MSPB Issuing New Regulations

Written By Conor D. Dirks

In May 2019, the Merit Systems Protection Board (“MSPB”) “initiated a new review of its reuglations to further improve its adjudications and operations,” according to an MSPB interim final rule published on the Federal Register, effective October 7, 2024. Because the MSPB did not have a quorum from early 2017 to early 2022, those efforts halted. But in March 2022 after the quorum was restored, the “draft amendments prepared by the internal working group were then evaluated by the Board” and revised.

The interim final rule represents a series of major amendments to MSPB regulations. The first major change is to how the MSPB should act during an “inquorate” period like the one that existed from February 2017 to March 2022, a period of just over five years without a quorum. Now, the MSPB’s new regulations empower a lone Board member to perform certain tasks that move processing along, like finalizing settlements of appeals or requesting further development of an issue by an administrative judge after an initial decision issues.

The MSPB also added a regulation allowing the development of a “conduct policy” that prohibits abusive filings and conduct from parties during or after appeals, including the development of sanctions or consequences for violation of the policy.

The MSPB also clarified that only the appellant has the right to request a hearing, and that  neither administrative judges nor agencies may order a hearing if the appellant does not wish to hold one.

In further changes aimed at making the discovery process more efficient, the MSPB provided more time for parties to file motions to compel, and limited the amount of document requests and requests for admissions that each party can file with its adversary. Both of these changes are “aimed at reducing discovery disputes and expediting the processing of appeals.”

With regard to petitions for full Board review, the new regulations forbid “cross petitions” for review, and instead encourage both parties to file their own petition, raising all issues that they wish to pursue by the initial petition for review deadline.

Some of the most substantive changes come in the MSPB’s regulations regarding petitions for enforcement, in order to “simplify and expedite the processing” of such petitions. These regulations specify “what a noncomplying party must submit to demonstrate compliance after a finding of noncompliance,” an issue that comes up repeatedly in MSPB appeals when appellants prevail, and agencies must comply with the provisions of the Back Pay Act in order to be in compliance.

Read the full interim rule here: https://www.federalregister.gov/documents/2024/09/09/2024-19933/organization-and-procedures

Conor D. Dirks

Conor D. Dirks is a Partner at the law firm Shaw Bransford & Roth, where he has practiced law since 2013. Mr. Dirks’ law practice concentrates on representing federal officials and employees in all aspects of federal personnel employment law. Mr. Dirks litigates cases in federal courts, and administrative forums such as the United States Merit Systems Protection Board, U.S. Court of Appeals for the Federal Circuit, Foreign Service Grievance Board, and U.S. Equal Employment Opportunity Commission.

Mr. Dirks represents federal employees of all grade levels confronted with proposed disciplinary action, and also advises employees subject to federal investigations, including investigations conducted by Inspectors Generals, Congress, the Office of Special Counsel, the Department of Justice’s Office of Professional Responsibility, or administrative investigations by the employee’s own agency. He has briefed questions of due process in federal court, and has years of experience with a wide range of legal issues arising in federal employment. Mr. Dirks also represents federal whistleblowers and has assisted many employees in successfully disclosing wrongdoing at their agency to the Office of Special Counsel or to an Inspector General, and in seeking corrective action for whistleblower retaliation.

In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.

In law school, Mr. Dirks clerked at Shaw Bransford & Roth. He conducted legal research on a wide array of federal employment cases. He aided in the preparation of arguments for hearing before the Merit Systems Protection Board and Equal Employment Opportunity Commission. Mr. Dirks also served as a clerk at the High Court of the Republic of the Marshall Islands, where he updated and modernized the Marshall Islands Rules of Civil Procedure, the Marshall Islands Rules of Criminal Procedure, and the Juvenile Rules to reflect changes in the United States Federal Rules of Civil Procedure and electronic discovery practices. As a clerk at the high court, he helped craft decisions in cases involving government fraud, shareholder derivative actions, and family law, among others.

Mr. Dirks has also covered the Washington Wizards for the ESPN Truehoop Network since 2012, where he has provided NBA game coverage and long-form articles as a credentialed member of the media. His work has been featured and linked on a variety of major outlets, including Yahoo! Ball Don’t Lie, SBNation and ESPN.

https://www.shawbransford.com/conor-d-dirks
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