
are not ordinarily required to obtain the attendance of Federal 
employees as witnesses because Federal agencies and their employees 
must comply with 5 CFR 5.4 and Sec.  1201.33.
    (b) * * * Each request must identify specifically the testimony, 
documents, or other evidence desired.
* * * * *

0
14. Revise Sec.  1201.82 to read as follows:


Sec.  1201.82  Motions to quash subpoenas.

    Any person to whom a subpoena is directed, or any party, may file a 
motion to quash or limit the subpoena. The motion must include reasons 
why compliance with the subpoena should not be required or the 
subpoena's scope should be limited. A party must file the motion with 
the judge and serve it on the other parties. A non-party must file the 
motion with the judge, who will enter the motion into the record and 
serve the motion on all parties. For purposes of this section, judges 
may provide a method by which nonparties may file the motion 
electronically, including by email, notwithstanding Sec.  1201.14(d). 
Any party may file a response to the motion within 10 days after the 
motion has been entered into the record, and the judge will specify the 
method of service of any such response upon a non-party.

0
15. In Sec.  1201.83, add paragraph (c) to read as follows:


Sec.  1201.83  Serving subpoenas.

* * * * *
    (c) A party requesting the presence of a non-federal employee 
witness must pay that witness' fees and travel expenses in accordance 
with 5 U.S.C. 1204(b)(3) and 28 U.S.C. 1821. Those fees must be paid or 
offered to the witness at the time the subpoena is served.

0
16. In Sec.  1201.84, amend paragraph (b) by removing the word ``or'', 
amend paragraph (c) by removing the period at the end and adding in its 
place ``, or'', and add paragraph (d).
    The addition reads as follows:


Sec.  1201.84  Proof of service.

* * * * *
    (d) By any other method that is in accordance with applicable State 
law.

0
17. Revise Sec.  1201.85 to read as follows:


Sec.  1201.85  Enforcing subpoenas.

    (a) If a person who has been served with a Board subpoena fails or 
refuses to comply with its terms, the party seeking compliance may file 
a written motion for enforcement with the judge. That party must 
present the document certifying that the subpoena was served and, 
except where the witness was required to appear before the judge, must 
submit an affidavit or sworn statement under 28 U.S.C. 1746 (see 
appendix IV) describing the failure or refusal to obey the subpoena. A 
written motion must be served upon the person who is alleged to be in 
noncompliance.
    (b) The person who is alleged to be in noncompliance may file a 
response within 10 days. A party must file the response with the judge 
and serve it on the other parties. Non-parties must file their response 
with the judge, who will enter the response into the record. The judge 
may waive Sec.  1201.14(d) to accept a nonparty's response by email. 
Any party may file a reply to the response within 10 days after the 
response has been entered into the record.
    (c) In ruling on a motion to quash, judges may rely on Fed.R.Civ.P. 
45 and applicable case law. Upon a finding by the judge of failure to 
obey a subpoena, the Board, in accordance with 5 U.S.C. 1204(c), may 
then ask an appropriate U.S. district court to enforce the subpoena. If 
the person who has failed or refused to comply with a Board subpoena is 
located in a foreign country, the U.S. District Court for the District 
of Columbia will have jurisdiction to enforce compliance, to the extent 
that a U.S. court can assert jurisdiction over an individual in the 
foreign country.
    (d) Upon application by the Special Counsel, the Board may seek 
court enforcement of a subpoena issued by the Special Counsel in the 
same manner in which it seeks enforcement of Board subpoenas, in 
accordance with 5 U.S.C. 1212(b)(3).

0
18. In Sec.  1201.113, revise paragraph (d) to read as follows:


Sec.  1201.113  Finality of decision.

