Merit Systems Protection Board 2013 – Federal Register Recent Federal Regulation Documents
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Practices and Procedures
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
Notice is hereby given of the members of the Merit Systems Protection Board's Performance Review Board.
Practices and Procedures
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
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
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
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
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
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
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 https://www.mspb.gov/appeals/revisedappealform.htm.
Notice of Opportunity To File Amicus Briefs
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
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.
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