Major rewrite makes MSPB’s regs more consistent, viable and transparent

The Merit Systems Protection Board completed the first major rewrite of its regulations in more than 30 years. Susan Grundmann, the MSPB chairwoman, said the...

The Merit Systems Protection Board completed the first major rewrite of its regulations in more than 30 years with a goal of not just updating how it adjudicates cases, but to bring together all the changes that have occurred since Congress created the organization in 1978.

“During the past 33 or 34 years, we have tweaked certain rules and some have tweaked back, but during that time no one had ever looked at whole regulations in terms of consistency, workability, viability and fairness,” said Susan Grundmann, MSPB’s chairwoman, in an exclusive interview with Federal News Radio. “We also haven’t had an in-depth commentary from the stakeholders, who are the people who routinely use these rules to practice.”

Over the past two years, the board did just that. It got input and comments from internal and external stakeholders and released a proposed rule in June. On Friday, MSPB released the new 60-page regulation in the Federal Register. The rules take effect Nov. 13.

Grundmann said the changes fall into four categories:

  • Create rule where one previously hadn’t existed. “We’ve always had the authority to rule make, but don’t’ have any procedures for it. Now there are some procedures,” she said.
  • Changes to the law.
  • Codification of regulations and unchanged principles of law. “Although the law hasn’t changed, for the first time we put all the principles in one area,” Grundmann said.
  • Case processing timeline.

Grundmann said the impact of these rule changes would affect the board’s adjudication processes.

“It should be easier, streamlined and more transparent,” she said. “There have been a number of changes from the proposed rule to the final rule. Some of the comments requested more definitions, such as in the area of defining a grievance to include a complaint filed under a collective bargaining agreement. Another commenter requested further clarification such as in the area of cases accepted into our mediation program, that doesn’t count against suspension time.”

Susan Grundmann, chairwoman, Merit Services Protection Board

But she said MSPB held off on the biggest change to its regulations. In the proposed rule, the board has wanted to modify the burden and degree of proof for establishing its jurisdiction.

“Our age-old rule provides that appellants bear that burden by preponderance of evidence, which means for us more likely than not,” Grundmann said. “This original rule, which really has been in place for the past decades, is in conflict with a good deal of our case law providing that some elements of a claim can be made through non-frivolous allegations, in other words notice pleading and you don’t have to put on any evidence until you put on a hearing.”

The proposed rule from June wanted to bring the burden of proof in concert with the case law, where the burden of proof would vary depending on the type of jurisdiction the appellant was seeking.

“After reviewing all of these comments, a good number of which we really agreed with, we have withdrawn that rule,” she said. “Instead, we are committing to revisiting this area in detail in the spring.”

Delay was necessary

Grundmann said the delay was necessary because the comments went beyond the scope of the rule they proposed.

“If we had adopted any of those comments, as good as they may have been, we would have going beyond what we would have originally proposed, which doesn’t really allow for that level of dialogue, debate and transparency we were looking for in this process,” she said.

Now MSPB hopes to use the comments it already received to propose a new rule fairly quickly this spring and get the final rule out later in the year.

One of the major changes that did become final was attorneys and appellants have an extra 30 days, for a total of 60 days, to make their case before the board.

“This is in response to what we heard from the people who use our process. They said, ‘We feel a little bit rushed. We’d like a little more time to develop our cases or work with the other side,'” she said. “That caused us to expand the suspension rule. That means the case doesn’t do anything for awhile, while the parties go off and talk settlement or resolve their discovery issues.”

Grundmann said because the changes are significant and will impact nearly everything the board does MSPB will help make the transition easier.

A crosswalk between new and old

She said the board developed a crosswalk between the old approach, the new methodology and what exactly changed.

At both field offices and headquarters, the administrative judges and/or the clerks office will provide filers with information on the changes and how it affects their cases.

Judges also will have discretion about whether to apply the new rule or old rule for cases in process, but still fairly far from a decision or hearing.

MSPB is far from finished updating their regulations. Along with the jurisdictional issues, Grundmann said a number of the comments they received went beyond the scope of the rule.

“We’ve invited folks to resubmit those ideas or suggestions through our new rule for proposed rulemaking,” she said. “They cover a vast variety of areas from amicus briefs to interveners. There’s certainly more ground to look at, but if we had adopted any of those comments during the proposal period we would have gone beyond the scope of what we originally proposed.”

Additionally, she said MSPB will monitor how the new rules are impacting the adjudication process, and whether they need to be tweaked as they are implemented.

“Having gone through the big deal that we’ve gone through, I think we’ve got a great foundation to move forward,” Grundmann said.


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