03-23857. Practices and Procedures

AGENCY:

Merit Systems Protection Board.

ACTION:

Interim rule.

SUMMARY:

The Merit Systems Protection Board (MSPB or the Board) is amending several provisions of its practices and procedures regulations to improve the agency's service to its customers by facilitating the expeditious adjudication of appeals. The amendments allow the judge to grant a joint or unilateral request for suspension of a case for only one 30-day period rather than two 30-day periods. Moreover, the amended regulations no longer provide for the automatic granting of such requests; instead, requests for the suspension of a case may be granted at the discretion of the judge. As a result of these amendments, the maximum amount of time that a case may be suspended has been reduced from 60 to 30 days.

The amended regulations also impose a condition on the judge's exercise of discretion in granting unilateral requests for an additional suspension period. Such requests may be granted for good cause shown pursuant to the amended regulations. The amended regulations also specify a 30-day limit on the amount of time the judge may grant for a unilateral request.

Two new subsections have also been added to the regulations governing discovery procedures. These subsections permit the administrative judge to impose limits on the frequency or extent of the use of discovery methods and the number of discovery requests. The Board has decided to follow the guidance of the Federal Rules of Civil Procedure in adopting these changes to its discovery procedures. The regulations governing discovery procedures have also been amended to reduce the number of days for filing subsequent discovery requests from 10 days to 7 days.

DATES:

Effective date: September 18, 2003. Submit written comments on or before October 20, 2003.

ADDRESSES:

Send comments to Bentley M. Roberts, Jr., Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; [phone], fax: [phone] or e-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Bentley M. Roberts, Jr., Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; [phone], fax: [phone] or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

These changes in the Board's rules of practice and procedure respond in part to the directives contained in the President's Management Agenda (2002). The President's management reform initiative directs agencies to “reshape their organizations to meet a standard of excellence in attaining the outcomes important to the nation.” Among other actions, agencies are directed to reduce the time they take to make decisions.

Both appellants and agencies have also expressed concern about the amount of time it takes to adjudicate or otherwise process a case through the Board. As a result, the Board has reviewed its practice and procedure regulations and determined that certain timelines affecting the adjudication process could be shortened without adverse effects on the rights of the parties to a fair and impartial adjudication of appeals before the Board.

List of Subjects in 5 CFR Part 1201

• Administrative practice and procedure
• Civil rights
• Government employees

Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201—[AMENDED]

1. The authority citation for part 1201 continues to read as follows:

Authority: 5 U.S.C. 1204 and 7701, unless otherwise noted.

2. Revise § 1201.28 to read as follows:

§ 1201.28

Case suspension procedures.

(a) Joint requests. The parties may submit a joint request for additional time to pursue discovery or settlement. Upon receipt of such request, an order suspending processing of the case for a period up to 30 days may be issued at the discretion of the judge.

(b) Unilateral requests. In lieu of participating in a joint request, either party may submit a unilateral request for additional time to pursue discovery as provided in this subpart. Unilateral requests for additional time of up to 30 days may be granted for good cause shown at the discretion of the judge.

(c) Time for filing requests. The parties must file a joint request that the adjudication of the appeal be suspended within 45 days of the date of the acknowledgment order (or within 7 days of the appellant's receipt of the agency file, whichever date is later).

(d) Untimely requests. The judge may consider requests for suspensions that are filed after the time limit set forth in paragraph (c) of this section. Such requests may be granted at the discretion of the judge.

(e) Early termination of suspension period. The suspension period may be terminated prior to the end of the agreed upon period if the parties request the judge's assistance relative to discovery or settlement during the suspension period and the judge's involvement pursuant to that request is likely to be extensive.

(f) Limitation on suspension period. No case may be suspended for more than a total of 30 days under the provisions of this section.

3. Revise §§ 1201.72 and 1201.73 to read as follows:

§ 1201.72

Explanation and scope of discovery.

(a) Explanation. Discovery is the process, apart from the hearing, by which a party may obtain relevant information, including the identification of potential witnesses, from another person or a party, that the other person or party has not otherwise provided. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained to assist the parties in preparing and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. Those rules, however, are instructive rather than controlling.

(b) Scope. Discovery covers any nonprivileged matter that is relevant to the issues involved in the appeal, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Discovery requests that are directed to nonparties and nonparty Federal agencies and employees are limited to information that appears directly material to the issues involved in the appeal.

(c) Methods. Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written interrogatories, depositions, requests for production of documents or things for inspection or copying, and requests for admission.

(d) Limitations. The judge may limit the frequency or extent of use of the discovery methods permitted by these regulations. Such limitations may be imposed if the judge finds that the discovery sought is:

(1) Cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(2) The party seeking discovery has had sufficient opportunity by discovery in the action to obtain the information sought; or

(3) The burden or expense of the proposed discovery outweighs its likely benefit.

§ 1201.73

Discovery procedures.

(a) Discovery from a party. A party seeking discovery from another party must start the process by serving a request for discovery on the representative of the other party or the party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in § 1201.73(d), and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for discovery to an officer or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer or employee as necessary in providing relevant information that is available to the agency.

(b) Discovery from a nonparty, including a nonparty Federal agency. Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly. If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of the particular information sought. If the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the Board will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any Board-approved discovery request and subpoena on the individual or entity, or for arranging for their service.

(c) Responses to discovery requests. (1) A party, or a Federal agency that is not a party, must answer a discovery request within the time provided under paragraph (d)(2) of this section, either by furnishing to the requesting party the information or testimony requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection. Non-parties may respond to discovery requests by electronic mail if authorized by the requesting party.

(2) If a party fails or refuses to respond in full to a discovery request, or if a nonparty fails or refuses to respond in full to a Board-approved discovery order, the requesting party may file a motion to compel discovery. The requesting party must file the motion with the judge, and must serve a copy of the motion on the other party and on any nonparty entity or person from whom the discovery was sought. The motion must be accompanied by:

(i) A copy of the original request and a statement showing that the information sought is relevant and material; and

(ii) A copy of the response to the request (including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the statement. (See appendix IV to part 1201.)

(3) The other party and any other entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (d)(4) of this section.

(d) Time limits. (1) Parties who wish to make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.

(2) A party or nonparty must file a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 7 days of the date of service of the prior response, unless the parties are otherwise directed. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place.

(3) Any motion to depose a nonparty (along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (d)(1) of this section or as the judge otherwise directs.

(4) Any motion for an order to compel discovery must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel discovery must be filed with the judge within 10 days of the date of service of the motion.

(5) Discovery must be completed within the time the judge designates.

(e) Limits on the number of discovery requests. (1) Absent prior approval by the judge, interrogatories served by parties upon another party or a nonparty may not exceed 25 in number, including all discrete subparts.

(2) Absent prior approval by the judge, parties may not take more than 10 depositions.

(3) Requests to exceed the limitations set forth in paragraphs (a) and (b) of this section may be granted at the discretion of the judge. In considering such requests, the judge shall consider the factors identified in § 1201.72(d) of this part.

Dated: September 15, 2003.

Bentley M. Roberts, Jr.,

Clerk of the Board.