[Federal Register: April 18, 2008 (Volume 73, Number 76)]
[Rules and Regulations]
[Page 21019-21023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ap08-1]
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Rules and Regulations
Federal Register
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[[Page 21019]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Parts 1201, 1210, and 1215
Final Regulatory Changes Regarding Department of Homeland
Security Personnel System
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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SUMMARY: As the Merit Systems Protection Board (MSPB or ``the Board'')
explained in its notice of Interim Regulatory Changes Regarding
Department of Homeland Security Personnel System, Federal Register, 72
FR 56883, October 5, 2007, it is revising its regulations to clarify
the procedures applicable to MSPB processing and adjudication of cases
arising under the Department of Homeland Security's new human resources
management system established pursuant to the Homeland Security Act of
2002. As is discussed below, these revisions to the Board's regulations
are necessary to reconcile the Board's regulations and procedures with
final regulations published by the Department of Homeland Security
(DHS) and the Office of Personnel Management (OPM) on February 1, 2005.
DATES: This rule is effective on April 18, 2008.
FOR FURTHER INFORMATION CONTACT: William D. Spencer, 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: (Regarding Issuance of the Interim
Regulatory Changes): On November 25, 2002, the President signed into
law H.R. 5005, the Homeland Security Act of 2002 (Pub. L. 107-296),
which established DHS and authorized the DHS Secretary and OPM Director
to jointly establish a new human resources management system within
DHS. Pursuant to this grant of authority, on February 20, 2004, DHS and
OPM published proposed regulations (69 FR 8030) for this new human
resources system. Thereafter, on February 1, 2005, DHS and OPM
published final regulations (70 FR 5272) implementing the new DHS
personnel system.
Afterwards, the National Treasury Employees Union, American
Federation of Government Employees, National Federation of Federal
Employees, National Association of Agriculture Employees, and Metal
Trades Department of the AFL-CIO, which collectively represent
approximately 50,000 DHS bargaining unit employees, challenged portions
of the regulations governing labor-management relations, adverse
actions, and the appeals process. One of the provisions of the DHS
regulations that was challenged is 5 CFR 9701.706(k)(6), which changes
the standard by which the Board may mitigate penalties imposed by DHS.
Pursuant to that provision, an arbitrator, adjudicating official or the
Board may not modify such a penalty unless it is so disproportionate to
the basis for the action as to be wholly without justification. The
U.S. District Court for the District of Columbia enjoined the
mitigation provision. NTEU v. Chertoff, 385 F.Supp.2d 1, 32-33
(D.D.C.), modification denied by, 394 F.Supp.2d 137 (D.D.C. 2005). A
panel of the U.S. Court of Appeals for the D.C. Circuit reversed on
this issue, holding that the question of the mitigation standard's
legality was not ripe for judicial review. NTEU v. Chertoff, 452 F.3d
839, 855 (D.C. Cir. 2006). Therefore, the MSPB's regulations include
that mitigation standard.
Subparts F and G of the final DHS/OPM regulations concern adverse
actions and appeals and will have a significant effect on the way the
MSPB processes and adjudicates appeals of adverse actions by DHS
employees. In addition to limiting the types of cases that may be
appealed to the Board, the final DHS/OPM regulations make many changes
in how the Board will process and adjudicate appeals by DHS employees,
including:
Shortened filing deadlines;
Streamlined and limited discovery procedures;
New settlement procedures;
Limitations on the right to a hearing;
Summary judgment and limitation of issues;
Time limits within which the Board must issue decisions;
Procedures for Board review of a decision of the DHS Mandatory
Removal Panel (MRP); and,
Changes in certain standards of review.
In order to accommodate these substantive and procedural changes
with the least possible confusion and delay, the Board determined to
publish interim amendments to its regulations. Specifically, these
changes involve amendments to 5 CFR parts 1201 and the promulgation of
new regulations applicable only to procedures for appeals, petitions
for review, and requests for review of MRP decisions brought by DHS
employees. These new DHS-specific regulations were published in a
revised 5 CFR part 1210. The regulations previously found in 5 CFR part
1210 were moved, redesignated as 5 CFR part 1215, and are otherwise not
changed.