* * * * *
    (d) Extensions. The Board may extend the time limit for filing a 
petition for review for good cause shown as specified in Sec.  
1201.114. If no petition for review is filed within the extended time 
limit, the initial decision of the judge will become the Board's final 
decision upon the expiration of the extended time limit.
* * * * *

0
19. In Sec.  1201.114:
0
a. Revise the section heading and paragraph (a) introductory text;
0
b. Remove paragraph (a)(2);
0
c. Redesignate paragraph (a)(3) as paragraph (a)(2) and revise it;
0
d. Redesignate paragraphs (a)(4) and (5) as paragraphs (a)(3) and (4);
0
e. Revise newly redesignated paragraph (a)(4), paragraph (b), the first 
sentence of paragraph (c), and paragraphs (e), (g), (h), and (k).
    The revisions read as follows:


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

    (a) Pleadings allowed. Pleadings allowed on review include a 
petition for review, which may be filed by either party, a response to 
a petition for review, and a reply to a response to a petition for 
review. Each party is limited to filing a single petition for review,

[[Page 72963]]

response to a petition for review, and reply to a response to a 
petition for review.
* * * * *
    (2) A response to a petition for review may respond only to the 
arguments and assertions raised in the petition for review and does not 
contend that the initial decision was incorrectly decided in whole or 
in part. A response to another party's petition for review must be 
filed separately from a party's own petition for review.
* * * * *
    (4) No pleading other than the ones described in this paragraph is 
permitted unless the party files a motion with and obtains leave from 
the Clerk of the Board. The motion must briefly describe the nature of 
and need for the requested pleading, i.e., the motion must identify the 
requested pleading and briefly explain why the requested pleading is 
important. If the record is closed, as defined in paragraph (k) of this 
section, the motion must also show that the requested pleading is new 
and material, as defined in Sec.  1201.115(a)(1) and (d), and that it 
was not readily available before the record closed. The party may not 
submit the requested pleading unless the Board issues an order granting 
the motion for leave. A filing characterized as a motion for leave that 
does not adhere to the above requirements will be rejected.
    (b) Contents of petition for review. A 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 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.  1201.59). A 
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. A petition for review filed by an agency should address the 
agency's compliance with any interim relief requirements and should 
contain a certification, as set forth in Sec.  1201.116(a).
    (c) * * * 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 for review. * * *
* * * * *
    (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), 
pertaining to an appellant's receipt of an 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. Any response to a petition for 
review must be filed within 25 days after the date of service of the 
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. For purposes of this section, Sec.  1201.23 
governs the computation of time.
* * * * *
    (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 timeliness motion 
may be included in the response to the petition for review or may be 
filed separately. The response to the timeliness motion will not extend 
the time provided by paragraph (e) of this section to respond to the 
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 pleading with an opportunity to show why it should not be 
dismissed or excluded as untimely.
    (h) Length limitations. A 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. A reply to a response to a 
petition for review is limited to 15 pages or 3750 words. A party 
relying on word count to adhere to the length limitation must include 
certification of the word count with their pleading. Argument formatted 
such that the length of the pleading cannot be determined may be 
rejected. 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. Length limitations may not be circumvented by including 
argument in attachments. Failure to comply with the length limitations 
set forth in this regulation, after sufficient opportunity to comply, 
may lead to dismissal of the petition for review. 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.
* * * * *
    (k) Closing the record. The record closes on expiration of the 
period for filing the last permissible pleading or the date on which 
the last permissible pleading is filed, whichever is earlier. Once the 
record closes, no additional argument or evidence may be filed without 
first requesting and receiving leave from the Clerk of the Board under 
paragraph (a)(4) of this section.
* * * * *

0
20. In Sec.  1201.115, revise the section heading and the introductory 
text to read as follows:


Sec.  1201.115  Criteria for granting petition for review.

    The Board normally will consider only issues raised in a timely 
filed petition for review. Situations in which the Board may grant a 
petition for review include, but are not limited to, a showing that:
* * * * *

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


Sec.  1201.116  Compliance with orders for interim relief.

