Merit Systems Protection Board – Federal Register Recent Federal Regulation Documents

Civil Monetary Penalty Inflation Adjustment
Document Number: 2017-11541
Type: Rule
Date: 2017-06-05
Agency: Merit Systems Protection Board, Agencies and Commissions
This final rule adjusts the level of civil monetary penalties (CMPs) in regulations maintained and enforced by the Merit Systems Protection Board (MSPB) with both an initial ``catch-up'' and annual adjustment under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) and Office of Management and Budget (OMB) guidance.
Membership of the Merit Systems Protection Board's Performance Review Board
Document Number: 2017-05882
Type: Notice
Date: 2017-03-24
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Membership of the Merit Systems Protection Board's Performance Review Board
Document Number: 2016-20992
Type: Notice
Date: 2016-08-31
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Agency Information Collection Activities; Proposed Collection
Document Number: 2016-12562
Type: Notice
Date: 2016-05-27
Agency: Merit Systems Protection Board, Agencies and Commissions
The U.S. Merit Systems Protection Board (MSPB or the Board), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the Board's Appeal Form (MSPB Form 185) and corresponding e-Appeal Online system (e-Appeal). MSPB Form 185 and e-Appeal provides an efficient way for respondents to submit information required by the Board's regulations to initiate an appeal. The MSPB has requested an emergency extension of this information collection, which expires on May 31, 2016, for 90 days.
Notice of Opportunity To File Amicus Briefs
Document Number: 2016-00875
Type: Notice
Date: 2016-01-19
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) announces the opportunity to file amicus briefs in the matter of Mark Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W- 1, currently pending before the Board on petition for review. Additional information concerning the question on which the Board invites amicus briefing in Abernathy and the required format and length of amicus briefs can be found in the Supplementary Information below.
Practices and Procedures
Document Number: 2015-27652
Type: Rule
Date: 2015-10-30
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to clarify that parties have a right to discovery under the MSPB's existing discovery procedures in compliance proceedings.
Agency Information Collection Activities; Proposed Collection
Document Number: 2015-15047
Type: Notice
Date: 2015-06-19
Agency: Merit Systems Protection Board, Agencies and Commissions
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) announces that it is planning to submit a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB). Before submitting this ICR to OMB for review and approval, MSPB is soliciting comments on specific aspects of the proposed information collection as described below.
Practices and Procedures
Document Number: 2015-08880
Type: Rule
Date: 2015-04-17
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure in order to correct a minor drafting error in the Board's regulations.
Practices and Procedures
Document Number: 2015-01575
Type: Rule
Date: 2015-01-28
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) hereby amends its regulations governing how jurisdiction is established over Board appeals.
Practices and Procedures
Document Number: 2014-25212
Type: Rule
Date: 2014-10-22
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) is adopting as final an interim rule that adapted the Board's regulations to legislative changes which created new laws applicable to the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs.
Special Panel; Oral Argument; Reynaldo Alvara v. Department of Homeland Security
Document Number: 2014-21237
Type: Notice
Date: 2014-09-05
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the oral argument in the case of Reynaldo Alvara v. Department of Homeland Security (MSPB Docket No. DA- 0752-10-0223-E-1 and EEOC Petition No. 0320110053) before the Special Panel comprised of Dennis P. Walsh, Chairman, Special Panel; Anne M. Wagner, Vice Chairman, Merit Systems Protection Board; and Chai R. Feldblum, Commissioner, Equal Employment Opportunity Commission. See 5 U.S.C. 7702(d) and 5 CFR 1201.171.
Practices and Procedures; Appeal of Removal or Transfer of Senior Executive Service Employees of the Department of Veterans Affairs; Corrections
Document Number: 2014-19851
Type: Rule
Date: 2014-08-21
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) published an interim final rule in the Federal Register on August 19, 2014, amending its rules of practice and procedure to adapt the Board's regulations to legislative changes that have created new laws applicable to the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs. This document corrects the interim final rule by revising these sections.
Practices and Procedures; Appeal of Removal or Transfer of Senior Executive Service Employees of the Department of Veterans Affairs
Document Number: 2014-19589
Type: Rule
Date: 2014-08-19
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to adapt the Board's regulations to legislative changes that have created new laws applicable to the removal or transfer of Senior Executive Service employees of the Department of Veterans Affairs.