A brief summary of the changes contained in the interim amendments
and the final amendments contained herein is as follows:
1201.3(a)(19) and (20) are amended and 1201.3(a)(21) is added to
reflect the Board's jurisdiction over certain actions taken by DHS (an
unrelated housekeeping change is also made to 1201.3(a)(20));
1201.3(b)(3) is amended to reflect the Board's jurisdiction over
certain actions taken by DHS and to make clear that 5 CFR parts 1201,
1208 and 1209 apply to proceedings brought under 5 CFR part 1210,
except as otherwise provided therein;
1201.11 is amended to state that the regulations of subpart B of 5
CFR part 1201 apply to appellate proceedings covered by part 1210
unless other specific provisions are made in that part;
1201.14(i) is amended to indicate that the Board's rules applicable
to electronic signatures by e-filers apply to any regulation in part
1210 that requires a signature;
1201.21 is renumbered and amended to delete an outdated reference
to Appendix 1. A new section (1201.21(b)) addresses notice of appeal
rights when DHS issues a decision notice to an employee on a matter
that is appealable to the Board.
[[Page 21020]]
1201.22(b)(2) is amended to indicate that additional time limits
applicable to certain appeals by DHS employees are contained in part
1210.
The debt management regulations formerly in part 1210 are moved and
redesignated as part 1215. As is discussed in greater detail below, new
regulations regarding appeals by DHS employees are added in part 1210.
Parts 1211, 1212, 1213, and 1214 are reserved for future agency-
specific regulations.
The new regulations in part 1210 apply to Board proceedings in
appeals of certain DHS adverse actions that are covered under subparts
F and G of 5 CFR part 9701. Part 1210 consists of four subparts.
Subpart A of part 1210 discusses the scope of part 1210 and the
Board's policy with regard to application of part 1210 in a fair and
efficient manner (1210.1); addresses MSPB jurisdiction (1210.2); sets
forth the applicability of 5 CFR parts 1201, 1208, and 1209 to appeals
by DHS employees (1210.3); defines certain words and terms used within
part 1210 (1210.4); describes when and how the Board and/or an
adjudicating official may revoke, amend or waive the regulations in
part 1210 (1210.5); and adds a savings provision indicating that part
1210 does not apply to adverse actions proposed prior to the date of an
affected employee's coverage under 5 CFR part 9701, subpart G (1210.6).
Subpart B of part 1210 sets forth procedures for appeals of actions
taken under 5 CFR Part 9701, Subpart F, including agency
responsibilities regarding notice of appeal rights (1210.10);
procedures for filing an appeal (1210.11); representation by, and
disqualification of, representatives (1210.12); burden and degree of
proof and affirmative defenses (1210.13); required disclosure and the
scope of discovery (1210.14); discovery procedures (1210.15);
intervention by the Director of OPM (1210.16); procedures applicable to
settlement (1210.17); case suspension procedures (1210.18); the right
to a hearing (1210.19); summary judgment (1210.20); and requirements
pertaining to the adjudicating official's initial decision, including
completion deadlines and interim relief (1210.21).
Subpart C of part 1210 addresses procedures applicable to petitions
for review of initial decisions and petitions for reconsideration,
including requirements such as who may file and the use of electronic
filing (1210.30(a)); time limits applicable to petitions for review,
cross petitions for review and responses (1210.30(b)); the proper place
for filing petitions for review, cross petitions for review, and
responses (1210.30(c)); time limits within which the Board must render
its decision (1210.30(d)); the ramifications of the Board's failure to
meet such time limits (1210.30(e)); and requirements applicable to an
OPM request for reconsideration (1210.31).
Subpart D of part 1210 addresses MSPB review of decisions of the
Mandatory Removal Panel (MRP), including jurisdiction and procedures
and time limits applicable to a request for review (1210.40); the
standard of review and time limits applicable to a decision by the
Board (1210.41); intervention by the Director of OPM (1210.42);
finality of Board decisions and judicial review (1210.43); and requests
for reconsideration (1210.44).
Availability of Documents
You can get an electronic copy of the entire set of amendments to 5
CFR part 1201 and the entirety of 5 CFR part 1210 using the Internet by
visiting the Merit System Protection Board's Web page at http://
www.mspb.gov. In addition, paper copies may be obtained by writing or
calling the individual in the FOR FURTHER INFORMATION CONTACT section.