    (a) Certification of compliance. (1) If the appellant was the 
prevailing party in the initial decision, and the decision granted the 
appellant interim relief, any petition for review filed by the agency 
must be accompanied by a certification

[[Page 72964]]

that the agency has complied with the interim relief order, either by:
    (i) Providing the required interim relief; or
    (ii) Satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and 
(B).
    (2) Evidence of its compliance must accompany its petition for 
review. Failure by an agency to provide the certification and evidence 
required by this section with its petition for review may result in the 
dismissal of the agency's petition for review.
    (b) Allegation of noncompliance in petition for review. If an 
appellant or an intervenor files a 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, the agency 
must submit evidence within 25 days of the date of service 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). The agency's 
evidence may be provided with any response to the petition for review 
or in a separate pleading.
    (c) Request for dismissal for noncompliance with interim relief 
order. If the agency files a petition for review and the appellant 
believes the agency has not provided 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, or within 25 days of the date 
upon which the appellant becomes aware that the agency has not 
provided, or has ceased to provide, interim relief. A copy of the 
request 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. Failure by an agency to provide the 
certification required by paragraph (a) of this section with its 
petition for review, or to provide evidence of compliance in response 
to a Board order, may result in the dismissal of the agency's petition 
for review.
    (d) 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.

0
22. In Sec.  1201.117, revise paragraph (a) introductory text to read 
as follows:


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

    (a) In any case that is reviewed, or reopened at the Board's 
discretion pursuant to Sec.  1201.118, the Board may:
* * * * *

0
23. 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. The 
parties have no right to request reopening and no right to a response 
from the Board on a request for reopening. Any response to a request 
for reopening from the Office of the Clerk of the Board does not 
constitute a final order or decision of the Board, and thus is not 
subject to judicial review under 5 U.S.C. 7703 or Sec.  1201.120.

0
24. In Sec.  1201.155, revise the section heading and add paragraph (g) 
to read as follows:


Sec.  1201.155  Requests for review of final grievance or arbitrator's 
decisions.

* * * * *
    (g) Petition for enforcement. A petition for enforcement of a final 
Board decision or order that was issued pursuant to paragraphs (a) 
through (f) of this section, should be filed with the Office of the 
Clerk of the Board and should otherwise comply with the requirements 
set forth in Sec.  1201.182(a).

0
25. In Sec.  1201.182, revise the second sentence of paragraph (a) to 
read as follows:


Sec.  1201.182  Petition for enforcement.

    (a) * * * The petition must be filed promptly with the regional or 
field office that issued the initial decision, or with the Office of 
the Clerk of the Board if the party is requesting enforcement of a 
final Board decision or order that was issued pursuant to Sec.  
1201.155; a copy of it must be served on the other party and that 
party's representative; and it must describe specifically the reasons 
the petitioning party believes there is noncompliance.* * *
* * * * *

0
26. In Sec.  1201.183, revise paragraphs (a) and (b) and add paragraph 
(g) to read as follows:


Sec.  1201.183  Procedures for processing petitions for enforcement.

    (a) Initial processing of a petition for enforcement. (1) When a 
party has filed a petition for enforcement of a final decision or order 
of the Board, or enforcement of a settlement agreement that has been 
entered into the Board's record for purposes of enforcement, the 
alleged noncomplying party must file one of the following within 15 
days of the date of service of the petition:
    (i) Evidence of compliance, including a narrative explanation of 
the calculation of back pay and other benefits, and supporting 
documents;
    (ii) Evidence and/or a statement of the compliance actions that are 
in process and/or remain to be taken, along with a schedule for 
accomplishing full compliance within a reasonable period; or
    (iii) A statement showing good cause for the failure to comply 
completely with the final decision or order of the Board, or with the 
terms of an applicable settlement agreement.
    (2) The party that filed the petition may respond to the alleged 
noncomplying party's submission within 10 days after the date of 
service of the submission. The parties must serve copies of their 
pleadings on each other as required under Sec.  1201.26(b)(2).
    (3) If a party files a petition for enforcement seeking compliance 
with a final Board decision or order, the alleged noncomplying party 
generally has the burden of proving its compliance 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 has 
been entered into the Board's record for purposes of enforcement, that 
party has the burden of proving the other party's breach of the 
settlement agreement by a preponderance of the evidence.
    (4) 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 final decision or 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 that it is has fully complied. The agency must 
further submit a current initial contact email address that is 
regularly checked to ensure receipt of all information regarding the 
allegations of compliance. The agency must advise the Board of

