Judges’ Handbook

1 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board JJuuddggeess HHaannddbbooookk JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board LLaasstt UUppddaatteedd OOccttoobbeerr 22001199 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board i TABLE OF CONTENTS CHAPTER 1 - PURPOSE AND DEFINITIONS .. 1 1. PURPOSE.. 1 2. 120-DAY STANDARD.. 1 3. LIST OF ACRONYMS.. 1 CHAPTER 2 - REVIEWING THE appeal .. 3 1. RECEIPT OF THE appeal .. 3 2. REVIEW OF THE appeal .. 3 3. REJECTION OF THE appeal .. 8 4. SUBSTITUTION OF 8 5. PSEUDONYMOUS APPEALS (JOHN DOE APPEALS -- WHEN THE APPELLANT SEEKS ANONYMITY).. 9 6. REPRESENTATION.. 11 7. PRO SE APPELLANTS.. 11 8. INCOMPETENCE.. 12 9. CONGRESSIONAL INQUIRIES AND REFERRALS.. 12 CHAPTER 3 - INITIAL PROCESSING .. 14 1. ASSIGNMENT TO ADMINISTRATIVE JUDGE.. 14 2. DISQUALIFICATION OF ADMINISTRATIVE JUDGE.. 14 3. CONSOLIDATION AND JOINDER.. 14 4. CLASS ACTIONS.

2 16 5. INTERVENTION.. 18 6. SENSITIVE APPEALS.. 19 7. ACKNOWLEDGMENT AND SHOW CAUSE ORDERS.. 19 8. SPECIAL PROCEDURES FOR RETIREMENT APPEALS FROM THE PHILIPPINES.. 21 9. OBLIGATION TO FURNISH OPM WITH INFORMATION.. 21 10. ORGANIZATION OF THE appeal FILE.. 21 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board ii 11. FAX SUBMISSIONS.. 22 12. SUSPENDING CASES FOR DISCOVERY OR SETTLEMENT.. 22 CHAPTER 4 - HEARINGS, SCHEDULING AND 23 1. HEARING REQUESTS.. 23 2. CONDITIONAL OR AMBIGUOUS REQUESTS.. 23 3. USE OF HEARING NOTICE.. 24 4. ADVANCE NOTICE.. 24 5. DISTRIBUTION OF NOTICE; COURT REPORTER CONTRACT.. 24 6. HEARING LOCATION.. 25 7. TELEPHONE HEARINGS.. 25 8. VIDEO HEARINGS.. 25 9. MOTIONS FOR POSTPONEMENT OF THE HEARING.. 25 10. DISMISSAL WITHOUT PREJUDICE.. 26 11. PUBLIC HEARINGS.. 28 12. CONDUCT OF PARTIES - SANCTIONS.. 28 13. FAILURE OF A PARTY OR REPRESENTATIVE TO APPEAR.. 29 CHAPTER 5 - MOTIONS .. 31 1. FORM OF MOTIONS.

3 31 2. RULING ON MOTIONS.. 31 3. MEMORIALIZATION OF RULINGS.. 31 CHAPTER 6 - INTERLOCUTORY APPEALS .. 32 1. INTRODUCTION.. 32 2. CRITERIA FOR CERTIFYING INTERLOCUTORY APPEALS.. 32 3. 32 4. STAYS PENDING INTERLOCUTORY APPEALS.. 33 CHAPTER 7 - WITNESSES, SUBPOENAS AND SWORN STATEMENTS .. 34 1. REQUESTS FOR WITNESSES.. 34 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board iii 2. OBTAINING WITNESSES FOR HEARINGS AND DEPOSITIONS.. 34 3. SUBPOENAS--REGULATORY CITATION; EXCEPTIONS.. 34 4. TIMELY OBJECTIONS TO A SUBPOENA.. 35 5. MOTIONS TO QUASH OR LIMIT.. 35 6. MOTIONS FOR ENFORCEMENT.. 35 7. PROTECTIVE ORDERS.. 36 8. REQUIREMENTS FOR SWORN STATEMENTS.. 36 CHAPTER 8 - DISCOVERY .. 37 1. GENERAL.. 37 2. FEDERAL RULES OF CIVIL PROCEDURE.. 37 3. FORMS OF DISCOVERY.. 38 4. VOLUNTARY DISCOVERY.. 39 5. DISCOVERY REQUESTS.. 39 6. PREMATURE FILINGS.. 39 7. TIME LIMITS FOR DISCOVERY.. 39 8. MOTIONS TO COMPEL.. 40 9. ADMINISTRATIVE JUDGE S DISCOVERY AUTHORITY.

