On June 7, the Merit Systems Protection Board issued in the Federal Register proposed regulations that are mainly procedural but overall provide more flexibility for administrative judges and parties in the adjudication process.
Especially helpful is the proposed change to allow for two 30-day suspension of proceedings as opposed to a single 30-day suspension of proceedings at present. It is currently very difficult to thoroughly litigate complex adverse action cases in 120 or 150 days. A clarification of the ability of AJs to grant dismissals without prejudice where warranted is also helpful. Also, there is a proposed limitation on the documents that must be included with the filing of an MSPB appeal and the elimination of the requirement for initial disclosures. Other proposed changes include extending the time for initiating discovery from 25 to 30 days, ending discovery no later than the prehearing or the close of the record conference, and clarifying third-party discovery procedures.
A major proposed change is to require an employee alleging whistleblower reprisal who has an otherwise appealable action to make an election between the Office of Special Counsel, where he will have more limited appeal rights to the Board, or appeal directly to the Board. Although this proposed change may appear to limit an employee’s choice in claiming reprisal for whistleblowing, an employee will still be able to complain about other than adverse actions to the OSC, including proposed adverse actions, and then have full appeal rights to the Board if he is suspended for more than 14 days, demoted or removed.
Another major proposed change is the option for AJs to order agencies to purchase copies of hearing transcripts when necessary under certain circumstances.
An important proposal will permit replies to oppositions to petitions for review before the Board. The proposal includes a 30-page limit on petitions for review and oppositions and a 15-page limit on any replies. Also, the Board would limit appeals of labor arbitration awards where discrimination wasn’t claimed before the arbitrator.
Overall, the proposed changes should be beneficial in improving the adjudication process and providing procedural due process to the parties who come before the Board.
Interested parties have 45 days after the date of publication to submit written comments to the Board.
* 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.