By notice in the Federal Register dated September 18, 2003 (Volume 68, Number 181), the Merit Systems Protection Board issued an interim rule changing its regulations in 5 CFR 1201.28 in regard to the case suspension proceedings. The interim rule now provides for tighter time limits in enforcing the already strict 120-day rule for processing appeals to the MSPB regional offices. The amendment only allows the MSPB administrative judges to grant one up-to-30-day extension for suspension of case proceedings although the request can be joint or unilateral. However, the granting of the extension is at the discretion of the administrative judge.
This constitutes a reversal of former Chairman Beth Slavet’s regulation allowing the parties to an MSPB appeal to jointly request one or two 30-day suspensions of proceedings which were automatic without any input from the administrative judge. As a practical matter, the automatic extensions were very useful in cases involving extensive discovery, including depositions, as the parties had more time to conduct discovery and attempt settlement negotiations prior to the hearing, which is usually scheduled between the 60th and 90th day following the docketing of the appeal. This tight schedule did not allow sufficient time for discovery in contested cases, and the parties were able to use the suspension of proceedings to provide additional necessary time for discovery and settlement.
In addition, the interim rule also permits the administrative judges to impose limits on the frequency and number of discovery requests, following the guidance in the Federal Rules of Civil Procedure. However, unlike Rule 26, there are no required initial disclosures. Absent prior approval by the administrative judge, interrogatories served by the parties may not exceed 25 in number, including all discrete subparts. Absent approval by the administrative judge, parties may not take more than 10 depositions. 5 CFR 1201.73(d)(1) and (2). Furthermore, any discovery request following the initial request must be now served within seven days where the previous regulations had a 10-day limit. With the new interim rule, the parties will be under increased pressure to timely complete discovery before the scheduled hearing.
The interim rule and internal procedures placing more stress on timely administrative judge decisions appear to be a reaction to the Department of Homeland Security expected regulations and the Department of Defense legislation which may sever adverse action appeals from MSPB jurisdiction. DoD proposes to hire 30 administrative judges to handle its caseload although the program would no longer be administered by an independent agency. The MSPB would be greatly affected by the loss of jurisdiction over DHS and DoD appeals as over one-third of its present caseload involve these agencies. The Senate version of the legislation which is pending in conference committee would still provide MSPB appellate review of the DoD administrative decisions.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