Make sure to identify this final rule as the final regulatory changes
regarding the Department of Homeland Security Personnel System.
Summary and Analysis of the Comments Received on the Interim
Regulatory Changes: The Board's Federal Register notice of interim
regulatory changes provided for a comment period of 30 days after date
of publication, which ended on Monday, November 5, 2007. The Board
received five comments, three from individuals, and the others from the
National Treasury Employees Union and the American Federation of
Government Employees. As explained below, upon consideration of these
comments, the Board is making several amendments to its interim
regulatory changes. The comments are summarized and discussed below.
Comment 1: An employee from the Transportation Security
Administration stated a preference for the MSPB's appeals process under
5 CFR Part 1201 to the TSA's Disciplinary Review Board process. The
commenter made the following statements:
``I know that I would want to have the option of thirty days to
appeal an adverse action versus the 20 days proposed. I beg of you
to keep in place the current appeal rights for all employees in the
Federal system.''
MSPB's Response to Comment 1: Pursuant to the DHS's regulations, at
5 CFR 9701.702, DHS's appellate procedures supersede those of the MSPB
to the extent that there may be inconsistencies between the procedures.
The Board had the options of following the DHS regulations or issuing
its own conforming regulations. It chose the latter option. In order
for the Board's regulations to be conforming, they must provide for an
appeal period of 20 days instead of 30 days.
Comment 2: An employee from the Transportation Security
Administration raised concerns about the difficulties in receiving pay
raises.
MSPB's Response to Comment 2: This comment did not address any of
the interim regulatory changes in 5 CFR Part 1201 or 1210.
Comment 3: A DHS employee expressed opposition to the
implementation of the DHS personnel management system as a whole.
MSPB's Response to Comment 3: This comment did not address any of
the interim regulatory changes in 5 CFR Part 1201 or 1210.
Comment 4: The National Treasury Employees Union (NTEU) commented
on 11 provisions in the interim regulatory changes. Most of NTEU's
suggestions, if adopted, would result in MSPB regulations that would
not be consistent, as required by 5 CFR 9701.702, with Subpart G of
Part 9701. However, as explained below, the Board has determined that
several of NTEU's suggested revisions would add clarity to the Board's
regulations and that those suggestions should be adopted.
MSPB's Response to Comment 4: The Board's responses to NTEU's 11
suggestions are as follows:
Suggestion 1: The Board's regulations should not incorporate DHS's
initial service period:
MSPB's Response to Suggestion 1: DHS's regulations, at 5 CFR
9701.603, define ``initial service period'' as the one- or two-year
period employees must serve after selection for a designated DHS
position in the competitive service for the purpose of providing an
employee the opportunity to demonstrate competencies in a specific
occupation. 5 CFR 9701.604(d)(1) provides that the Board would have no
jurisdiction over an appeal brought by a nonpreference eligible
employee serving an initial service period. MSPB's regulation, at 5 CFR
1210.2(a), states that the Board lacks jurisdiction over those classes
of employees excluded under 5 CFR 9701.604(d). However, MSPB's
regulations clarify that, as determined by DHS, prior Federal civilian
service counts toward completion of the initial service period.
To be consistent with DHS's regulations, MSPB's regulations must
[[Page 21021]]
recognize that a nonpreference eligible employee does not acquire
appeal rights until after the initial service period has been
fulfilled.
Suggestion 2: MSPB should revise 5 CFR 1210.10 to require DHS to
include in its decision notices to employees information about the
availability of an appeal to the Board of an adverse arbitration
decision.
MSPB's Response to Suggestion 2: The Board agrees and will revise 5
CFR 1210.10 accordingly. NTEU correctly noted that other agencies are
required, under 5 CFR 1201.21(d)(3), to inform employees in the
decision notices as to whether they have the opportunity to request
Board review of an arbitration decision. NTEU further noted that Board
appeal of an arbitration decision ``is clearly available in mixed cases
pursuant to 5 CFR 9701.709.'' It is the Board's understanding that DHS
takes the position that certain provisions of 5 CFR Part 1201, Subpart
E, including 5 CFR 1201.154(d), will apply to the Board's processing of
mixed case appeals brought under 5 CFR Part 9701. Board review of
arbitration decisions is available in mixed cases pursuant to
subsection 1201.154(d).
