Rule2023-21272
Organization and Procedures
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Published
September 29, 2023
Effective
October 2, 2023
Issuing agencies
Merit Systems Protection Board
Abstract
The Merit Systems Protection Board (MSPB or the Board) is launching an updated electronic filing (e-filing) system, e-Appeal, on October 2, 2023, in support of MSPB's agency-wide initiative to modernize its technology, gain new efficiencies, and improve the e- filing experience for our external users. MSPB hereby amends its rules of practice and procedure to require all pleadings filed by agencies and attorneys who represent appellants in MSPB proceedings to be electronically filed (e-filed). This requirement will apply to all pleadings in all adjudicatory proceedings before the Board except those specifically excluded by this interim final rule.
Full Text
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<title>Federal Register, Volume 88 Issue 188 (Friday, September 29, 2023)</title>
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[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67055-67058]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21272]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 /
Rules and Regulations
[[Page 67055]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Organization and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is
launching an updated electronic filing (e-filing) system, e-Appeal, on
October 2, 2023, in support of MSPB's agency-wide initiative to
modernize its technology, gain new efficiencies, and improve the e-
filing experience for our external users. MSPB hereby amends its rules
of practice and procedure to require all pleadings filed by agencies
and attorneys who represent appellants in MSPB proceedings to be
electronically filed (e-filed). This requirement will apply to all
pleadings in all adjudicatory proceedings before the Board except those
specifically excluded by this interim final rule.
DATES: This interim final rule is effective October 2, 2023. Submit
written comments concerning this interim final rule on or before
December 31, 2023.
ADDRESSES: Submit comments by using only one of the following methods:
Email: <a href="/cdn-cgi/l/email-protection#4e233d3e2c0e722f6e263c2b2873" http: mspb.gov">mspb.gov</a>">mspb@<a href="http://mspb.gov">mspb.gov</a></a>. Include ``Amendments to E-filing
Regulations'' in the subject line of the email.
Fax: (202) 653-7130.
Mail or other commercial delivery: Jennifer Everling, Acting Clerk
of the Board, Merit Systems Protection Board, 1615 M Street NW,
Washington, DC 20419.
Instructions: All comments must reference ``Amendments to E-filing
Regulations.'' Regardless of the method used for submitting comments or
material, all submissions will be posted, without change, to MSPB's
website (<a href="http://www.mspb.gov">www.mspb.gov</a>) and will include any personal information you
provide. Therefore, submitting this information makes it public.
FOR FURTHER INFORMATION CONTACT: Jennifer Everling, Acting Clerk of the
Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC
20419; phone: (202) 653-7200; fax: (202) 653-7130; email:
<a href="/cdn-cgi/l/email-protection#94f9e7e4f6d4a8f5b4fce6f1f2a9" http: mspb.gov">mspb.gov</a>">mspb@<a href="http://mspb.gov">mspb.gov</a></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On February 26, 2008, MSPB issued final regulations at 5 CFR parts
1201, 1203, 1208, and 1209 governing e-filing. 73 FR 10127. Under those
regulations, virtually any type of pleading could be filed
electronically via MSPB's e-filing application. In the February 26,
2008 Federal Register notice, MSPB announced that it was giving serious
consideration to mandating e-filing for agencies and attorneys who
represent appellants in MSPB proceedings. 73 FR 10127-28.
On October 13, 2011, MSPB issued an interim final rule, with
request for comments, launching a pilot program under which the
Washington Regional Office (WRO) and Denver Field Office (DEFO)
required all pleadings filed by agencies and attorneys who represent
appellants in MSPB proceedings to be e-filed. In the October 13, 2011
Federal Register notice, MSPB noted that should the pilot program in
WRO and DEFO prove to be successful, the Board would consider proposing
a final comprehensive rule that would make e-filing mandatory for
agencies and attorneys who represent appellants. Since the launch of
the pilot program, the proportion of pleadings e-filed has steadily
increased. In fiscal year 2022, 85% of initial appeals and 95% of
pleadings were filed electronically using MSPB's e-filing application.