[[Page 72965]]

any subsequent change to the identity and/or location of the designated 
agency official during the pendency of any compliance proceeding. In 
the absence of this information, the Board will presume that the 
highest-ranking agency official who is not appointed by the President 
by and with the consent of the Senate, is charged with compliance.
    (5) Discovery may be pursued in accordance with the procedures set 
forth at Sec. Sec.  1201.71 through 1201.75, except that unless 
otherwise directed by the judge, initial discovery requests must be 
served no later than 15 days after the alleged noncomplying party files 
a response to the petition for enforcement.
    (6) The judge may convene a hearing to resolve compliance issues.
    (7) If the judge finds that the alleged noncomplying party has 
fully complied with the final Board decision or order at issue, or with 
the applicable settlement agreement entered into the Board's record for 
purposes of enforcement, he or she will issue an initial decision to 
that effect. That decision will be subject to the procedures for 
petitions for review by the Board under subpart C of this part, and 
subject to judicial review under Sec.  1201.120.
    (8) If the judge finds that the alleged noncomplying party has not 
complied, in whole or in part, with the final Board decision or order 
at issue, or with the applicable settlement agreement entered into the 
Board's record for purposes of enforcement, he or she will issue an 
initial decision:
    (i) Directing the noncomplying party to take the specific actions 
required by the final Board decision or order at issue, or required 
under the applicable settlement agreement entered into the Board's 
record for purposes of enforcement; or
    (ii) Upon the request of the party seeking compliance where the 
judge finds a material breach, rescinding the applicable settlement 
agreement and reinstating the underlying matter on appeal.
    (9) An initial decision issued under paragraph (a)(8) of this 
section will be subject to the procedures for petitions for review by 
the Board under subpart C of this part, but not subject to judicial 
review under Sec.  1201.120.
    (10) A copy of an initial decision finding full or partial 
noncompliance with a final Board decision or order, or a settlement 
agreement that has been entered into the Board's record for purposes of 
enforcement will be served on the designated agency official.
    (b) Processing after a finding of noncompliance that directs 
specific action. (1) If an initial decision described under paragraph 
(a)(8)(i) of this section is issued, the noncomplying party must do the 
following:
    (i) To the extent that the noncomplying party agrees to take some 
or all of the actions required by the initial decision, the party must, 
within the time limit for filing a petition for review under Sec.  
1201.114(e), provide the Clerk of the Board with a statement of 
compliance certifying 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. The party seeking compliance may file 
evidence and argument in response to any statement of compliance within 
20 days of the date of service of the statement of compliance.
    (ii) To the extent that the noncomplying party declines to take 
some or 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.
    (iii) A statement of compliance and a petition for review, as 
described in the two preceding paragraphs, may be filed separately or 
as part of a single pleading.
    (2) If an initial decision described under paragraph (a)(8)(i) of 
this section is issued, the party seeking compliance may also file a 
petition for review of an initial decision's finding of partial 
compliance with the Board's final decision or order, or with an 
applicable settlement agreement entered into the Board's record for 
purposes of enforcement.
* * * * *
    (g) Requests for attorney fees. A request for attorney fees related 
to a petition for enforcement will be governed by Sec.  1201.203 and 
must be made no later than 60 days after issuance of the Board's final 
decision issued under Sec.  1201.183(c)(1).

0
27. Revise Sec.  1201.204 to read as follows:


