Organization and Procedures

<RULE> MERIT SYSTEMS PROTECTION BOARD <CFR>5 CFR Parts 1200, 1201, 1203, and 1209</CFR> <SUBJECT>Organization and Procedures</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Merit Systems Protection Board. <HD SOURCE="HED">ACTION:</HD> Interim final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule updates adjudicatory and operational regulations of the Merit Systems Protection Board (MSPB or Board) to increase efficiency in processing of MSPB appeals, as well as to address potential flaws in its prior regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This interim final rule is effective October 7, 2024. Comments must be received on or before November 8, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments concerning this interim final rule by one of the following methods and in accordance with the relevant instructions: <E T="03">Email: mspb@mspb.gov.</E> Comments submitted by email can be contained in the body of the email or as an attachment in any common electronic format, including word processing applications, HTML, and PDF. If possible, commenters are asked to use a text format and not an image format for attachments. An email should contain a subject line indicating that the submission contains comments concerning the MSPB's interim final rule. The MSPB asks that commenters use email to submit comments if possible. Submission of comments by email will assist the MSPB to process comments and speed publication of a final rule. <E T="03">Fax:</E> (202) 653-7130. Comments submitted by fax should be addressed to Gina K. Grippando, Clerk of the Board, and contain a subject line indicating that the submission contains comments concerning the MSPB's interim final rule. <E T="03">Mail or other commercial delivery:</E> Comments submitted by mail should be addressed to Gina K. Grippando, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419. <E T="03">Hand delivery or courier:</E> Comments submitted by hand delivery or courier should be addressed to Gina K. Grippando, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419, and delivered to the 5th floor reception window at this street address. Such deliveries are only accepted Monday through Friday, 9 a.m. to 4:30 p.m., excluding Federal holidays. <E T="03">Instructions:</E> As noted above, the MSPB requests that commenters use email to submit comments, if possible. All comments received will be made available online at the Board's website, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information or other information the disclosure of which is restricted by law. Those desiring to submit anonymous comments must submit comments in a manner that does not reveal the commenter's identity, include a statement that the comment is being submitted anonymously, and include no personally identifiable information. The email address of a commenter who chooses to submit comments using email will not be disclosed unless it appears in comments attached to an email or in the body of a comment. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Gina K. Grippando, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: <E T="03">mspb@mspb.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The MSPB commenced its last comprehensive review of its regulations in January 2011, which concluded with the issuance of a final rule amending its regulations in October 2012. In May 2019, the MSPB initiated a new review of its regulations to further improve its adjudications and operations. The MSPB's review process began with a solicitation for suggested revisions from its internal offices. The submissions were then reviewed by an internal working group, which worked to develop draft amendments to existing regulations based on the submissions. Following restoration of the Board's quorum of members in March 2022, the draft amendments prepared by the internal working group were then evaluated by the Board members, after which time they were revised in accordance with the processing goals of the Board and prepared for issuance. Finally, while these amendments are being issued immediately as interim final rules, the Board still requests that all stakeholders or other interested individuals provide their views on the amendments. The Board also requests additional comments on any other aspect of its regulations that stakeholders or other interested individuals feel need amending. The Board will thoroughly consider all input and respond to all comments as necessary. <HD SOURCE="HD1">II. Summary of Changes</HD> Set forth below is a summary of amendments being implemented by the MSPB <HD SOURCE="HD2">Part 1200—Board Organization</HD> <HD SOURCE="HD3">Subpart A—General</HD> <HD SOURCE="HD3">Section 1200.3 How the Board Members Make Decisions</HD> This amendment modifies the authority of Board members or Board staff to take certain actions when the Board is unable to act due to vacancies, recusals, or other reasons. During the Board's inquorate status between 2017 and 2022, the Board encountered numerous scenarios which under existing regulation or policy required Board vote, but which were unable to be processed without a quorum. These included scenarios such as decisions finalizing settlements of appeals reached after an initial decision had issued, or requests for further development of the record by an administrative judge after an initial decision had issued. The Board is implementing this modification in order to expedite processing in certain scenarios in the event that it is again unable to act due to a loss of quorum in the future. Under the new regulation, a lone Board member may be able to perform certain of these tasks, and in the event the Board lacks any confirmed members, MSPB staff may be allowed to perform the tasks to the limited extent necessary to facilitate final decision- making by a future quorum. Additionally, the new regulation addresses the Board's decision-making authority when members of the Board are unable to reach a majority decision due to vacancies, recusals, or other reasons. <HD SOURCE="HD3">Section 1200.5 Conduct Policy</HD> This addition to the MSPB's Board Organization regulations reflects the Board's need to issue a policy prohibiting abusive conduct and filings from individuals during the pendency or after the conclusion of an appeal. This policy will benefit all parties by ensuring that appeals are adjudicated efficiently and respectfully. <HD SOURCE="HD2">Part 1201—Practices and Procedures</HD> <HD SOURCE="HD3">Subpart A—Jurisdiction and Definitions</HD> <HD SOURCE="HD3">Section 1201.3 Appellate Jurisdiction</HD> This amendment corrects an errant reference to 5 CFR 1201.154. The regulation is intended to instead reference the Board's authority to review grievance decisions pursuant to 5 CFR 1201.155. <HD SOURCE="HD3">Subpart B—Procedures for Appellate Cases</HD> <HD SOURCE="HD3">Section 1201.22 Filing an Appeal and Responses to Appeals</HD> This amendment clarifies that the examples listed within the regulation are not meant to be binding interpretations of the regulation, and they are instead only meant to be illustrative of potential applications of the regulation. The Board believes this change will provide flexibility in determinations regarding good cause to waive untimeliness. <HD SOURCE="HD3">Section 1201.23 Computation of Time</HD> This amendment clarifies the Board's discretion to waive its filing deadlines due to events that broadly affect the ability of parties to file pleadings and/or the Board's ability to serve issuances. The amendment does not otherwise alter the Board's current ability to exercise discretion when determining when to waive filing deadlines in individual appeals, and instead only reflects the Board's intent to potentially alter deadlines for all pending appeals when events transpire that broadly affect the Board's filing systems, such as technical outages or government shutdowns. <HD SOURCE="HD3">Section 1201.33 Federal Witnesses</HD> This amendment makes a small grammatical modification to the existing regulation. <HD SOURCE="HD3">Section 1201.41 Judges</HD> This amendment clarifies that MSPB administrative judges may only hold a hearing if requested by an appellant. This modification reemphasizes that the right to request a hearing belongs solely to appellants, and that neither administrative judges nor agencies may order a hearing if the appellant does not wish to have a hearing. <HD SOURCE="HD3">Section 1201.56 Burden and Degree of Proof</HD> This amendment clarifies which types of Office of Personnel Management decisions may be appealed. The prior version of the regulation incorrectly suggested that appeals may only come from reconsideration decisions from the Office of Personnel Management (OPM), and it did not recognize that pursuant to longstanding Board case law, initial decisions from OPM may also be considered final appealable decisions, when OPM refuses or improperly fails to issue a final decision. This modification reflects the Board's decision in <E T="03">Okello</E> v. <E T="03">Office of Personnel Management,</E> 120 M.S.P.R. 498 (2014). <HD SOURCE="HD3">Section 1201.72 Explanation and Scope of Discovery</HD> The amendments to this section clarify that discovery during an MSPB appeal may involve individuals who are not parties to the appeal. The amendment further removes reference to the Federal Rules of Civil Procedure, reflecting the Board's desire to establish its own discovery rules and limitations to better align with its statu ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 70k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━