MSPB Applies New Rules to the Processing of MSPB Cases
11/02/2012
By John V. Berry, Esq., www.berrylegal.com
The Merit Systems Protection Board (MPSB) has issued new regulations, as of October 12, 2012, which provide some substantial revisions to the existing procedural rules for processing MSPB cases. The new rules, published in the Federal Register, are attached here Download MSPB Rule Changes. The rules take effect on November 13, 2012.
Some of the highlights in the new rules issued by the MSPB for case processing include:
1. Case Suspensions: In the past, case suspensions for purposes of
discovery or settlement were limited to 30 days. In the new rules, an administrative judge can grant up to 60 days for the case suspension process in 2 increments of up to 30 days each. Case suspensions have the effect of pausing many aspects of a case and the pending hearing process while the parties attempt to either resolve a case or complete discovery efforts. See 5 C.F.R. § 1201.28.
2. Initial Disclosures: The MSPB has abolished the initial disclosure requirements. These types of disclosures are due early, within 10 days, and were repetitive. This change will help to streamline the discovery process in MSPB cases.
See 5 C.F.R. § 1201.73.
3. Deadline to Initiate Discovery: The deadline to initiate discovery (i.e. depositions, interrrogatories, production of documents requests and admissions) had been extended from 25 days to 30 days. This is a good change and gives an
appellant the opportunity to obtain more information about their case before filing their discovery requests with the agency. See 5 C.F.R. § 1201.73 (d)(1).
4. Petitions for Review (PFR): PFRs by an appealing party are now limited to 30 pages. Defending parties are also then limited to 15 pages for their responses to PFRs. In addition, the grounds for filing a PFR have been broadened. Specifically, the MSPB notes, in their new regulations, that they can grant a PFR when “[t]he case is incorrectly decided on the existing record.” This is a welcome change and eliminates some of the deference that has been previously given to determinations of fact by administrative judges which need to be appealed.
5. Whistleblower Rights: The MSPB also has made a change with respect to
whistleblower rights. Individuals filing Individual Right of Action (IRA) cases with the U.S. Office of Special Counsel (OSC), instead of direct appeals to the MSPB in connection with an adverse action appear to be effectively limited to only the litigating the whistleblower issue. The effect of this provision, in 5 C.F.R. § 1209.2, will likely be to free agency counsel from having to defend the adverse action that was taken and their penalty analysis and to only deal with the reprisal issue in such an appeal.
There are a number of other changes, but the ones above are the ones that I noted as most interesting in our representation of federal employees before the MSPB. If a federal employee is in need of representation, they should contact an attorney familiar with these issues. Our law firm, in the Metropolitan, Washington, D.C. area represents federal employees nationwide and can be contacted at (703) 668-0070 or at www.berrylegal.com to consult over these types of cases.