Sunshine Act Meeting
Document Number: 2014-19351
Type: Notice
Date: 2014-08-14
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the scheduling of a Sunshine Act Meeting on the proposed 2015-2018 research agenda of the Merit System Protection Board's Office of Policy and Evaluation.
Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery
Document Number: 2014-16762
Type: Notice
Date: 2014-07-17
Agency: Merit Systems Protection Board, Agencies and Commissions
As part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery, the Merit Systems Protection Board (MSPB) submitted a Generic Information Collection Request (Generic ICR), ``Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery,'' to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et. seq.).
Request for Information: Attorneys Interested in Representing Appellate Clients Pro Bono
Document Number: 2014-13860
Type: Notice
Date: 2014-06-13
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) invites all attorneys interested in providing pro bono representation to pro se appellants in their appeals of Board decisions to the U.S. Court of Appeals for the Federal Circuit to submit their names and contact information to MSPB.
Notice of Opportunity To Submit Ideas for Merit Systems Studies
Document Number: 2014-10333
Type: Notice
Date: 2014-05-06
Agency: Merit Systems Protection Board, Agencies and Commissions
The U.S. Merit Systems Protection Board (MSPB or Board) is updating its research agenda and seeks suggestions about possible topics of study.
Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery
Document Number: 2014-08023
Type: Notice
Date: 2014-04-10
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on the ``Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery'' for approval under the Paperwork Reduction Act (PRA). This collection was developed as part of a Federal Government-wide effort to streamline the process for seeking feedback from the public on service delivery. This notice announces our intent to submit this collection to the Office of Management and Budget (OMB) for approval and solicits comments on specific aspects for the proposed information collection.
Practices and Procedures
Document Number: 2014-07443
Type: Proposed Rule
Date: 2014-04-03
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board), following an internal review of MSPB regulations and after consideration of comments received from MSPB stakeholders, is proposing to amend its rules of practice and procedure by amending its regulations governing how jurisdiction is established over Board appeals.
Practices and Procedures
Document Number: 2013-26783
Type: Proposed Rule
Date: 2013-11-08
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) invites public input concerning options the MSPB is considering to revise its regulations governing how jurisdiction is established over Board appeals.
Membership of the Merit Systems Protection Board's Performance Review Board
Document Number: 2013-26405
Type: Notice
Date: 2013-11-05
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Practices and Procedures
Document Number: 2013-22439
Type: Rule
Date: 2013-09-16
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) is adopting as final an interim rule that conformed the Board's regulations to legislative changes that amended whistleblower protections for Federal employees and the penalties available in cases where the MSPB determines that a Federal employee or a State or local officer or employee violated restrictions on partisan political activity.
Practices and Procedures
Document Number: 2013-17592
Type: Rule
Date: 2013-07-23
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to reflect the relocation of its Washington Regional Office.
Practices and Procedures
Document Number: 2013-17508
Type: Rule
Date: 2013-07-22
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) is adopting as final an interim rule that amended the requirement that agencies provide a copy of the MSPB appeal form when the agency issues a decision notice to an employee on a matter that is appealable to MSPB.
Practices and Procedures
Document Number: 2013-15633
Type: Rule
Date: 2013-07-02
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to conform the Board's regulations to legislative changes that amended whistleblower protections for Federal employees and the penalties available in cases where the MSPB determines that a Federal employee or a State or local officer or employee violated restrictions on partisan political activity.
Practices and Procedures
Document Number: 2013-09223
Type: Rule
Date: 2013-04-19
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or Board) hereby amends its rules of practice and procedure in order to correct several minor errors inadvertently introduced into the Board's regulations during a recent comprehensive revision of the Board's adjudicatory regulations.
Practices and Procedures
Document Number: 2013-08503
Type: Rule
Date: 2013-04-11
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or Board) hereby amends its rules of practice and procedure to allow federal agencies, when issuing a decision notice to an employee on a matter that is appealable to MSPB, to satisfy the obligation to provide a copy of the MSPB appeal form (MSPB Form 185) to an employee by providing the employee with access to a copy of the appeal form, i.e., in paper or electronic form.
