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MSPB Final Rule Oct 12 2012 2012-24130

MSPB Final Rule Oct 12 2012 2012-24130

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Vol. 77 Friday,No. 198 October 12, 2012Part III
Merit Systems Protection Board
5 CFR Parts 1200, 1201, 1203,
et al 
.Practices and Procedures; Final Rule
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62350
Federal Register
/Vol. 77, No. 198/Friday, October 12, 2012/Rules and Regulations
MERIT SYSTEMS PROTECTIONBOARD5 CFR Parts 1200, 1201, 1203, 1208,and 1209Practices and Procedures
AGENCY
:
Merit Systems ProtectionBoard.
ACTION
:
Final rule.
SUMMARY
:
The Merit Systems ProtectionBoard (MSPB or the Board), followingan internal review of MSPB regulations,publication of a proposed rule, andconsideration of comments received inresponse to the proposed rule, herebyamends its rules of practice andprocedure in order to improve andupdate the MSPB’s adjudicatoryprocesses.
DATES
:
Effective November 13, 2012.
FOR FURTHER INFORMATION CONTACT
:
William D. Spencer, Clerk of the Board,Merit Systems Protection Board, 1615 MStreet NW., Washington, DC 20419;(202) 653–7200, fax: (202) 653–7130 oremail:
SUPPLEMENTARY INFORMATION
:
On June 7,2012, the Merit Systems ProtectionBoard (MSPB or Board) proposednumerous amendments to itsregulations. 77 FR 33663. In response topublication of this proposed rule, theMSPB received 105 pages of commentsfrom 25 commenters. The commentsreceived by the MSPB are available forreview by the public at
. 
Comments and Summary of Changes tothe Proposed Rule
Set forth below is a short summary of the changes proposed by the MSPB, adiscussion of the comments addressingthe proposed rule, and a summary of thechanges the MSPB is making to theproposed rule. Readers desiring a moredetailed summary of the amendmentsproposed by the MSPB should consultthe proposed rule at 77 FR 33663.This Final Rule will become effective30 days after publication in the
FederalRegister
. The MSPB is aware thatchanges to its adjudicatory proceduresmay pose special problems in cases thatare pending on the date this Final Ruletakes effect. In any such case, judgeshave authority under 1201.12 to waivea regulation for good cause, exceptwhere a statute requires application of the regulation.
Section 1200.4Petition for Rulemaking 
The MSPB proposed adding this newregulation to set forth procedures forfiling petitions for rulemaking under 5U.S.C. 553(e). Numerous commentersobjected to this proposed regulation onthe grounds that the MSPB shouldalways employ notice and commentrulemaking due to its unique mission asan adjudicative body and the regulationcould be read as authorizing the MSPBto publish a direct final rule notauthorized under the AdministrativeProcedure Act (APA). However, theAPA does not require notice andcomment in all instances of agencyrulemaking. 5 U.S.C. 553(b). While theMSPB does have a unique mission,publication of a direct final rule remainsan important tool to quickly implementminor technical amendments. However,in an effort to address the concernsraised by these commenters, the MSPBhas added a requirement to theregulation that final rules will be issued‘‘consistent with the AdministrativeProcedure Act.’’A commenter suggested that theMSPB, either by regulation or practice,should post petitions for rulemakingand responses thereto on the MSPB’sWeb site. The MSPB agrees that thisproposal has merit and will undertakein the future to post such informationon its Web site. A commenter suggestedthat the regulation include adviceconcerning a petitioner’s right tojudicial review. The MSPB has chosennot to amend the regulation asrequested. Finally, a commentersuggested that the MSPB include aprocedure for seeking reconsideration of a denial of a petition for rulemaking.The regulation presently gives eachpetitioner a full opportunity to presenthis or her petition to the Board. Nofurther procedures for reconsiderationwill be included in the final rule.