Suggestion 3: If the Board is going to incorporate the 20-day
deadline in DHS's regulations for filing an appeal, the Board should
exercise its discretion liberally to permit consideration of the merits
of untimely filed appeals upon a showing of good cause. In addition,
DHS should have only 10 days, not 15 days, to respond to appeals.
MSPB's Response to Suggestion 3: Because DHS's regulations do not
provide for any exception from the 20-day deadline for filing an
appeal, see 5 CFR 9701.706(k)(1) (``All appeals'' ``will be filed no
later than 20 days after the effective date of the action being
appealed, or no later than 20 days after the date of service of the
Department's decision, whichever is later.''), MSPB's conforming
regulations cannot so provide either. As for the suggestion that DHS be
given 10 days, instead of 15 days to respond to appeals, the Board
declines to adopt it. Because a response entails the filing of a
narrative response as well as submission of a record, the Board
believes that the 15-day time frame is more reasonable.
Suggestion 4: MSPB's regulations should authorize administrative
judges to act on case suspension requests submitted unilaterally.
MSPB's Response to Suggestion 4: Because DHS's regulations require
that case suspension requests be made jointly, MSPB's conforming
regulations cannot provide for authorization of unilaterally submitted
case suspension requests.
Suggestion 5: The MSPB regulations governing discovery should be
modified to give DHS employees an additional 30 days following receipt
of DHS's initial disclosures to make their initial disclosures. They
also should be modified to require that the Board's acknowledgment
orders advise parties of their initial disclosure obligations.
MSPB's Response to Suggestion 5: An amendment to MSPB's regulations
which would require DHS to submit initial disclosures within 10 days of
the date of the Board's acknowledgment order and would allow appellants
to wait until 40 days after the date of the acknowledgment order to
file their initial disclosures would make it extremely difficult for
the parties to complete discovery, for a hearing to be held and for an
initial decision to be made within the 90-day deadline imposed by DHS's
regulations. As for the suggested amendment to MSPB's acknowledgment
orders, it is inconsistent with current practice for Board regulations
to set requirements for acknowledgment orders. Moreover, such an
amendment would be unnecessary because acknowledgment orders issued in
appeals subject to these regulations will contain notice of initial
disclosure requirements.
Suggestion 6: MSPB's regulations, at 5 CFR 1210.17(b), should be
amended to permit either party to invoke the service of a settlement
judge.
MSPB's Response to Suggestion 6: In order to reconcile its
regulations with DHS's regulations, at 5 CFR 9701.706(i)(1) and (2),
the Board must require that the request for the services of a
settlement judge be made by the parties jointly.
Suggestion 7: The MSPB's regulations should not require
administrative judges to resolve appeals through summary judgment when
they conclude that no material facts are in dispute, and appellants
should have 30 days, instead of 15 days, to file an opposition.
MSPB's Response to Suggestion 7: In order to reconcile its
regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's
regulations must require an administrative judge to render summary
judgment on the law without a hearing when there are no material facts
in dispute. The Board declines the suggestion to give appellants 30
days to oppose a summary judgment motion in all instances because the
90-day deadline for issuance of an initial decision may not permit
judges to give appellants this much time to file an opposition.
Moreover, 15 days is the same amount of time that a complainant with a
discrimination complaint has to oppose a summary judgment motion. See
29 CFR 1609.109(g)(2). In addition, it should be noted that the Board's
regulations, at 5 CFR1210.20(c), do not provide for a rigid deadline
but, instead, state that an opposition to a summary judgment motion
``shall be filed within 15 days of service of the motion, or at the
time specified by the adjudicating official.'' Therefore, where time
permits, an administrative judge could give an appellant a longer
period than 15 days to file an opposition. The regulations also would
permit the judge to provide for a response period shorter than 15 days.
Finally, under neither DHS's nor MSPB's regulations are appellants
precluded from seeking summary judgment.
Suggestion 8: The MSPB's regulations, at 5 CFR 1210.19(b), should
be amended to require that the administrative judge conduct an in-
person hearing whenever material facts are in dispute.