On October 2, 2023, MSPB will launch an updated e-filing system, e-
Appeal. The extensive capabilities of MSPB's current e-filing
application that allow appellants, their representatives, and agencies
to e-file an appeal and pleadings and view case records will still be
available in the new, modernized e-Appeal system. Additionally, in the
new e-Appeal, parties and their representatives will have access to a
dashboard that allows management of all their Board cases and case
materials in one place, providing new efficiencies for our customers.
Although MSPB's current e-filing application has been valuable to both
MSPB and its customers, some benefits can only be fully realized by
maximizing the number of pleadings that are e-filed. By requiring e-
filing for agencies and attorneys who represent appellants, MSPB can
improve efficiency in adjudication and reduce costs associated with the
need to scan pleadings that are submitted in paper form.
Finally, while these amendments are being issued immediately as
interim final rules, the Board still requests that all stakeholders or
other interested individuals provide their views on the amendments. The
Board will thoroughly consider all input and respond to all comments as
necessary.
II. Summary of Changes
Set forth below is a summary of amendments being implemented by
MSPB.
Part 1201--Practices and Procedures
Subpart B--Procedures for Appellate Cases
Section 1201.14 Electronic Filing Procedures
This amendment modifies the procedures related to e-filing with the
Board to require agency representatives and appellant attorney
representatives to register as e-filers with MSPB and to file all
pleadings using MSPB's e-Appeal. The amendment further modifies the
scope of registration as an e-filer to now include all cases a party
has with MSPB, and the requirements for what may be included with
electronic pleadings in Board appeals. The amendment adds the
requirement for agencies to designate an individual agency
representative to whom the Board will serve a copy of an appeal when it
is docketed.
Section 1201.24 Content of an Appeal; Right to Hearing
This amendment modifies the requirements for the information
contained in an appeal to include the email address of the appellant
and the appellant's representative, if any. Because free email
addresses are widely available, requiring an email address should not
be an undue burden on appellants or appellant non-attorney
representatives who do not register as e-filers. The amendment further
removes
[[Page 67056]]
references to the direct link to MSPB's e-Appeal, which can be accessed
directly from MSPB's website.
Section 1201.26 Service of Pleadings and Response
This amendment removes the requirement for the appellant to file
two copies of the appeal with the Board and modifies the formatting
requirements for pleadings filed via postal mail, facsimile, or
commercial or personal delivery in Board appeals. This amendment
further adds the requirements for how audio and video evidence may be
submitted to the Board.
Appendix II to Part 1201--Appropriate Regional or Field Office for
Filing Appeals
This amendment reflects the change to the contact information of
the Board's New York Field Office. Appendix II of this part is amended
to show the new address and facsimile number. The geographical areas
served by the New York Field Office are unchanged. This amendment also
removes obsolete language regarding text-based telecommunications
capabilities of the facsimile numbers for the Board's Regional and
Field Offices.
III. Effective Date of Amendments
The amendments described above will go into effect on October 2,
2023.
IV. Procedural Requirements
A. Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b), MSPB has determined that good cause
exists for waiving the general notice of proposed rulemaking and public
comment procedures as to these technical amendments. The notice and
comment requirements of section 553(b) do not apply to interpretive
rules, general statements of policy, or rules of agency organization,
procedure, or practice. The Board finds that use of an interim final
rule instead of notice and comment rulemaking is appropriate here
because the amendments contained herein apply solely to the Board's
rules of agency organization, procedure, or practice. All of the
amendments solely address how appeals proceed at the Board, and do not
affect any substantive rights of parties before the Board or interested
stakeholders. No substantive changes in existing law or policy are
effected from these amendments. Under these circumstances, notice and
comment rulemaking is unnecessary and not required by any public
interest.
B. Regulatory Impact Analysis: Executive Order 12866
MSPB has determined that this is not a significant regulatory
action under E.O. 12866. Therefore, no regulatory impact analysis is
required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires an agency to prepare
a regulatory flexibility analysis for rules unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. The RFA applies only to rules for
which an agency is required to first publish a proposed rule. See 5
U.S.C. 603(a) and 604(a). As discussed above, notice and comment
rulemaking is unnecessary for these changes due to the lack of
substantive changes being made to existing law or policy. Thus, the RFA
does not apply to this final rule.
D. Paperwork Reduction Act
This document does not contain information collection requirements
subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44
U.S.C. Chapter 35).
E. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure.
Accordingly, for the reasons set forth above, 5 CFR part 1201 is
amended as follows:
PART 1201--PRACTICES AND PROCEDURES [AMENDED]
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 1201.14 is revised to read as follows:
Sec. 1201.14 Electronic filing procedures
(a) General. This section prescribes the rules and procedures by
which parties and representatives to proceedings within the MSPB's
appellate and original jurisdiction may file and receive documents
electronically.
(b) System for electronic filing. (1) The MSPB's e-Appeal system is
the exclusive system for electronic filing (e-filing) with the MSPB.
Except as specifically provided, the MSPB will not accept pleadings
filed by email. The link to e-Appeal is available at the MSPB's website
(<a href="https://www.mspb.gov">https://www.mspb.gov</a>).
(2) e-Appeal is a closed system that collects and maintains records
as part of an MSPB system of records and is subject to the provisions
of the Privacy Act of 1974. Access to cases in e-Appeal is limited to
the parties participating in a Board proceeding who have registered as
e-filers with the MSPB, and authorized individuals providing legal
support to designated representatives.
(c) Matters subject to electronic filing. Subject to the
registration requirement of paragraph (e) of this section, parties and
representatives may use e-filing to do any of the following:
(1) File any pleading, including a new appeal, in any matter within
the MSPB's appellate jurisdiction (Sec. 1201.3);
(2) File any pleading, including a new complaint, in any matter
within the MSPB's original jurisdiction (Sec. 1201.2);
(3) File a petition for enforcement of a final MSPB decision (Sec.
1201.182);
(4) File a request for attorney fees (Sec. 1201.203);
(5) File a request for compensatory, consequential, or liquidated
damages (Sec. 1201.204);
(6) Designate a representative, revoke such a designation, or
change such a designation (Sec. 1201.31);
(7) Notify the MSPB of a change in contact information such as
address (geographic or email) or telephone number; or
(8) Receive a requested subpoena from the Board for issuance to a
witness (Sec. 1201.83).
(d) Matters excluded from e-filing. E-filing may not be used to:
(1) File a request to hear a case as a class appeal or any
opposition thereto (Sec. 1201.27);
(2) Serve a subpoena on a witness (Sec. 1201.83);
(3) File a pleading with the Special Panel (Sec. 1201.137);
(4) File a pleading that contains Sensitive Security Information
(SSI) (49 CFR parts 15 and 1520);
(5) File a pleading that contains classified information (32 CFR
part 2001); or
(6) File a request to intervene or participate as an amicus curiae
or file a brief as amicus curiae pursuant to Sec. 1201.34.
(e) Registration as an e-filer.
(1) The exclusive means to register as an e-filer is to follow the
instructions at e-Appeal using a unique email address.
(2) Registration as an e-filer constitutes consent to accept
electronic service of pleadings filed by other e-
[[Page 67057]]
filers and documents issued by the MSPB. No one may electronically file
a new appeal or a pleading with the MSPB, or view the case record in an
assigned appeal, unless registered as an e-filer.
(3) Registration as an e-filer applies to all MSPB proceedings with
which the e-filer is associated in their e-Appeal role (appellant,
appellant representative, or agency representative). If an individual
requires more than one e-Appeal role (e.g., appellant and appellant
representative), they must register for each role separately using a
different email address.
(4) All notices, orders, decisions, and other documents issued by
the MSPB, as well as all pleadings filed by parties, will be made
available for viewing and downloading at e-Appeal. Access to documents
at e-Appeal is limited to the parties and representatives who are
registered e-filers in the appeals in which they were filed.
(5) Agency representatives and appellant attorney representatives
must register as e-filers.
(6) Each e-filer must promptly update their e-Appeal profile and
notify the MSPB and other participants of any change in their address,
telephone number, or email address by filing a pleading in each pending
proceeding with which they are associated.
(7) An appellant or an appellant non-attorney representative may
withdraw their registration as an e-filer pursuant to requirements set
forth in e-Appeal policies posted to the MSPB's website. Such
withdrawal means that, effective upon the MSPB's processing of a proper
withdrawal, pleadings and MSPB documents will no longer be served on
that person electronically and that person will no longer have
electronic access to their case records through e-Appeal. A withdrawal
of registration as an e-filer may preclude future re-registering as an
e-filer.
