Notice & Comment

The MSPB Issues an Interim Final Rule Regarding their Discovery Procedures, by Carl Hobbs

On Friday, October 30, 2015, in the Federal Register, the Merit Systems and Protection Board (MSPB) today issued an interim final rule, to amend its rules of practice and procedure. The interim final rule clarifies that parties have a right to discovery under the MSPB’s existing discovery procedures in compliance proceedings.

The MSPB explained that the clarification is necessary because in Bernard v. Department of Agriculture, the U.S. Court of Appeals for the Federal Circuit held that the administrative judge abused his discretion in denying employee’s enforcement petition without responding to the employee’s discovery requests. The court concluded that the Board improperly denied the appellant discovery of “potentially relevant evidence” when it denied enforcement of an agreement between the agency and appellant.

Further, the court stated that MSPB’s regulations provide no clear guarantee that parties are authorized to undertake discovery in enforcement proceedings, and neither do Board precedents interpreting these regulations.

This interim final rule amends the MSPB’s regulations to address that the parties have a right to discovery in such cases under the Board’s existing discovery procedures. It also sets a deadline by which initial discovery requests must be filed. The MSPB stated that, as in other Board cases, this deadline may be changed by the judge. This regulation can be found in its entirety at 5 C.F.R. § 1201.183.

Finally, the MSPB provided its justification for use of an immediately effective interim final rule instead of notice and comment rulemaking, based on the Federal Circuit’s decision and the need to avert any further confusion regarding the Board’s practice and procedures governing the right to discovery in compliance cases.

*Carl Hobbs is a fourth-year evening law student at the Catholic University of America Columbus School of Law. Carl is also the Employee Relations Specialist and Director of Policy & Administration for a small government agency. He hopes to practice Employment & Labor Law after graduation.

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