MSPB's Response to Suggestion 8: The suggestion, stated otherwise,
is that whenever the administrative judge holds a hearing on an appeal,
it must always be an in-person hearing. However, the Board, in a recent
decision, recognized that, for hearings held pursuant to 5 CFR Part
1201, there is no statutory mandate for an unlimited entitlement to an
in-person hearing. Koehler v. Dept. of the Air Force, 99 M.S.P.R. 82, ]
6 (2005). Over the years, especially under circumstances where there
were issues as to the inconvenience and expense of travel, the Board
has given appellants the option of having their hearings conducted
telephonically. Id. As technology has developed, the Board has offered
the option of videoconference hearings so that an appellant at a remote
location could avail himself of a hearing without undertaking the
expense and inconvenience of having to travel to a designated hearing
site. Id. at ] 8, citing Siman v. Dept. of the Air Force, 80 M.S.P.R.
306, ] 6 (1998).
Like the rest of the Federal Government, the Board is facing
serious challenges to work harder and faster, and to decide cases more
efficiently. Id. at ] 11. Therefore, the Board cannot ignore the
advances in videoconferencing technology, which provide a less costly
alternative to affording every appellant an in-person hearing. Under
the MSPB's interim regulatory changes, one of the factors that judges
must consider in deciding whether to hold a hearing in whole or in part
by videoconference or telephone is undue prejudice to the appellant.
The
[[Page 21022]]
Board believes that its regulations strike the right balance between
giving appellants the right to appear before an administrative judge
and conserving the resources of the parties and the Board.
Suggestion 9: To the extent that the time-of-filing rules in the
MSPB's regulations, at 5 CFR 1210.21(a), apply to all filings with the
Board, they should be set forth as a separate regulation in Subpart A
of the MSPB's regulations.
MSPB's Response to Suggestion 9: The time-of-filing rules in 5 CFR
1210.21(a) are intended to apply only to the requirement that initial
decisions be issued within 90 days after the date on which the appeal
is filed; they do not determine whether an appeal was timely filed with
the Board. The Board is amending its interim regulatory changes to make
this intent clearer.
Suggestion 10: The MSPB should refrain from adopting the standard
for mitigating penalties in the DHS regulations.
MSPB's Response to Suggestion 10: In order to reconcile its
regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), the MSPB
must adopt DHS's standard for the mitigation of penalties.
Suggestion 11: The MSPB should revoke its regulations on
``mandatory removal offenses,'' or, in the alternative, clarify its
regulations to reflect that a de novo standard of review applies to the
review of decisions of the Mandatory Removal Panel that involve issues
of discrimination.
MSPB's Response to Suggestion 11: The MSPB lacks authority to
revoke the appeals process for mandatory removal offenses established
by DHS. Nor can it issue regulations that expand its jurisdiction over
appeals of DHS actions taken for mandatory removal offenses beyond the
jurisdiction that the DHS regulations provide. However, the Board will
adopt the suggestion that 5 CFR 1210.41(a) be clarified to reflect that
a de novo standard of review applies to allegations of discrimination
contained in mixed case appeals of MRP decisions.
Comment 5: The American Federation of Government Employees (AFGE)
objects largely to provisions that must be in the MSPB regulations in
order for them to be reconciled with the DHS regulations. The first
section of the AFGE comments contains an objection to our issuance of
the regulations as interim regulations. The MSPB addressed this concern
in a letter to AFGE and will summarize this letter below. The second
section of the AFGE comments objects to the regulations because they
purportedly bypass the collective bargaining rights of DHS employees.
The third and fourth sections of the AFGE comments suggest changes to
specific provisions in 5 CFR Parts 1201 and 1210, respectively. Each
section of AFGE's comment letter is addressed below.
Part 1. The MSPB should rescind the interim rule issued on October
5, 2007, because it violates the notice and comment requirements of the
Administrative Procedure Act.
MSPB's Response: As reflected in this notice, the MSPB has taken
all comments it received into serious consideration and, as a result,
will make several modifications to its interim regulatory changes. It
is important to note that the Administrative Procedure Act, at 5 U.S.C.
553(b)(A), provides that its notice and comment requirements do not
apply to ``interpretative rules, general statements of policy, or rules
of agency organization, procedure, or practice.'' This MSPB interim
rule falls within this exception. The U.S. Court of Appeals for the
D.C. Circuit clarified this exception in JEM Broadcasting Co., Inc. v.
