Many are criticizing the Merit Systems Protection Board (the Board), formerly a well respected neutral body, of tilting dramatically toward policies, procedures and now rules that benefit appellants or appellant counsel. The Board has been setting up a proposed rulemaking for June 1, 2012 as reflected in an announcement.
So what’s the big deal? The big deal is that the proposed regulations appear to give MSPB much more power to change its regulations and appear to benefit appellant counsel or appellants substantially. The Board is claiming that these new regulations follow an Executive Order addressing the creation of new regulations. Let’s look at some of what the Board is proposing:
Making Regulatory Change Easier and Quieter
The proposed rules states that: “Any interested person may petition the MSPB for the issuance, amendment, or repeal of a rule.”
No sweat so far but then adds: “No public procedures will be held directly on the petition before its disposition. If the MSPB finds that the petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate. “
Now I’m not a lawyer but doesn’t this say the Board can change any of its rules based on the request of anybody without getting comments from anybody? In the reasons column, it says this is driven by the executive order and mentions that it got such a request already from AFGE Local 1923 (That’s the union that reps the Social Security Administration) but nowhere on the website is there any other mention of this request.
Making Agency Notice Burden Greater
The proposed rule adds the following to what the Agency must provide the appellant:
“(4) The effect of any election under 5 U.S.C. 7121(g), including the effect that seeking corrective action under subchapters II and II of 5 U.S.C. chapter 12 will have on the employee’s appeal rights before the Board.”
5 U.S.C. 7121(g) talks about the election of remedies in the grievance procedure if prohibited personnel practices are alleged. Subchapters II and III deal with Special Counsel and Individual Rights of Action in reprisal for whistle blowing. Seems to me that the Board is creating an additional opportunity for “harmful error” if the Agency gets this complex and somewhat speculative notice requirement wrong.
Making Appellant and Appellant and Employee Advocate Burden Lighter
The current reg says the employee must produce: “The notice of the decision to take the action being appealed, along with any relevant documents;”
The proposed reg replaces that with:
“Where applicable, a copy of the decision or notice of the action being appealed. No other attachments should be included with the appeal, as the agency will be submitting the documents required by § 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed.”
Sounds like it lowered the burden to me.
Creating a Virtually Impossible Witness Production Burden on the Agency
The current reg says:
Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate).
The proposed reg says:
Every Federal agency or corporation, including nonparties, must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so. The responding agency shall arrange for the presence of approved Federal employee witnesses to include those who are employed by other Federal agencies or corporations. When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status ( i.e., entitled to pay and benefits including travel and per diem, where appropriate). (My emphasis)
I thought the Board was full of lawyers and so maybe this is just a practical joke to stir up the lawyerin’ community, right? Appears not! So an appellant wants one or more witnesses from one or more Agencies other than the one whose action he or she is appealing. The Agency fails to produce them and apparently bears a burden to show cause why it couldn’t. The Board levies sanctions. What makes MSPB think that one Agency would pay for and lose the services of an employee out of what, mere courtesy to another. So what if the second party employee doesn’t want to show up? I can think of any number of scenarios in which this rule places an Agency action in jeopardy over which it has absolutely no control. I’m disappointed in the Board for even letting this make it to a draft. What is going on these days on M Street or maybe a better question, what’s in the water up there?
Spending Agency Money in Big Amounts to Save its Own
In justifying new rules on hearing locations, the Board says:
“The current extensive list of fixed hearing sites causes administrative inefficiencies and can have adverse budgetary considerations for the MSPB, as the cost of airfares are renegotiated by GSA each fiscal year, and cost of court reporters varies considerably from one city to the next. For example, the Government fare for a flight from Atlanta to Pensacola, Fla. is presently less than $200, while the fare to Mobile, Al., less than 60 miles from Pensacola, is over $1,000. Having the flexibility to change approved hearing sites from year to year by changing information on the Board’s public website”
So to save the Board $800.00, the Agency would have to ship its advocates and any witnesses to Mobile. Let’s assume by the Board’s reckoning that’s 60 miles. Multiply that by 2 (round trip) times $.555 per mile or $66.60 for anyone who drives plus perhaps a night at the government rate in Mobile $94.00 at the Holiday Inn downtown, plus $51 for meals. That’s $211.60 per person. Let’s assume the Agency has five people to send and the employee wants 5 employee witnesses and the hearing lasts two days. That’s $4232.00 (Appellant reps – quibble at will) of Agency money to save the Board $800.00. Didn’t GSA get in tons of trouble for throwing away money on unnecessary travel. Wake up MSPB, you’re in the same government as the Agencies.
There’s a lot more in these proposed regulations in discovery and pleadings that someone smarter than me should take a good look at. You’ll also like the idea that the lawyers representing appellants are considered stakeholders of equal status to Agencies in the Board’s considerations.
In the past, as any reader will attest, I have shown great respect for the Board as it was clearly well deserved. As a recent Medal of Freedom recipient once sang, “The times, they are a’changin”.
Any opinion you derive from the above represents my views and should not be construed as the responsibility of anyone but me.