Agency Information Collection Activities; Proposed Collection
Document Number: 2013-07692
Type: Notice
Date: 2013-04-03
Agency: Merit Systems Protection Board, Agencies and Commissions
In compliance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506 and 3507), the Merit Systems Protection Board (MSPB or Board) announces that an Information Collection Request (ICR) was forwarded to the Office of Management and Budget (OMB) for review and approval. The ICR is for MSPB's revised Appeal Form (MSPB Form 185). We request public comments on the revised form, which is available for review (along with the comments previously received) on MSPB's Web site at http://www.mspb.gov/appeals/revisedappealform.htm.
Notice of Opportunity To File Amicus Briefs
Document Number: 2013-06349
Type: Notice
Date: 2013-03-20
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or Board) announces the opportunity to file amicus briefs in the matter of Barbara R. King v. Department of the Air Force, MSPB Docket Number DA-0752-09-0604-P-1, currently pending before the Board on interlocutory appeal. The administrative judge certified for interlocutory review the question of whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 199, with regard to damages may be applied retroactively to cases pending prior to its effective date. Of particular relevance in King is the question of the retroactive effect of section 107(b) of the WPEA, which addresses damages available to individuals who have suffered reprisal for protected disclosures or activities. Prior to enactment of the WPEA, the corrective action available to such individuals under the Whistleblower Protection Act (WPA) included reasonable and foreseeable consequential damages, but not compensatory, or non-pecuniary, damages. See Bohac v. Department of Agriculture, 239 F.3d 1334, 1337-43 (Fed. Cir. 2001). However, under section 107(b) of the WPEA, corrective action may also include ``compensatory damages (including interest, reasonable expert witness fees, and costs).'' Therefore, the Board must determine in King whether to apply the WPEA standard or the WPA standard in determining what corrective action is available in appeals pending prior to the effective date of the WPEA. In King, the appellant's protected disclosures and the agency's retaliatory personnel action occurred in 2009. The appellant filed her initial Board appeal in 2009, and the administrative judge issued an initial decision on October 3, 2012, finding, in relevant part, that the appellant established reprisal for whistleblowing. The initial decision became the final decision of the Board on November 7, 2012, after neither party filed a petition for review. The appellant filed her request for compensatory damages on December 17, 2012. The WPEA was enacted on November 27, 2012, and became effective on December 27, 2012. Interested persons or organizations may submit amicus briefs or other comments on the question presented in King no later than April 12, 2013. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double- spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides. All amicus briefs received will be posted on the Board's Web site at www.mspb.gov/SignificantCases.
Notice of Opportunity To File Amicus Briefs
Document Number: 2013-02879
Type: Notice
Date: 2013-02-08
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or Board) announces the opportunity to file amicus briefs in the matter of Thomas F. Day v. Department of Homeland Security, MSPB Docket Number SF-1221-12-0528-W- 1, currently pending before the Board on interlocutory appeal. The administrative judge certified for interlocutory review the question of whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 199, may be applied retroactively to pending cases involving conduct occurring prior to its effective date. Of particular relevance in Day is the question of the retroactive effect of section 101(b)(2)(B) of the WPEA, which provides in relevant part that a disclosure made to an alleged wrongdoer or during an employee's normal course of duties is not excluded from protection against reprisal under 5 U.S.C. 2302(b)(8). In Huffman v. Office of Personnel Management, 263 F.3d 1341, 1352 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit held that a disclosure made as part of an employee's normal duties, and through normal channels, was not protected under the Whistleblower Protection Act (WPA). The court in Huffman further held that a complaint made to a supervisor regarding the supervisor's own alleged wrongdoing was not protected under the WPA. Id. at 1350. The Board has applied the holdings in Huffman as binding precedent. See, e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ] 15 (2011). Therefore, the Board must determine in Day whether to apply the WPEA standard or the Huffman standard in determining whether disclosures that occurred prior to the effective date of the WPEA are entitled to protection. Information about the Day case and the WPEA may be found on the Board's Web site at www.mspb.gov/SignificantCases. Interested individuals or organizations may submit amicus briefs or other comments on the question presented in Day no later than March 1, 2013. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides. All amicus briefs received will be posted on the Board's Web site at www.mspb.gov/ SignificantCases after March 1, 2013.
