By John V. Berry, www.berrylegal.com
The MSPB, on October 30, 2015, decided to make new rules making discovery procedures more consistent in cases where a party has settled or won an appeal and the other party has not complied with the agreed to (or imposed) terms. The new provision, 5 C.F.R. § 1201.183(a)(9), has been added to make clear that discovery may be pursue in enforcement cases. Previously, whether or not discovery was permitted for compliance matters (e.g. the Agency has not complied with settlement or reinstatement terms) was an issue left to the discretion of the administrative judge. Administrative Judges tended to review requests of a party to engage in discovery by requiring the party to show the necessity for doing so. This typically affects an employee more than the agency given that in the vast majority of cases it is the appellant (employee) that is asking that the MSPB order a federal agency to comply with a previous settlement agreement or order.
A copy of the new procedures can be found here. The new rule for MSPB enforcement cases explains:
5 C.F.R. § 1201.183(a)(9). Discovery may be undertaken in accordance with the Board’s regular discovery procedures (§§ 1201.71 through 1201.75 of this part), 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 as required under paragraph (a)(1) of this section.
This new provision should make a positive contribution to cases in which the Agency has not complied with a previous settlement agreement or has not taken actions to implement a final decision of the MSPB.
Conclusion
In sum, this new rule should help federal employees uncover the reasons why an Agency has not complied with settlement or a final order that has not been followed by an agency. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.