F.C.C, 22 F.3d 320, 326-27 (D.C. Cir. 1994): ``Our oft-cited
formulation holds that the `critical feature' of the procedural
exception `is that it covers agency actions that do not themselves
alter the rights or interests of parties, although it may alter the
manner in which the parties present themselves or their viewpoints to
the agency.' '' (citations omitted). This interim rule is intended
merely to conform MSPB practices and procedures to the changes
implemented by DHS in a final rule after notice and comment. Therefore,
MSPB has not violated any of the requirements of the APA.
Part 2: MSPB should rescind the interim rule because it bypasses
the collective bargaining rights of DHS employee unions and their
bargaining unit members.
MSPB's Response: The Board has been informed that the DHS
regulations governing the appeals process will not apply to DHS
employees who are covered by a collective bargaining agreement until
negotiations between DHS management officials and representatives of
the appropriate labor organizations have been concluded.
Part 3: AFGE's suggestions regarding the interim regulatory changes
to 5 CFR. Part 1201: AFGE suggests two modifications. The first
suggested modification is to 5 CFR 1201.3(b)(3), which pertains to the
Board's jurisdiction over appeals of certain actions taken by DHS. The
suggestion is that language be added regarding possible conflicts
between Part 1210 and Part 9701 as modified by a collective bargaining
agreement. The second suggested modification is that the policy
statement in 5 CFR 1201.11 be modified to reflect the concept of
fairness as well as expedience.
MSPB's Response: The Board declines to adopt the first suggestion.
At this time, there are no collective bargaining agreements that modify
the time limits and procedures in Part 9701. Should that change, the
Board will consider revising its regulations at that time. The Board
has adopted the second suggestion and modifies 5 CFR 1201.11
accordingly.
Part 4: AFGE's suggestions regarding the interim regulatory changes
to 5 CFR Part 1210: AFGE suggests modifications to seven provisions of
5 CFR Part 1210. As explained below, the Board is adopting the
suggestion pertaining to the discovery obligations.
Suggestion 1: Modify the savings provision in 5 CFR 1210.6 to note
that it will be subject to modified time limits and procedures set by 5
CFR Part 9701 or applicable collective bargaining agreements.
MSPB's Response to Suggestion 1: According to AFGE, this proposed
modification ``simply acknowledges the possibility that bargaining
could result in changed provisions of Part 9701 being applicable to
members of bargaining units.'' The Board declines to adopt the
suggestion. At this time, there are no collective bargaining agreements
that modify the time limits and procedures in Part 9701. Should that
change, the Board will consider revising its regulations at that time.
Suggestion 2: Modify 5 CFR 1210.14 to allow for appellants'
provision of documents and information that become known to him or her
after the close of the initial disclosure period.
MSPB's Response to Suggestion 2: The purpose of this suggestion
seems to be to allow appellants to disclose or identify documents as
they become aware of their existence. The Board finds that an effective
way to make this modification applicable to both parties is to add to 5
CFR 1210.14(a) the requirement that both parties update their initial
disclosures as relevant documents and information are discovered or
become available. The Board is modifying 5 CFR 1210.14(a) accordingly.
Suggestion 3: The discovery procedures, specifically, 5 CFR
1210.15(b)(2), should be modified to allow for discovery beyond the
limitations set out in 5 CFR 1210.15(b)(1) ``for good cause, and as
fairness may require'' instead of under a ``necessity and good cause''
standard.
MSPB's Response to Suggestion 3: In order to reconcile its
regulations with DHS's regulations, at 5 CFR
[[Page 21023]]
9701.706(k)(3)(iii), the Board must consider requests for additional
discovery under the ``necessity and good cause'' standard.
Suggestion 4: The language regarding the right to a hearing set out
in 5 CFR 1210.19(b) should be modified to make it clear that, absent
summary judgment, a hearing must be held.
MSPB's Response to Suggestion 4: Read together, subparts (a) and
(b) of 5 CFR 1210.19 make it clear that, absent summary judgment, there
is a right to a hearing but that the form of hearing to be held is
within the administrative judge's discretion.
