By Edward H. Passman, Esq.
Both the appellant and the agency are entitled to have their appeals adjudicated as quickly as possible, usually within 120 days, after an appeal is filed with the Merit Systems Protection Board Regional Office [5 USC 7702(2)(1)]. Because in some situations the parties may conclude that more time is necessary for discovery and/or settlement negotiations, the administrative judge (AJ) will automatically grant suspensions of proceedings for up to 30 days if it is a joint request. A second 30-day suspension will also be granted if the parties mutually request additional time.
A request that the adjudication of the appeal be suspended must be filed with the AJ within 45 days of the date of the “acknowledgment order” or within seven days of the appellant’s receipt of the agency file, whichever date is later. A request for an additional 30-day suspension must be filed before the fifth day before the end of the first 30-day suspension. If for some reason the parties fail to meet the applicable deadlines, there is the possibility of requesting that the case be dismissed “without prejudice” for refiling. The dismissal of an appeal without prejudice is within the sound discretion of the AJ and should be granted for good cause. [Gardner v. Department of the Treasury, 68 MSPR 258, 261 (1995)].
The use of the suspended appeal procedure and dismissal of appeal without prejudice are very useful devices where cases require extensive discovery, including depositions. The short MSPB deadlines compounded by AJs setting early hearing dates make it virtually impossible to timely complete comprehensive discovery in a complex case. It’s usually in the interest of both parties to join in the request. By extending the timeframes through use of the suspended appeals procedures and/or the motion to dismiss without prejudice, the parties will ensure that their case is well developed and will probably increase the likelihood of settlement after completion of discovery.