Peter B. Broida

Attorney at Law                                                                                           2009 North Fourteenth Street, Suite 705

                                                                                                                       Arlington, VA 22201

                                                                                                                       Tel. (703) 841-1112

                                                                                                                       Fax (703) 841-1006

October 27, 2010

Susan Tsui Grundmann

Chairman

Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

           Re:      FEDERAL REGISTER RULEMAKING NOTICE: October 5, 2010

                       Nonprecedential Board Decisions

           Attn: William Spencer, MSPB Clerk

Dear Chairman Grundmann:

The Board has issued a regulation to be effective prior to receipt and evaluation of commentsaffecting the manner that the Board issues final decisions.

Unfortunately the commentary accompanying the rulemaking notice offers little by way ofjustification or necessity for the proposed change.

The Board has always reserved to itself the authority to provide additional information, oftenin the form of footnotes, to orders summarily denying petitions for review. Accordingly, thereappears to be no necessity for a separate class of decisions that are not precedential but thatprovide for inclusion of "additional discussion of the issues raised in the appeal."

If the purpose is to avoid publication on the Board’s website or in the Merit Systems ProtectionReporter of these expanded and possibly expedited summary decisions, I suspect thatcommercial reporting services that now report the initial decisions of judges will also carry thefull text of the expanded summary decisions, and if that is the case, the Board will create twoclassifications of articulated decisions: precedential and nonprecedential.

This leads to the exact problem that is now experienced with publication of nonprecedentialdecisions of federal appellate courts, including the United States Court of Appeals for theFederal Circuit. There was a time when decisions that were not for publication could neitherbe cited nor relied upon by parties, other than to demonstrate the effect under res judicata ofthe particular decision on the parties involved.

When, however, West Publishing Company created the Federal Appendix, makingnonprecedential readily available for citation, the appellate courts capitulated to the necessityto permit citation and reliance upon those nonpecedential decisions, which although relegatedto second-class status, were and are still relied upon by litigants and cited to the courts.

I expect that if the Board creates another class of decisions, those decisions will beresearched and cited by parties who have the resources to recognize and to reference thosecases, and that inconsistencies between the augmented summary decisions and precedentialdecisions will be the cause of unnecessary elucidating litigation.

Board case law is already sufficiently complex and difficult enough to research fornonspecialists without creating a whole separate level of decisions whose significance will beunclear to practitioners and, I suspect, to the Board’s reviewing court or to a federal districtcourt reviewing a mixed case complaint, to say nothing of the EEOC and labor arbitratorswho, under Cornelius v. Nutt, are supposed to follow Board law in adverse actions andperformance-based cases litigated through contractual grievance arbitration procedures.

In summary, the use of a subset of Board decisions that will be difficult to research, and whichwill be a source of confusion as to precedential value, serves neither the goals of opengovernment nor simplification, or lack of further complication, of an already complex body ofdecisional law from the MSPB and the Federal Circuit.

Given the ability of the Board over many years to provide "additional information" throughfootnote commentary in summary final decisions, there appears to be neither need for norvalue from the regulatory change.

Your consideration of these comments is, as always, appreciated.

Yours very truly,

Peter B. Broida