2011-25174. Practices and Procedures

AGENCY:

Merit Systems Protection Board.

ACTION:

Final rule.

SUMMARY:

The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to clarify procedures regarding the issuance and citation of nonprecedential Orders.

DATES:

This Final Rule is effective October 1, 2011.

FOR FURTHER INFORMATION CONTACT:

William D. Spencer, 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:

On October 5, 2010, the MSPB published an interim rule amending 5 CFR 1201.117. (75 FR 61321) The interim rule amended 5 CFR 1201.117(c) to make clear that the Board may, in its discretion, include discussion of issues raised in an appeal in a nonprecedential Order and amended 5 CFR 1201.117(b) to make clear that the Board may issue a final decision and, when appropriate, order a date for compliance with that decision.

The Board received comments concerning this interim rule from two individuals. The first commenter expressed unease with 5 CFR 1201.117(a)(5) and feared that this provision could be used to “scuttle” cases and asked that this provision be amended to state clearly that it would not be used to the detriment of employees and applicants for Federal positions. The interim rule did not amend 5 CFR 1201.117(a)(5). The Board has considered this comment and declines to amend this section.

A second commenter offered several observations. First, this commenter noted that there was no need for a separate class of nonprecedential Orders because the Board has in the past used footnotes to provide additional information in cases summarily denying petitions for review. The Board has considered this comment, but has determined that the goal of giving parties greater insight into the Board's reasoning in a particular case, without requiring the Board to issue a precedential decision, is best served by the issuance of nonprecedential Orders. This commenter also expressed the concern that if the Board's purpose was to avoid publication of nonprecedential Orders on the Board's Web site or by other reporting services, this goal would likely be thwarted by commercial reporting services with the result that two classifications of Board decisions would be published and ultimately cited by parties. The Board's goal was not to avoid publication of nonprecedential Orders. The Board will post nonprecedential Orders on its Web site. In addition, this final rule contains specific guidelines for the citation of nonprecedential Orders. Finally, this commenter opined that issuance and publication of nonprecedential Orders would complicate legal research, lead to confusion, and not serve the goal of open government. As noted above, the Board has included specific guidelines for the citation of nonprecedential Orders. Further, the Board is convinced that the issuance and publication of nonprecedential Orders will serve the goal of openness in the Board's decision-making by giving parties greater insight into the Board's reasoning.

The amendments in this final rule affect only 5 CFR 1201.117(c) and include updated procedures for the issuance of Opinions and Orders and nonprecedential Orders, explain that parties may cite nonprecedential Orders, and also explain that the Board is not bound by nonprecedential Orders in its future decisions.

The Board believes that issuing and publishing nonprecedential Orders that include a substantive review of issues presented in an appeal will serve the useful purpose of informing parties of the Board's reasoning in a particular appeal. In addition, the new regulation should ensure the maximum degree of transparency in the Board's decision-making to the greatest extent possible.

List of Subjects in 5 CFR Part 1201

• Administrative practice and procedure
• 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, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.

2. Revise § 1201.117 to read as follows:

§ 1201.117

Board decisions; procedures for review or reopening.

(a) In any case that is reopened or reviewed, the Board may:

(1) Issue a single decision that denies or grants a petition for review, reopens an appeal, and decides the case;

(2) Hear oral arguments;

(3) Require that briefs be filed;

(4) Remand the appeal so that the judge may take further testimony or evidence or make further findings or conclusions; or

(5) Take any other action necessary for final disposition of the case.

(b) The Board may affirm, reverse, modify, or vacate the initial decision of the judge, in whole or in part. The Board may issue a final decision and, when appropriate, order a date for compliance with that decision.

(c) The Board may issue a decision in the form of a precedential Opinion and Order or a nonprecedential Order.

(1) Opinion and Order. An Opinion and Order is a precedential decision of the Board and may be appropriately cited or referred to by any party.

(2) Nonprecedential Orders. A nonprecedential Order is one that the Board has determined does not add significantly to the body of MSPB case law. The Board may, in its discretion, include in nonprecedential Orders a discussion of the issue(s) to assist the parties in understanding the reason(s) for the Board's disposition in a particular appeal. Nonprecedential Orders are not binding on the Board or its administrative judges in any future appeals except when it is determined they have a preclusive effect on parties under the doctrines of res judicata (claim preclusion), collateral estoppel (issue preclusion), judicial estoppel, or law of the case. Parties may cite nonprecedential Orders, but such orders have no precedential value; the Board and its administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board's case law.

William D. Spencer,

Clerk of the Board.