by Darrin W. Gibbons, Attorney at Law
Effective November 13, 2012, the U.S. Merit Systems Protection Board (the “Board”), a quasi-judicial agency in the executive branch of government responsible for overseeing federal merit systems, changed its rules for appeals filed by federal employees. The new rules are available at 5 C.F.R. Parts 1200, 1201, 1203, 1208, and 1209. What follows is a “nuts-and- bolts” summary of important regulatory changes made to the Board’s rules. This list is not all- inclusive, and the author urges each reader to fully review the substantive and procedural changes made to the Board’s rules.
- Failure to Comply with an Order of the Board May Result in the Withholding of a Manager’s Pay. The Board may now sanction agency managers by withholding their pay. See 5 C.F.R. 1201.183. Upon finding that an agency is in noncompliance with an order of the Board, the Board may, when appropriate, require the agency and the responsible agency official to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and the responsible agency official to make this showing in writing, or to make it both personally and in writing. The responsible agency official has the right to respond in writing or to appear at any argument concerning the withholding of that official’s pay.
- Larger Case Suspensions. It is the Board’s policy to adjudicate all appeals filed by federal employees within 120 days of receipt of an appeal. Under the new rules, the Board may now suspend an appeal at the judge’s discretion for up to 60 days. See 5 C.F.R. 1201.28. The prior regulation allowed for a single, 30-day suspension of an appeal, and, in the absence of a joint request from the parties, the appeal could only be suspended for “good cause shown.” The new regulation appears to give the administrative judge total discretion in determining whether or not to suspend an appeal and doubles the amount of time an appeal may be suspended. Since an appeal may now take up to 180 days (or 6 months) to be adjudicated, agencies may be exposed to larger potential back pay awards, and appellants may suffer from unjust employment actions for a longer period of time.
- Modified Discovery Procedures. The Board amended discovery procedures to increase the amount of time allowed to initiate discovery from 25 to 30 days and to eliminate the requirement for the parties to file initial disclosures. See 5 C.F.R. 1207.73. The Board eliminated widely unpopular initial disclosures, which previously had to be filed by the parties within 10 days of the filing of an appeal, and which added little value to the appeal process. Also, the Board’s new discovery rules increase the initiation deadline for written discovery (e.g., interrogatories, requests for production of documents, and requests for admission) to 30 days following the issuance of the Board’s Acknowledgment Order. Under the old rule, the deadline was 25 days. This created a perceived burden on appellants, who received agency response files 20 days after the filing of an appeal. The increase in time allows an appellant additional time to review the agency response file prior to initiation of discovery.
- Free-of-Charge Transcripts. The Board will now provide copies of recordings or existing transcripts upon request free-of-charge. See 5 C.F.R. 1201.53. In the past, a party could receive a copy of the official record of a Board appeal upon request and when costs were paid. This change benefits appellants and agencies equally as each party may now obtain a record of a hearing before the Board free-of-charge for use in any subsequent legal action.
- More Time to Respond to Documents Filed by U.S. Mail. The Board’s new rules incorporate additional response time for documents served by regular U.S. mail. See 5 C.F.R. 1201.23. The new regulation adds five days to respond to documents served by mail. The change also eliminates a potential difference in deadlines imposed upon the parties based on service of a document by mail or by electronic means (e.g., e-filing or facsimile). Under the prior regulation, a party could shorten an opposing party’s response time by sending a document by regular mail. This change eliminates delays caused by regular U.S. mail and encourages service of pleadings by electronic means.
- Size Limitations on Petitions for Review. If a party is dissatisfied with the administrative judge’s initial decision, a petition for review may be filed with the Clerk of the Board in Washington, D.C. Under the new rules, a petition for review, cross petition for review, or response to a petition for review or cross petition for review is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. See 5 C.F.R. 1201.114 (e), (h).
While the above summarizes important changes to the Board’s procedures, many other substantive and procedural changes were issued by the Board. Any party appearing before the Board should thoroughly familiarize themselves with the new rules at their earliest opportunity.
The information presented in this article should not be construed as legal advice. A lawyer-client relationship has not been established between the author and any reader.
Darrin W. Gibbons is a former judge advocate and in-house counsel for the Department of Defense. From 2000-2012, he made hundreds of appearances on behalf of the government before the U.S. Merit Systems Protection Board and U.S. Equal Employment Opportunity Commission. Mr. Gibbons now represents federal employees. For info: www.gibbons-law.net