Agency Information Collection Activities; Proposed Collection
Document Number: 2012-29072
Type: Notice
Date: 2012-12-03
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) intends to request approval of a revised information collection from the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 and 3507). The MSPB Appeal Form (MSPB Form 185) has been revised. At this time, the MSPB is requesting public comments on the revised MSPB Form 185, which is available for review on the MSPB's Web site at http://www.mspb.gov.
Agency Information Collection Activities; Emergency Reinstatement of Previously Approved Collection
Document Number: 2012-27995
Type: Notice
Date: 2012-11-19
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) is requesting approval from the Office of Management and Budget (OMB) to reinstate Information Collection Request (ICR) 3124-0009, E-Appeal/US Merit Systems Protection Board Appeal Form which expired on March 31, 2012. This ICR is necessary for individuals who file appeals with MSPB. The form serves as a guide to appellants in providing all needed information. The MSPB is requesting emergency reinstatement approval from OMB by November 27, 2012. A revised version of the MSPB Appeal Form (Form 185) was approved by OMB on November 5, 2012. At this time, MSPB is requesting public comments on the previous version of Form 185, which is available for review on MSPB's Web site at http:// www.mspb.gov/appeals/forms.htm.
Agency Information Collection Activities; Emergency Reinstatement of Previously Approved Collection
Document Number: 2012-26534
Type: Notice
Date: 2012-10-29
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) is requesting approval from the Office of Management and Budget (OMB) to reinstate Information Collection Request (ICR) 3124-0009, E-Appeal/US Merit Systems Protection Board Appeal Form which expired on March 31, 2012. This ICR is necessary for individuals who file appeals with MSPB. The form serves as a guide to appellants in providing all needed information. The MSPB is requesting Emergency Reinstatement approval from OMB by November 9, 2012. The MSPB Appeal Form (Form 185) has been revised. At this time, MSPB is requesting public comments on Form 185, which is available for review on MSPB's Web site at http:// www.mspb.gov.
Privacy Act of 1974; Amendment of Privacy Act System of Records
Document Number: 2012-26241
Type: Notice
Date: 2012-10-25
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) is issuing public notice of its intent to amend a Government-wide system of records that it maintains subject to the Privacy Act of 1974 (5 U.S.C. 552a). MSPB/ GOVT-1, ``Appeals and Case Records,'' is being amended to reflect that its location is in the Office of the Clerk of the Board. Also, the purpose(s) under the authority for maintenance of the system was amended to reflect that these records may be used to document and adjudicate appeals and other matters arising under the Board's appellate and original jurisdiction; locate appeal documents and files, physical or electronic; provide statistical data for reports, staff productivity, and other management functions; and provide information to support other statutory functions of the Board, such as studies of the civil service under 5 U.S.C. 1204(a)(3), and review of regulations of the Office of Personnel Management (OPM) under 5 U.S.C. 1204(f), and reporting under 5 U.S.C. 1206. The MSPB is also adding a routine use: release to the public, including via the agency's Web site following issuance of a decision. MSPB/GOVT-1
Practices and Procedures
Document Number: 2012-24130
Type: Rule
Date: 2012-10-12
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board), following an internal review of MSPB regulations, publication of a proposed rule, and consideration of comments received in response to the proposed rule, hereby amends its rules of practice and procedure in order to improve and update the MSPB's adjudicatory processes.
Agency Information Collection Activities; Proposed Collection
Document Number: 2012-18939
Type: Notice
Date: 2012-08-03
Agency: Merit Systems Protection Board, Agencies and Commissions
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) is submitting a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. This ICR describes the nature of the information collection and its estimated burden and cost.
Membership of the Merit Systems Protection Board's Performance Review Board
Document Number: 2012-15802
Type: Notice
Date: 2012-06-28
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Practices and Procedures
Document Number: 2012-13655
Type: Proposed Rule
Date: 2012-06-07
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board), following an internal review of MSPB regulations and after consideration of comments received from MSPB stakeholders, is proposing to amend its rules of practice and procedure in order to improve and update the MSPB's adjudicatory processes.
