[Federal Register: September 18, 2003 (Volume 68, Number 181)]
[Rules and Regulations]
[Page 54651-54652]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se03-1]
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Rules and Regulations
Federal Register
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[[Page 54651]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Interim rule.
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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; (202) 653-7200, fax: (202) 653-7130 or e-mail: mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Bentley M. Roberts, Jr., Clerk of the
Board, Merit Systems Protection Board, 1615 M Street, NW., Washington,
DC 20419; (202) 653-7200, fax: (202) 653-7130 or e-mail: mspb@mspb.gov.
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.
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Accordingly, the Board amends 5 CFR part 1201 as follows:
PART 1201--[AMENDED]
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1. The authority citation for part 1201 continues to read as follows:
Authority: 5 U.S.C. 1204 and 7701, unless otherwise noted.
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2. Revise Sec. 1201.28 to read as follows:
Sec. 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.
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3. Revise Sec. Sec. 1201.72 and 1201.73 to read as follows:
Sec. 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
[[Page 54652]]
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.
Sec. 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 Sec. 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 Sec. 1201.72(d) of this part.
Dated: September 15, 2003.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 03-23857 Filed 9-17-03; 8:45 am]
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