4 41 10. SUSPENDING CASES FOR DISCOVERY.. 41 CHAPTER 9 - PREHEARING AND STATUS CONFERENCES .. 42 1. PURPOSES OF CONFERENCES.. 42 2. ISSUANCE OF STANDARD ORDERS BURGESS NOTICE.. 42 3. NUMBER OF CONFERENCES REQUIRED.. 43 4. METHOD OF CONFERENCES.. 43 5. RECORD OF CONFERENCES.. 43 6. TREATMENT OF AFFIRMATIVE DEFENSES DURING PREHEARING AND STATUS CONFERENCES.. 44 7. RETIREMENT CASES.. 47 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board iv 8. MOTIONS FOR ATTORNEY FEES, COMPENSATORY, LIQUIDATED AND/OR CONSEQUENTIAL DAMAGES, AND PETITIONS FOR ENFORCEMENT.. 48 CHAPTER 10 - THE HEARING AND ITS RECORD .. 49 1. ROLE AND CONDUCT OF ADMINISTRATIVE JUDGE.. 49 2. PRELIMINARY CONFERENCE.. 51 3. PUBLIC HEARINGS.. 51 4. USE OF TWO-WAY COMMUNICATIONS DEVICES; BROADCAST OF HEARINGS.. 52 5. SIZE OF AND ACCESS TO THE HEARING ROOM.. 53 6. TELEPHONIC OR VIDEO CONFERENCE HEARINGS.. 53 7. HEARING PARTICIPANTS.. 55 8. SECURITY.. 56 9. ORDER OF BUSINESS.

5 56 10. DISPOSITION OF MOTIONS AND OBJECTIONS.. 57 11. SANCTIONS.. 57 12. WITNESSES.. 59 13. OFF-THE-RECORD DISCUSSIONS.. 60 14. PRESENTATION OF EVIDENCE.. 60 15. WRITTEN SUBMISSIONS IN ADDITION TO HEARING.. 62 16. CLOSING THE RECORD.. 63 17. BENCH DECISIONS.. 63 18. VERBATIM RECORD OF THE HEARING.. 63 19. TRANSCRIPTS.. 65 20. CERTIFICATION OF THE HEARING RECORD.. 67 CHAPTER 11 - SETTLEMENT .. 69 1. POLICY.. 69 2. TIMING.. 69 3. DISMISSALS ON THE BASIS OF SETTLEMENT.. 69 4. ACCEPTANCE INTO THE RECORD.. 69 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board v 5. AUTHORITY.. 70 6. ENFORCEMENT.. 70 7. ORAL AGREEMENTS.. 70 8. SUSPENDING CASES FOR THE MEDIATION APPEALS PROGRAM.. 70 9. SETTLEMENT OPTIONS.. 70 CHAPTER 12 - INITIAL DECISIONS .. 72 1. GENERAL.. 72 2. ORGANIZATION OF THE DECISION.. 72 3. QUALITY REVIEW OF DECISIONS.. 75 4. DISTRIBUTION OF DECISIONS.. 76 5. BENCH DECISIONS.. 76 6. RULES OF CITATION.

6 78 7. STYLE.. 79 8. SANITIZATION OF INITIAL DECISIONS.. 79 9. CLOSING AND CODING CASES.. 80 CHAPTER 13 - ADDENDUM DECISIONS .. 81 1. GENERAL.. 81 2. ATTORNEY FEES.. 81 3. PROCESSING MOTIONS FOR ATTORNEY FEES.. 83 4. COMPLIANCE.. 84 5. PROCESSING PETITIONS FOR ENFORCEMENT.. 85 6. CONSEQUENTIAL, LIQUIDATED, AND COMPENSATORY DAMAGES.. 86 7. PROCESSING REQUESTS FOR DAMAGES.. 86 CHAPTER 14 - EX PARTE COMMUNICATIONS .. 89 1. GENERAL.. 89 2. SPECIFIC PROHIBITIONS/APPROVALS.. 89 3. PLACEMENT IN THE RECORD/SANCTIONS.. 90 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board vi 4. AVOIDANCE OF PROHIBITED EX PARTE COMMUNICATIONS.. 91 5. DUE PROCESS GUARANTEE AT THE AGENCY LEVEL.. 91 CHAPTER 15 - WHISTLEBLOWER APPEALS .. 92 1. GENERAL.. 92 2. OTHERWISE APPEALABLE ACTION APPEALS.. 92 3. IRA APPEALS.. 92 4. ELECTION OF REMEDIES.. 92 5. TIME LIMITS FOR APPEALING TO THE board .. 93 6. ESTABLISHING JURISDICTION AND BURDENS AT HEARING.