Agency Information Collection Activities; Proposed Collection
Document Number: 2012-10349
Type: Notice
Date: 2012-04-30
Agency: Merit Systems Protection Board, Agencies and Commissions
In compliance with the Paperwork Reduction Act (PRA), the U.S. Merit Systems Protection Board (MSPB) announces that it is planning to submit a request for a three-year extension of an Information Collection Request (ICR) to the Office of Management and Budget (OMB). Before submitting this ICR to OMB for review and approval, MSPB is soliciting comments on specific aspects of the proposed information collection as described below.
Privacy Act; Termination of Three Systems of Records
Document Number: 2012-9530
Type: Notice
Date: 2012-04-20
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) is terminating the following Systems of Records: MSPB/Internal 5, ``Workload and Assignment Tracking System;'' MSPB/Internal 7, ``Administrative Data System;'' and MSPB/Central 1, ``Assignment and Correspondence Tracking System.'' They are no longer in use.
Oral Argument
Document Number: 2011-30659
Type: Notice
Date: 2011-11-29
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the scheduling of oral argument in the matters of: James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1; Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1; Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1; Cynthia E. Lundy v. U.S. Postal Service; MSPB Docket Number AT-0353-11-0369-I-1; and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752- 11-0196-I-1. Date and Time: Tuesday, December 13, 2011, at 10 a.m. Place: The United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, NW., Washington DC. Status: Open.
Mandatory Electronic Filing for Agencies and Attorneys at Washington Regional Office and Denver Field Office
Document Number: 2011-26315
Type: Rule
Date: 2011-10-13
Agency: Merit Systems Protection Board, Agencies and Commissions
This rule informs the public that the U.S. Merit Systems Protection Board (MSPB or Board) is launching a pilot program under which the Washington Regional Office (WRO) and Denver Field Office (DEFO) will require all pleadings filed by agencies and attorneys who represent appellants in MSPB proceedings to be electronically filed (e- filed). This requirement will apply to all pleadings except those containing classified information or Sensitive Security Information (SSI) in all adjudicatory proceedings before the Board. Any agency or appellant's attorney who believes e-filing would create an undue burden may request an exemption from the administrative judge; however, requests will generally be considered only for pleadings that include scanned material, for example, not documents prepared and saved in a word processing program, and will be granted only when supported by a specific and detailed explanation, such as when the submission of a voluminous amount of scanned documents would create a hardship for a party.
Practices and Procedures
Document Number: 2011-25174
Type: Rule
Date: 2011-09-30
Agency: Merit Systems Protection Board, Agencies and Commissions
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.
Notice of Opportunity To File Amicus Briefs
Document Number: 2011-24439
Type: Notice
Date: 2011-09-23
Agency: Merit Systems Protection Board, Agencies and Commissions
These cases involve employees who were required to have security clearances and were indefinitely suspended from their positions pending determinations concerning whether their security clearances should be revoked. The Board has recognized that, under certain circumstances, an agency may indefinitely suspend an employee based upon the suspension of access to classified information or pending the agency's investigation regarding that access, where the access is a condition of employment. See, e.g., Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ] 13 (2010); Jones v. Department of the Navy, 48 M.S.P.R. 680, 682, 689, aff'd as modified on recons., 51 M.S.P.R. 607 (1991), aff'd, 978 F.2d 1223 (Fed. Cir. 1992). On appeal of such an action, the Board lacks the authority to review the merits of the agency's decision to suspend an employee's access to classified material. Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988). The Board may determine, however, whether the agency afforded an employee minimum due process with respect to the employee's constitutionally protected property interest in employment. See, e.g., Johnson v. Department of the Navy, 62 M.S.P.R. 487, 490-91 (1994); Kriner v. Department of the Navy, 61 M.S.P.R. 526, 531-35 (1994). In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), the Court held that an agency's failure to provide a tenured public employee with an opportunity to present a response, either in person or in writing, to an appealable agency action that deprives him of his property right in his employment constitutes an abridgement of his constitutional right to minimum due process of law, i.e., prior notice and an opportunity to respond. In