(f) Pleadings by e-filers. Agency representatives and appellant
attorney representatives must file all pleadings using e-Appeal, except
those pleadings excluded from e-filing by paragraph (d) of this
section. A pleading, or any part thereof, filed by non-electronic
means, i.e., via postal mail, facsimile, or personal or commercial
delivery, may be rejected.
(g) Agency Initial Contacts. (1) Agencies are required to designate
a specific individual as an initial agency representative to whom the
Board will serve a copy of an appeal when it is docketed. Agency
initial contacts are responsible for monitoring case activity regularly
at e-Appeal.
(2) Agency initial contacts must be designated pursuant to
requirements set forth in e-Appeal policies posted to the MSPB's
website.
(h) Form of electronic pleadings--(1) Electronic formats allowed.
E-Appeal accepts numerous electronic formats, including word-processing
and spreadsheet formats, Portable Document Format (PDF), and image
files (files created by scanning). A list of formats allowed is set
forth in e-Appeal policies posted to the MSPB's website. Pleadings
filed via e-Appeal must be formatted so that they will print on 8\1/2\-
inch by 11-inch paper in portrait orientation. Parties are responsible
for reviewing all pleadings to confirm legibility and to minimize the
inclusion of nonrelevant personally identifiable information.
(2) Requirements for pleadings with electronic attachments. An e-
filer who uploads supporting documents, in addition to the document
that constitutes the primary pleading, must identify each attachment,
either by bookmarking the document using e-Appeal, or by uploading the
supporting documents in the form of one or more PDF files in which each
attachment is bookmarked. Bookmark names must comply with requirements
set forth in e-Appeal policies posted to the MSPB's website and include
information such as a brief descriptive label with dates (e.g., ``Oct.
1, 2021--Decision Notice'').
(3) Submission of audio and video evidence. Audio and video
evidence must be submitted according to the formatting and submission
requirements set forth in e-Appeal policies posted to the MSPB's
website.
(i) Service of electronic pleadings and MSPB documents. (1) When
MSPB documents are issued or when parties e-file any pleadings, e-
Appeal will send an email notification to other parties who are e-
filers. When using e-Appeal to file a pleading, e-filers will be
notified of all documents that must be served by non-electronic means,
and they must certify that they will serve all such documents no later
than the first business day after the electronic submission.
(2) Delivery of email can encounter failure points. E-filers are
responsible for ensuring that email from <a href="http://mspb.gov">mspb.gov</a> is not blocked by
filters.
(3) E-filers are responsible for monitoring case activity regularly
at e-Appeal to ensure that they have received all case-related
documents.
(j) Documents requiring a signature. Electronic documents filed by
an e-filer pursuant to this section shall be deemed to be signed by the
e-filer for purposes of any regulation in part 1201, 1203, 1208, or
1209 of this chapter that requires a signature.
(k) Affidavits and declarations made under penalty of perjury. E-
filers may submit electronic pleadings in the form of declarations made
under penalty of perjury under 28 U.S.C. 1746, as described in appendix
IV to this part. If the declarant is someone other than the e-filer, a
signed affidavit or declaration should be uploaded as an image file or
with an acceptable digital signature that complies with requirements
set forth in e-Appeal policies posted to the MSPB's website.
(l) Date electronic documents are filed and served. (1) As provided
in Sec. 1201.4(l) of this part, the date of filing for pleadings filed
via e-Appeal is the date of electronic submission. All pleadings filed
via e-Appeal are time stamped with Eastern Time, but the timeliness of
a pleading will be determined based on the time zone from which the
pleading was submitted. For example, a pleading filed at 11 p.m.
Pacific Time on August 20 will be stamped by e-Appeal as being filed at
2 a.m. Eastern Time on August 21. However, if the pleading was required
to be filed with the Washington Regional Office (in the Eastern Time
Zone) on August 20, it would be considered timely, as it was submitted
prior to midnight Pacific Time on August 20.
(2) MSPB documents served electronically on e-filers are deemed
received on the date of electronic transmission.
(m) Authority of MSPB to regulate e-filing. (1) A judge or the
Clerk of the Board may issue orders regulating the method of
submissions for a particular period or particular submissions.
