MSPB Law Blog

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.

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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.  

By John V. Berry, www.berrylegal.com

The MSPB recently updated their appeal form for federal employees seeking to appeal federal personnel actions.  The form is an update of one that has been in place for some time.  The new form streamlines and reorganizes instructions for appellants, updates areas regarding appellant and federal agency infromation, clarifies hearing request information and provides infromation regarding potential affirmative defenses in a number of types of cases, including the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Veterans Employment Opportunities Act of 1998 (VEOA) and Individual Right of Action (IRA) (whistleblower) cases. 

The form was made effective immediately and is attached for review.  Download New MSPB Appeal Form.  When a federal employee is facing an MSPB appeal, it is important for them to have counsel familiar with MSPB cases.  Our law firm represents federal employees in all matters before the MSPB and can be contacted at (703) 668-0070 or www.berrylegal.com to go over individual legal matters in this regard.

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. 

By John V. Berry, www.berrylegal.com

For the first time since 1979, the Merit Systems Protection Board (MSPB) has sought to amend their rules of practice contained within Title 5 of the U.S. Code of Federal Regulations (CFR).  The new proposed rules are available in the Federal Register at https://federalregister.gov/a/2012-13655.  The changes to the regulations governing practice before the MSPB are extensive and readers are invited to review them.  The MSPB has sought comments to these proposed regulations by July 23, 2012.

On first review, there appear to be a number of changes relating to timing issues in cases and some changes to the MSPB's discovery procedures.  There are a number of other changes as well.  Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com for legal representation before the MSPB.