7 94 7. ANALYSIS.. 95 8. REFERRAL TO OSC.. 99 9. ATTORNEY FEES.. 100 10. CONSEQUENTIAL AND COMPENSATORY DAMAGES.. 100 11. WHISTLEBLOWER PROTECTION ENHANCEMENT ACT (WPEA).. 101 CHAPTER 16 - STAY REQUESTS .. 104 1. GENERAL.. 104 2. TIME OF FILING.. 104 3. PROCEDURES FOR RULING ON STAY REQUESTS.. 104 4. MERITS ISSUES CONCERNING STAYS.. 105 5. appeal RIGHTS FROM A RULING ON A STAY REQUEST.. 105 CHAPTER 17 - SPECIAL RECORDS PROCEDURES .. 106 1. SEALED CASES.. 106 2. NATIONAL SECURITY (CLASSIFIED) INFORMATION.. 109 3. SANITIZATION OF INITIAL DECISIONS.. 109 4. THIRD-PARTY REQUESTS UNDER FOIA; APPELLANT REQUESTS; PRIVACY ACT. 110 5. SENSITIVE SECURITY INFORMATION.. 111 6. OTHER UNCLASSIFIED BUT SENSITIVE INFORMATION.. 112 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board vii CHAPTER 18 - USERRA AND VEOA APPEALS .. 113 1. THE STATUTES.. 113 2. JURISDICTION.. 113 3. AFFIRMATIVE DEFENSES.. 116 4. TIME LIMITATIONS, TIMELINESS, AND EXHAUSTION.

8 117 5. REPRESENTATION.. 118 6. HEARING.. 118 7. BURDENS OF PROOF.. 119 8. ELECTIONS TO 119 9. ADDITIONAL 120 APPENDIX A - MODEL INSTRUCTIONS FOR BROADCAST COVERAGE .. 122 APPENDIX B - MODEL INSTRUCTIONS FOR WITNESSES .. 125 APPENDIX C - ALPHABETICAL INDEX TO AJ Handbook .. 126 JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board Chapter 1 1 CHAPTER 1 - PURPOSE AND DEFINITIONS 1. PURPOSE. The board is authorized generally by 5 1204(a)(1) to hear and adjudicate appeals. The board s regulations set forth at 5 part 1201 provide the basic framework for the processing of appeals. With the enactment of the Whistleblower Protection Act (WPA), as amended, t he board promulgated additional regulations in 5 part 1209 that govern whistleblower appeals. The regulations have also been supplemented with procedures applicable to appeals under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans Employment Opportunities Act (VEOA), which are located at 5 part 1208.

9 Although 5 part 1210 was added to address the processing of appeals of removals and transfers of members of the Senior Executive Service at the Department of Veterans Affairs, this part has been superseded by 38 713, which provides no board appeal rights for such actions. Different appeal rights for non-SES employees of the DVA were enacted as 38 714, but MSPB regulations addressing such appeals have not yet been completed. This Handbook is designed to provide supplemental guidance to the board s regulations. The procedures in this Handbook are not mandatory, and adjudicatory error is not established solely by failure to comply with a provision of this Handbook . 2. 120-DAY STANDARD. The board s policy is to adjudicate all appeals within 120 days of receipt by the Regional Office (RO) except for good cause shown. The 120-day standard alone, however, is not sufficient reason (at least in a non-mixed case) to deny a continuance in the face of good cause.

10 Due process and fairness considerations are paramount in determining good cause. Caseloads and the circumstances of the RO or Administrative Judge (AJ) are also factors for consideration. For example, the 33,000+ furlough appeals that were filed in the spring and summer of 2013, and the backlog of older cases left in their wake, meant that for several years following 2013 the 120-day goal could not be met in many cases that would otherwise have been timely decided. Reassignments among AJs or ROs may be used to reconcile due process factors and the board s 120-day goal to the maximum extent possible. 3. LIST OF ACRONYMS. Administrative Judge AJ Administrative Law Judge ALJ Case Management System CMS Chief Administrative Judge CAJ; as used in this Handbook , the term CAJ refers to a Regional Director overseeing a Regional Office or the CAJ designee of a Field Office. Chief Administrative Law Judge CALJ Electronic Case File--ECF JUDGES Handbook _____ MERIT SYSTEMS PROTECTION board Chapter 1 2 Equal Employment Opportunity EEO Field Office FO Initial Decision ID Individual Right of Action IRA Mixed Case Otherwise appealable matter with an allegation of prohibited discrimination.