(2) A judge or the Clerk of the Board may require that any document
filed electronically be submitted in non-electronic form and bear the
written signature of the submitter.
(3) The MSPB may order any party or authorized individual to cease
participation as an e-filer or access to e-Appeal in circumstances that
constitute a misuse of the system or a failure to comply with law,
rule, regulation, or policy governing use of a U.S. government
information system.
(4) MSPB reserves the right to revert to traditional methods of
service. The MSPB may serve documents via traditional means--postal
mail, facsimile, commercial or personal delivery--at its discretion.
Parties and their representatives are responsible for ensuring that the
MSPB always has their current postal mailing addresses, even when they
are e-filers.
[[Page 67058]]
Sec. 1201.24 [Amended]
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3. Amend Sec. 1201.24 as follows:
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a. By removing from the third sentence in paragraph (a) introductory
text the words ``in electronic form'' and adding in their place
``electronically'';
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b. By removing from paragraph (a)(1) the words ``and telephone number''
and adding in their place ``telephone number, and email address'';
0
c. By removing from paragraph (a)(6) the words ``and telephone number''
and adding in their place ``telephone number, and email address'';
0
d. By removing from paragraph (a)(9) the words ``the Board's e-Appeal
site (<a href="https://e-appeal.mspb.gov">https://e-appeal.mspb.gov</a>)'' and adding in their place ``e-
Appeal''; and
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e. By removing from paragraph (c) the words ``the e-Appeal site
(<a href="https://e-appeal.mspb.gov">https://e-appeal.mspb.gov</a>)'' and adding in their place ``e-Appeal''
and by removing the words ``Board's Web site'' and adding in their
place ``MSPB's website''.
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4. Revise Sec. 1201.26 to read as follows:
Sec. 1201.26 Service of Pleadings and Response
(a) Service--(1) Service by the Board. The appropriate office of
the Board will notify each party to the proceeding that a new appeal
has been docketed and will attach to the initial order in the
proceeding a certificate of service, consisting of a list of the
parties to the proceeding or their designated representatives.
(2) Service by the parties. The parties must serve on each other
one copy of each pleading, as defined by Sec. 1201.4(b), and all
documents submitted with it, except for the appeal. They may do so by
electronic filing in accordance with Sec. 1201.14, postal mail,
facsimile, or commercial or personal delivery. Documents and pleadings
must be served on each party and each representative. A certificate of
service stating how and when service was made must accompany each
pleading. The parties and their representatives must notify the
appropriate Board office and one another, in a pleading, of any changes
in their address, telephone number, or email address.
(b) Submission of documents. Pleadings and attachments filed via
postal mail, facsimile, or commercial or personal delivery must be
filed on 8\1/2\-inch by 11-inch paper. This requirement enables the
Board to comply with standards established for U.S. courts. Paper
pleadings and attachments may not contain binders, folders, staples,
paper clips, or notes adhered to pages. Such items will be removed and
not included in the record, or the filing may be rejected. Documents
may not be submitted on an electronic media storage device such as a
Compact Disc (CD), Digital Video Disc (DVD), or flash drive. Parties
are responsible for reviewing all pleadings to confirm legibility and
to minimize the inclusion of nonrelevant personally identifiable
information. Pleadings filed via e-Appeal must adhere to the formatting
and filing requirements set forth in Sec. 1201.14(h).
(c) Submission of audio and video evidence. Audio and video
evidence must be submitted according to the formatting and submission
requirements set forth in policies posted to the MSPB's website.
Appendix II to Part 1201--[Amended]
0
5. Amend appendix II to part 1201 by:
0
a. Removing the second sentence of the introductory text; and
0
b. Removing from paragraph 3a the words ``26 Federal Plaza, Room 3137-
A, New York, New York 10278-0022, Facsimile No.: (212) 264-1417'' and
adding in their place ``1601 Market Street, Suite 1700, Philadelphia,
PA 19103, Facsimile No.: (215) 597-3456''.
Jennifer Everling,
Acting Clerk of the Board.
[FR Doc. 2023-21272 Filed 9-28-23; 8:45 am]
BILLING CODE 7400-01-P
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