Section 1201.3Appellate Jurisdiction
The amendments proposed by theMSPB explained that this regulation isnot a source of MSPB jurisdiction andthat jurisdiction depends on the natureof the employment or position held bythe employee as well as the nature of the action taken. The proposedregulation also revised the listing of appealable actions within the MSPB’sappellate jurisdiction.A commenter suggested severaleditorial changes to paragraph (a) and,in response, the MSPB has amendedthis regulation. A commenter pointedout that the MSPB has jurisdiction over‘‘suitability actions,’’ not ‘‘suitabilitydeterminations.’’ The MSPB hasamended the proposed regulation toaddress this comment.A commenter recommended that theregulation should be amended toinclude more specific informationconcerning what constitutes a suitabilitydetermination and how a suitabilitydetermination is made. In response, theMSPB has included changes toparagraph (a)(9).A commenter suggested that thestatement in paragraph (a)(3) of theproposed rule that appeals of probationary terminations ‘‘are notgenerally available to employees in theexcepted service’’ is insufficient for prose appellants. The commenter furthersuggested that the regulation should berevised to clearly identify when anexcepted service employee has the rightto appeal such an action by listing anyexceptions to the general rule. Inresponse, the MSPB notes that one suchexception to the general rule exists forVeterans Readjustment Actappointments. While appointmentsunder this authority are exceptedservice appointments, because they arepositions that would otherwise be in thecompetitive service, many competitiveservice rules apply to them, includingthose at 5 CFR part 315, subpart H.
SeeMcCrary 
v.
Department of the Army,
103M.S.P.R. 266, ¶ 11 (2006); 5 CFR307.103–.104. The MSPB therefore believes the use of the term ‘‘generally’’is justified. In addition, given thepossibility that the MSPB mightoverlook an exception that ought to beincluded in such a list or that the listcould become outdated at some futurepoint, the MSPB is satisfied that the useof the term ‘‘generally’’ is appropriate.Finally, MSPB administrative judges arerequired to identify jurisdictionalelements to the parties after an appealis filed and, therefore, there is no needto amend this regulation as requested.The MSPB has also made severalminor changes in the proposed rule.First, in paragraph (a)(10), we changedthe citation to authority for this grant of jurisdiction. There is no longer anySubpart E to 5 CFR Part 752. The correctsources of jurisdiction are 5 U.S.C.7543(d) and 5 CFR 752.605. Second, inparagraph (a)(11), we pluralized ‘‘right’’in the first grant of jurisdiction and broke out the particular grants of jurisdiction into separate paragraphs(a)(11)(i) through (a)(11)(vii).
Section 1201.4General Definitions
The MSPB proposed revisingsubsection (a) to eliminate the phrase‘‘attorney-examiner’’ and revisingsubsection (j) due to a concern that theterm ‘‘date of service’’ was unclear.In response to a concern expressed bya commenter that the term ‘‘grievance’’should be defined, the MSPB has addeda new paragraph (o) defining a‘‘grievance’’ as ‘‘[a] complaint by anemployee or labor organization under anegotiated grievance procedure covered
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/Vol. 77, No. 198/Friday, October 12, 2012/Rules and Regulations
 by 5 U.S.C. 7121.’’ While this definitionwas not included in this regulation inthe proposed rule, the MSPB believes itis appropriate to include this newmaterial here because the MSPB didpropose to amend 1201.153 to substitutethe term ‘‘under a negotiated grievanceprocedure’’ for the word ‘‘grievance.’’The new definition of ‘‘grievance’’ isintended simply to recognize the needto clarify the meaning of the term‘‘grievance’’ throughout the MSPB’sregulations.A commenter objected to the currentdefinition of ‘‘date of service’’ inparagraph (j) as circular and suggestedthat it should take the form of anarrative definition without reference to‘‘date of filing.’’ The MSPB rejects thissuggestion as the date of service anddate of filing are intended to beidentical.A commenter suggested that theMSPB delete ‘‘calendar’’ as adescription of days in paragraph (j) because days is already a defined termin paragraph (h). The final rule adoptsthis suggestion.Several commenters suggested thatlanguage authorizing that 5 extra dayswill be provided when a pleading isfiled by mail should be moved to1201.23 or that a reference to 1201.23should be added to the proposedlanguage in paragraph (j). A commenteralso suggested that the MSPB amend thelanguage of paragraph (j). In response tothese suggestions, the MSPB hasamended the language of paragraph (j)and moved the language providing 5extra days when a pleading is filed bymail to 1201.23.A commenter expressed a concernthat the MSPB’s definition of ‘‘date of service’’ is flawed because it fails torecognize that irradiation of mail delaysreceipt of mail by Federal agencies. TheMSPB is aware that when an appellantfiles via regular mail, and the agencyrepresentative is located in Washington,DC, the pleading will go to anirradiation center and it may take morethan 5 days for the agency to receive it.While this is a valid concern, the MSPBdoes not think it justified a specialprovision in the regulations. If irradiation has caused a significantdelay that adversely impacts an agency’sopportunity to submit a responsivepleading, the agency can ask foradditional time or seek to excuse a lateresponse, and there is no reason to believe our judges will not deal withsuch matters appropriately.A commenter suggested that theMSPB amend the definition of ‘‘judge’’in paragraph (a) to add ‘‘any member of the Merit Systems Protection Board’’ tothe listing of persons who can be a judgeand further amend the regulation tomake clear that only individuals‘‘experienced in hearing appeals’’ mayhear an appeal of a removal action. Wehave revised the regulation to includeMembers of the Board in the definitionof the word ‘‘judge.’’ The MSPB iscognizant of the requirement in 5 U.S.C.7701(b)(1) that a removal case shall beheard by the Board, an employeeexperienced in hearing appeals, or anadministrative law judge. The MSPBensures that cases are assigned toexperienced judges in accordance withthe statutory requirement.
