Fedweek Legal

On October 12, the Merit Systems Protections Board issued a notice of final rules that will take effect on November 13 to provide more flexibility for administrative judges and parties in the adjudicative process. The revisions follow an unprecedented review and the first significant reconsideration of MSPB’s regulations since the agency’s establishment in 1979.


Key changes to take effect include the allowance of two case suspension periods of up to 30 days each, instead of the current single case suspension period. The new regulations will also allow administrative judges to grant dismissals without prejudice. Also, the scope of relevant attachments to request an appeal has been reduced from "any relevant documents" to "a copy of the notice of proposed action, the agency decisions being appealed and, if available, the SF-50 or similar notice of personnel action." Discovery procedures have been changed to eliminate of the requirement for initial disclosures and extend the time for initiating discovery from 25 to 30 days after the date on which the judge issues the acknowledgement order. The increase of time to 30 days should ensure that, in most cases, appellants have had the opportunity to see what is in the agency file before they initiate discovery.

Another major change will require an employee alleging whistleblower reprisal who has an otherwise appealable action to make an election between the Office of Special Counsel (OSC), where he or she will have more limited appeal rights to the Board, or appeal directly to the Board. When taking an otherwise appealable action, agencies will be required to advise employees of the consequences of such an election, including the fact that the employee would be foregoing important rights if he or she seeks corrective action from OSC before filing with the Board. The new regulations do not address whether employees who have already filed whistleblower complaints will be deemed to have made a valid and binding election.

The revised regulations will also allow for replies to oppositions to petitions for review (PFR) before the Board. PFRs, cross-PFRs, and responses to either of these documents will be limited to 30 pages, while a reply to a response to a PFR or cross-PFR will be limited to 15 pages. Lastly, the revised regulations address the possibility of excusing an untimely appeal under the doctrine of equitable tolling.

The rules should improve and streamline the appeal process for all parties involved.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.