Gilbert v. Homar, 520 U.S. 924 (1997), the Court explained, in a case involving the suspension of a state employee, how its due process analysis would apply to discipline short of termination. The Board may also review whether the agency provided the employee with the procedural protections set forth in 5 U.S.C. 7513 in taking an action. Egan, 484 U.S. at 530; see also Cheney v. Department of Justice, 479 F.3d 1343, 1344-45 (Fed. Cir. 2007); King v. Alston, 75 F.3d 657, 661-63 (Fed. Cir. 1996). The Board applies a harmful error analysis in considering statutory violations. See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1282 (Fed. Cir. 2011); Handy v. U.S. Postal Service, 754 F.3d 335, 337-38 (Fed. Cir. 1985). The cases thus present the following legal issues: (1) Should the Board apply the balancing test set forth in Homar, 520 U.S. 924, in determining whether an agency violates an employee's constitutional right to due process in indefinitely suspending him or her pending a security clearance determination; (2) If so, does that right include the right to have a deciding official who has the authority to change the outcome of the proposed indefinite suspension; (3) If the Board finds that an agency did not violate an employee's constitutional right to due process in this regard, how should the Board analyze whether the agency committed harmful procedural error in light of the restrictions set forth in Egan, 484 U.S. 518, on the Board's authority to analyze the merits of an agency's security clearance determination. Interested parties may submit amicus briefs or other comments on these issues no later than October 19, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides.
Notice of Opportunity To File Amicus Briefs
Document Number: 2011-18647
Type: Notice
Date: 2011-07-25
Agency: Merit Systems Protection Board, Agencies and Commissions
The Board announces the opportunity to file amicus briefs in
Public Availability of the Merit Systems Protection Board's FY 2010 Service Contract Inventory
Document Number: 2011-17976
Type: Notice
Date: 2011-07-18
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB) is publishing this notice to advise the public of the availability of its FY 2010 Service Contract Inventory as required by Section 743 of Division C of the Consolidated Appropriations Act of 2010 (Pub. L. 111-117). This inventory provides information on service contract actions over $25,000 awarded in FY 2010. The inventory was developed in accordance with guidance issued on November 5, 2010 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). The OFPP's guidance is available at: http://www.whitehouse.gov/sites/default/ files/omb/procurement/memo/service-contract-inventories-guida nce- 11052010.pdf. The MSPB's inventory is posted on its Web site at http:// www.mspb.gov/contact/contracting.htm.
Merit Systems Protection Board (MSPB or Board) Provides Notice of Opportunity To File Amicus Briefs in the Matter of Michael B. Graves v. Department of Veterans Affairs
Document Number: 2011-13737
Type: Notice
Date: 2011-06-03
Agency: Merit Systems Protection Board, Agencies and Commissions
In Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245 (2010), and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 (2010), which involved appeals filed under the Veterans Employment Opportunities Act of 1998 (VEOA), the Board held that the agency's use of veterans' preference status as a ``tie-breaker'' in making selections for excepted service ``hybrid'' positions under 38 U.S.C. 7401(3), which includes the Medical Records Technician (MRT) positions at issue in these cases, was inadequate, and that the agency must comply with the competitive service veterans' preference requirements set forth in title 5 of the United States Code. The Board reasoned that although title 5 provisions such as those relating to veterans' preference rights do not apply to appointments listed under 38 U.S.C. 7401(1) (physicians, dentists, etc.) because those appointments are made ``without regard to civil-service requirements,'' ``hybrid'' employees retain many title 5 rights, including the adverse action and reduction in force (RIF) rights mentioned in 38 U.S.C. 7403(f)(3). The Board noted that section 7403(f)(2) provides that ``[i]n using such authority to appoint individuals to such positions, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,'' and that section 7403(f)(3) provides that ``the applicability of the principles of preference referred to in paragraph (2) * * * shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.'' Based on its reading of these two provisions, the Board concluded that title 5 competitive service veterans' preference requirements apply to appointments made to 38 U.S.C. 7401(3) positions such as MRTs. The Board also suggested in Graves, 114 M.S.P.R. 209, ]] 12-15, that the agency violated veterans' preference requirements set forth in the Office of Personnel Management's Delegated Examining Operations Handbook and VetGuide, and