Section 1201.14Electronic Filing Procedures
The MSPB proposed adding newlanguage to reflect current MSPB policyand procedures regarding SensitiveSecurity Information (SSI) and classifiedinformation. The MSPB proposed torevise paragraph (m) to make theregulation consistent with the intentexpressed by the Board when itoriginally published this provision at 73FR 10127, 10128 (2008). Finally,additional language was added toprovide that amici are not permitted toe-file.A commenter suggested that theMSPB should change the restriction onSSI so that it applies only when adocument has been marked by theagency as containing SSI. The MSPB believes the current languageconcerning filing of SSI and classifiedinformation is more appropriate in sofar as it contemplates additionalscenarios in which a party other thanthe agency submits a pleadingcontaining information that it knew orshould have known contains SSI. Acommenter objected to the MSPB’srestrictions on filing pleadingscontaining SSI as overly broad.However, these restrictions arecompelled by the fact that SSI andclassified information require security beyond that available in the MSPB e-filing system. A commenter questionedthe continued exclusion of class appeal-related filings and requests to appear asamici from the MSPB’s e-appeal system.As the MSPB noted in the proposedrule, we considered the option of reconfiguring e-Appeal Online toaddress Privacy Act concerns and allowamici to file using e-Appeal Online butdetermined that the cost of such asystemic change outweighed the benefitof e-filing by amici. A commenterobserved that the MSPB should adjustits e-filing system to account forregional time differences rather thanaddress this issue in a regulation. Whilethe e-filing system of the Federaljudiciary may accommodate suchdifference, the MSPB remainsconcerned that such a change to its e-filing system risks compromising thereliability and integrity of its filingprocess.
Section 1201.21Notice of Appeal Rights
The MSPB proposed to changelongstanding jurisprudence concerningallegations of reprisal forwhistleblowing under 5 U.S.C.2302(b)(8) where an employee has beensubjected to an otherwise appealableaction. Subsection (g)(3) of 5 U.S.C.7121 provides that an individual whohas been subjected to an otherwiseappealable action and who allegesretaliation for whistleblowing must electone of 3 actions: (A) an appeal to theBoard under 5 U.S.C. 7701; (B) anegotiated grievance under 5 U.S.C.7121(d); or (C) corrective action undersubchapters II and III of 5 U.S.C. chapter12, i.e., a complaint filed with OSC (5U.S.C. 1214), which can be followed byan Individual Right of Action appealfiled with the Board (5 U.S.C. 1221).Subsection (g)(4) provides that anelection is deemed to have been made based on which of the 3 actions theindividual files first. The proposedregulation would require agencies tofully notify employees of their rights inthese situations so that they can makean informed choice among the available3 options. Paragraph (e) was added torequire notice in mixed cases.A commenter suggested that theMSPB should define what constitutes agrievance. In response to this comment,the MSPB has added a new definition ina new paragraph (o) in 1201.4.Several commenters suggested thatthe MSPB clarify its proposed regulationand/or provide ‘‘model’’ language foragencies to use with respect to theBoard’s requirements in paragraphs (d)and (e) relating to elections betweendifferent forums that employees arerequired to make with respect to claimsof retaliation for protectedwhistleblowing disclosures or claims of unlawful discrimination. The Boarddoes not believe that detailed modellanguage is required, as the regulationsat 5 CFR 1209.2 and 29 CFR 1614.301and .302 provide adequate guidance.A commenter pointed out that whilethe proposed regulation would requireagencies to give notice of rights under5 U.S.C. 7121(g), it failed to requirenotice of rights under 5 U.S.C.7121(c)(1) and (d). The MSPB believesthese concerns are already addressed inparagraphs (d) and (e) of the regulation.We revised paragraph (e) to add thephrase ‘‘or to grieve allegations of unlawful discrimination’’ and added
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