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

    (a) Addendum proceeding. (1) A request for consequential, 
liquidated, or compensatory damages will be decided in an addendum 
proceeding.
    (2) A judge may, either on their own motion or on the motion of a 
party, consider a request for damages in a proceeding on the merits 
when the judge determines that such action is in the interest of the 
parties and will promote efficiency and economy in adjudication.
    (b) Initiation of addendum proceeding--(1) Time for making request. 
A request for consequential, liquidated, or compensatory damages must 
be filed as soon as possible after a final decision of the Board on the 
merits of an appeal but no later than 60 days after the date on which 
such decision becomes final. The judge or the Board, as applicable, may 
waive the time limit for making such request for good cause shown, and 
upon a finding that a waiver would not result in undue prejudice to the 
opposing party.
    (2) Place of filing. When the initial decision in the proceedings 
on the merits was issued by a judge in an MSPB regional or field 
office, the request must be filed with the applicable regional or field 
office. When the initial decision in the proceedings on the merits was 
issued by a judge at the Board's headquarters or when the only decision 
was a final decision issued by the Board itself, the request must be 
filed with the Clerk of the Board.
    (3) Form and content of request. A request for consequential, 
liquidated, or compensatory damages must be made in writing and state 
the basis for entitlement to an award of such damages, and the amount 
of damages sought.
    (4) Service. A copy of the request must be served on the other 
parties or their representatives at the time of the request. A party 
may respond to the request within the time limit established by the 
judge or the Board, as applicable.
    (5) Hearing; applicability of subpart B. The judge may grant the 
appellant's request for a hearing on a request for consequential, 
liquidated, or compensatory damages and may apply appropriate 
provisions of subpart B of this part to the addendum proceeding.
    (6) Initial decision; review by the Board. The judge will issue an 
initial decision in the addendum proceeding, adjudicating the request 
for damages. The initial decision shall then be subject to the 
provisions for a petition for review by the Board under subpart C of 
this part.
    (7) Request for damages made in proceeding before the Board. Where 
a request for damages is made in a case which originates before the 
Board, the Board may:
    (i) Consider both the merits of the case and the request for 
damages and issue a final decision; or
    (ii) Remand the case to a judge for a new initial decision, either 
on the request for damages only or on both the merits and the request 
for damages.
    (8) EEOC review of decision on compensatory damages. A final 
decision

[[Page 72966]]

of the Board on a request for compensatory damages pursuant to the 
Civil Rights Act of 1991 shall be subject to review by the Equal 
Employment Opportunity Commission as provided under subpart E of this 
part.

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

0
28. The authority citation for part 1203 continues to read as follows:

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


0
29. In Sec.  1203.12, revise paragraph (b) to read as follows:


Sec.  1203.12  Granting or denying the request for regulation review.

* * * * *
    (b) If the Board grants a request, it will review the regulation to 
determine whether any provision, whether on its face or as implemented 
by the agency, would require any employee to violate 5 U.S.C. 2302(b).

0
30. In Sec.  1203.13:
0
a. Revise the heading and the first and last sentences of paragraph 
(a); and
0
b. Remove the first and second sentences of paragraph (d) and add one 
sentence in their place.
    The revisions and addition read as follows:


Sec.  1203.13  Filing pleadings.

    (a) How to file. A request for regulation review must be filed with 
the Office of the Clerk, U.S. Merit Systems Protection Board, 1615 M 
Street NW, Washington, DC 20419. * * * The Office of the Clerk will 
make all pleadings available for review by the public, including by 
posting the pleadings to the Board's website.
* * * * *
    (d) * * * An initial filing in a request for review and other 
pleadings may be filed with the Office of the Clerk by mail, by 
commercial or personal delivery, by facsimile, or by e-filing in 
accordance with Sec.  1201.14 of this chapter.* * *
* * * * *

0
31. In Sec.  1203.14, revise paragraph (c) to read as follows:


Sec.  1203.14  Serving documents.

* * * * *
    (c) Electronic filing. An initial request for a regulation review 
and other pleadings in a regulation review proceeding may be filed with 
the Board and served upon other parties by electronic filing, provided 
the requirements of Sec.  1201.14 of this chapter are satisfied.

0
32. In Sec.  1203.21, add paragraph (d) to read as follows:


Sec.  1203.21  Final order of the Board.

* * * * *
    (d) Final decision. The decision of the Board is final and 
judicially appealable if the Board grants the request to review and 
addresses the merits of the request.

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

0
33. The authority citation for part 1209 continues to read as follows:

    Authority:  5 U.S.C. 1204, 1221, 2302(b)(8) and (b)(9)(A)(i), 
(B), (C), or (D), and 7701.


Sec.  1209.2  [Amended]

0
34. In Sec.  1209.2, remove ``7121(d)'' and add in its place 
``7121(b)'' in paragraph (d)(1).

0
35. In Sec.  1209.4, revise the last sentence of paragraph (e) to read 
as follows:


Sec.  1209.4  Definitions.

* * * * *
    (e) * * * It is a higher standard than ``preponderance of the 
evidence'' as defined in 5 CFR 1201.4(q).
* * * * *

Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024-19933 Filed 9-6-24; 8:45 am]
BILLING CODE 7400-01-P