that corrective action was therefore warranted. The Graves cases are now before the Board on petition for review after remand. The agency has raised several arguments regarding the above findings. The agency asserts that 38 U.S.C. 7403(f)(3) does not address the appointment of individuals because its plain language refers multiple times to individuals who have already been appointed. Thus, the agency contends that the Board's decisions do not give effect to the word ``appointed'' in section 7403(f)(3), and under the statutory construction maxim noscitur a sociis (a word is defined by the company it keeps), the reference in section 7403(f)(3) to ``matters relating to * * * the applicability of the principles of preference referred to in paragraph (2)'' should mean matters relating to veterans' preference principles that apply to individuals who have already been appointed, like ``matters relating to'' adverse actions, RIFs, part-time employees, disciplinary actions, and grievance procedures. The agency also contends that the legislative history for 5 U.S.C. 7403(f)(2)-(3) indicates that a Senate committee specifically intended for the agency to apply a tie-breaker principle to ``hybrid'' applicants, and that Congress did not intend to require the agency to apply title 5 rights to applicants for employment. The agency further asserts that in 1984 it provided notice in the Federal Register that it would be implementing the ``principles of preference'' requirement in the statute through an internal circular that called for the use of the ``tie-breaker'' principle that has been in effect from 1984 through the Board's decisions in Graves. We also note that while section 7403(f)(2) calls for applying ``the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,'' such application appears to relate to the use of ``such authority,'' i.e., the ``authority'' mentioned in 38 U.S.C. 7403(a), which in turn calls for appointments to be made ``without regard to civil-service requirements.'' See Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1248 (Fed. Cir. 2003) (under 38 U.S.C. 7403(a), title 5 provisions, including those regarding veterans' preference rights, do not apply to appointments made ``without regard to civil service requirements''). Further, deference is generally given to an agency's consistent, long-standing regulatory interpretation of an ambiguous statute as long as it is reasonable, Rosete v. Office of Personnel Management, 48 F.3d 514, 518-19 (Fed. Cir. 1995), and Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it adopts a new law incorporating sections of a prior law without change, Fitzgerald v. Department of Defense, 80 M.S.P.R. 1, 14 (1998). The Graves cases thus present the following legal issues: (1) Does 38 U.S.C. 7403(f)(2) require the agency to apply title 5 veterans' preference provisions, including but not limited to 5 U.S.C. 3305(b) and 5 CFR 332.311(a), which the Board found the agency violated in not accepting the appellant's late-filed application, see Graves, 114 M.S.P.R. 245, ]] 12-15, in filling ``hybrid'' positions under 38 U.S.C. 7401(3); (2) does the legislative history for the applicable statutory provisions offer guidance regarding how those provisions should be interpreted; (3) are the Delegated Examining Operations Handbook and VetGuide ``statute[s] or regulation[s]'' relating to veterans' preference within the meaning of 5 U.S.C. 3330a(a)(1)(A), such that a violation of a provision in those documents would constitute a violation under VEOA; (4) does the law of the case doctrine apply to the Board's rulings in these cases; and (5) if so, is there a basis for finding that the ``clearly erroneous'' exception to that doctrine has been met? In addition, we note that the resolution of the above issues may affect whether the Board has jurisdiction over VEOA appeals filed by ``hybrid'' applicants. Interested parties may submit amicus briefs or other comments on these issues no later than June 30, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides.
Membership of the Merit Systems Protection Board's Performance Review Board
Document Number: 2011-6239
Type: Notice
Date: 2011-03-17
Agency: Merit Systems Protection Board, Agencies and Commissions
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery
Document Number: 2011-5589
Type: Notice
Date: 2011-03-11
Agency: Merit Systems Protection Board, Agencies and Commissions
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Merit Systems Protection Board (MSPB) has submitted a Generic Information Collection Request (Generic ICR): ``Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery'' to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.).
Practices and Procedures, Board Meetings
Document Number: 2011-4317
Type: Rule
Date: 2011-02-28
Agency: Merit Systems Protection Board, Agencies and Commissions
The Merit Systems Protection Board (MSPB or the Board) is amending its open meeting regulations to ensure consistency with the Government in the Sunshine Act.