Suggestion 5: The summary judgment provision, at 5 CFR 1210.20,
should be stricken in its entirety or, in the alternative, subsection
(d), which provides that an administrative judge may initiate summary
judgment sua sponte if he or she determines that material facts may not
be in dispute, should be stricken.
MSPB's Response to Suggestion 5: In order to reconcile its
regulations with DHS's regulations, at 5 CFR 9701.706(k)(5), MSPB's
regulations must require an administrative judge to render summary
judgment on the law without a hearing when there are no material facts
in dispute. That is the case whether summary judgment is initiated by a
party or by the judge.
Suggestion 6: The mitigation of penalty standard in 5 CFR
1210.21(b) should be stricken in its entirety.
MSPB's Response to Suggestion 6: In order to reconcile its
regulations with DHS's regulations, at 5 CFR 9701.706(k)(6), MSPB's
regulations must contain DHS's standard for mitigation of penalties.
Suggestion 7: All references to mandatory removal offenses should
be stricken from 5 CFR Part 1210.
MSPB's Response to Suggestion 7: The Board lacks authority to
revoke the appeals process for mandatory removal offenses established
by DHS. However, as explained above, the Board is adopting the
suggestion of NTEU that 5 CFR 1210.41(a) be clarified to reflect that a
de novo standard of review applies to allegations of discrimination
contained in mixed case appeals of MRP decisions.
List of Subjects in 5 CFR Parts 1201, 1210, and 1215
Administrative practice and procedure, Civil rights, Government
employees.
0
For reasons set forth in the preamble, the interim rule published
October 5, 2007 (72 FR 56883) is adopted as final with the following
changes:
PART 1201--PRACTICES AND PROCEDURES
0
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.
0
2. Section 1201.11 is amended by adding a new sentence at the end of
the section to read as follows:
Sec. 1201.11 Scope and policy.
* * * It is the Board's policy that these rules will be applied in
a manner that ensures the fair and efficient processing of each case.
PART 1210--DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES
MANAGEMENT SYSTEM
0
3. The authority citation for part 1210 continues to read as follows:
Authority: 5 U.S.C. 1204 and 7701.
0
4. Section 1210.10(a)(4) is revised to read as follows:
Sec. 1210.10 Notice of appeal rights.
(a) * * *
(4) Notice of any right the employee has to file a grievance,
including notice that the election of any applicable grievance
procedure may result in a waiver of the employee's right to file an
appeal with the Board and as to whether there is any right to request
Board review of a final decision on a grievance in accordance with
Sec. 1201.154(d); and
* * * * *
0
5. Section 1210.14 is amended by revising paragraphs (a)(1)(ii) and
(a)(2)(ii) to read as follows:
Sec. 1210.14 Initial disclosures; scope of discovery.
(a) * * *
(1) * * *
(ii) The name, work address and work telephone number, if known, of
each individual likely to have discoverable information that the
Department may use in support of its claims or defenses, identifying
the subjects of such information.
(2) * * *
(ii) The name, address and telephone number, if known, of each
individual likely to have discoverable information that the appellant
may use in support of his or her claims or defenses, identifying the
subjects of the information. Each party must make its initial
disclosure based on the information then reasonably available to the
party. Each party has an ongoing obligation to supplement and update
its initial disclosure as relevant documents and information are
discovered or become available. A party is not excused from making its
disclosures because it has not fully completed the investigation of its
case, because it challenges the sufficiency of the other party's
disclosures or because the other party has not made its disclosures.
0
6. Section 1210.21 is amended by adding a new sentence to the end of
paragraph (a) to read as follows:
Sec. 1210.21 Initial decision by the adjudicating official.
(a) General. * * * For purposes of this subsection only, a document
that is filed with a Board office by personal delivery is considered
filed on the date on which the Board office receives it.
* * * * *
0
7. Section 1210.41is amended by adding a sentence to paragraph (a)(3)
to read as follows:
Sec. 1210.41 Decision of the Board.
(a) * * *
(3) * * * The Board will apply a de novo standard of review to
allegations of discrimination contained in mandatory removal appeal
actions.
* * * * *
Dated: April 10, 2008.
William D. Spencer,
Clerk of the Board.
[FR Doc. E8-8092 Filed 4-17-08; 8:45 am]
BILLING CODE 7400-01-P