MSPB Regulations Revisions: A Couple of Issues Worth Watching

The Merit Systems Protection Board (MSPB) has issued a final rule revising its regulations. Here is a summary of the changes that will be of interest to many of your readers in the federal community.

In a Federal Register notice dated Wednesday, February 6, 2008 (Volume 73 No. 25), MSPB issued a “Final Rule” revising its regulations. It appeared from the summary that the Board was doing housekeeping as well as getting its regulations in line with the Federal Circuit’s practice and case law.

The changes are:

The date of receipt of an agency decision is date on which the petitioner receives it and the time for filing a petition for review begins on the date the initial decision is first received by either the appellant or the representative.

The comments say this makes the Board’s practice consistent with the court but an unintended consequence may be another round of cases on what “receipt” means.

The U.S. Postal Service and the other deliverers frequently have trouble getting a signature so what does receipt mean? Let’s hope this is a ho-hum change and that the long established service rules aren’t in for a new look. Agency practitioners, pay very careful attention to the acknowledgement orders and AJ decisions in your region for a while to see if the dust is rising or settling.

A witness who is not a federal employee may obtain an order requiring the payment of witness fees.

Non-Federal witnesses are pretty rare but practitioners may want to have a precautionary talk with the Agency money people to make sure the skids are greased for such an occurrence. My experience is that procurement folks get unhappy when faced with paying for something without knowing in advance they are going to.

Making clear that, in discrimination cases, the clock for filing an appeal starts with the receipt of the Agency final decision.

In addressing this, the Board cites Paine v. MSPB, 467 F.3d 1344 (2006) After you read Paine, you’ll understand why the Board wanted a revision.

Complaints of discrimination in the Board’s adjudication of a case must be clearly marked as raising such an issue.

This change in the somewhat arcane compliance section appears mostly for the lawyers and also mostly regarding Special Counsel cases.

Thanks to Chad Bungard, MSPB’s General Counsel for a quick, helpful response to a question I had on the regulations.

If I got something wrong above, the fault is mine and mine alone. Thanks for reading and commenting.

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.