Peter B. Broida, Attorney at Law

COMMENTS BY PETER BROIDA TO MSPB CONCERNING
PROPOSED REVISIONS IN BOARD RULES INVOLVING CASE
SUSPENSION PROCEDURE AND DISCOVERY PROCEDURES

October 13, 2003

Bentley M. Roberts, Jr.

Clerk

Merit Systems Protection Board

1615 M St., N.W.

Washington DC 20419

Re: Proposed Rulemaking

Dear Mr. Roberts:

By way of response to the proposed rules, I note preliminarily that discovery was one of the principal innovations in civil service practice resulting from the 1978 Reform Act, and the suspension procedure was one of the few procedural innovations in Board regulatory practice that I can recall in the past ten years. The Board now seeks to restrict or reduce the benefit of both processes for reasons of what it styles adjudicatory efficiency. The Board seeks to promote these changes as means to advance adjudicatory efficiency through reduction in the time spent in discovery or in case suspension, when the real delays in Board practice occur not at the regional offices, where discovery and case suspensions are utilized, but at the Board's headquarters, where the multiple-level review process for PFRs is so inefficient that headquarters adjudication can take years rather than the four months that the framers of the Reform Act envisioned. In brief, to achieve adjudication efficiencies, the Board Members should concentrate on their own front office organizations, allowing appellants to establish their case records at the regional level without undue circumvention by rules that clearly signal to the administrative judge corps that the Board intends the appellants to have fewer procedural protections than they now have after 25 years of Board practice under the Reform Act.

COMMENTS ON PROPOSED REGULATORY CHANGES

A. CASE SUSPENSION PROCEDURE

Admonitions by Board members and chairmen over the years notwithstanding, AJs are reluctant to employ continuances to permit case processing that extends beyond the 120-day period set by their performance standards. That is not say that judges never extend their cases beyond 120 days. Some do. But some judges will not extend the case processing period, ostensibly on the basis that Board policy does not permit it. Dismissals without prejudice have been used to circumvent disfavored continuances, but DWOPs produce their own problems. Some appellants do not refile on time and the Board then (incorrectly) equates the belated refiling with a failure to file the appeal on time. Some judges cannot figure out how to set a deadline, particularly a conditional one, so that anyone can understand it, and some judges unilaterally impose a DWOP (and the burden it places on the appellant) in lieu of a continuance that an agency seeks.

The suspension process was no more than a continuance, under a different name, and under a slightly different set of rules. It permitted the parties to exercise a degree of control over their own cases, a measure that disturbed many judges (who have never litigated cases, never been parties to a case, and some of whom believe that if more time pressure is placed upon parties, particularly appellants, the cases will fail for lack of prosecution, withdrawal, or procedural error). The suspension, which generally required joint agreement, but which left no discretion with the judge, entrusted the parties with a measure of cooperative case management, so they could themselves sort out matters of complex discovery, settlement negotiations, or other impediments to adherence to an otherwise relatively inflexible administrative litigation deadline.

The suspension, in short, was a measure that was designed to suit the needs of the parties rather than the demands of the judge who, for good reasons or bad, set an arbitrary and too often inflexible litigation schedule. The suspension was a process that was long overdue, adopted over the substantial opposition of some judges and chief judges, and which seems to have served the parties well. It was a procedure that was fully consistent with the requirement expressed in the APA, 5 USC 554(b) that the scheduling of hearings be set with due regard for the convenience and necessity of the parties or their representatives.

The current regulatory effort, initiated without a Democratic Party representative on the Board, is viewed as an effort to denigrate the ability of appellants to present their cases. In almost 100% of Board litigation, it is appellants who have a case to make, and it is appellants who have the most to lose if the case they seek to make is derailed through procedural difficulties. Appellants are defaulted in large numbers for not filing appeals on time (when was the last time a single agency was sanctioned for filing an appeal response late?). Agencies routinely benefit from Board decisions allowing them to introduce new evidence with PFRs on jurisdictional issues, excusing their neglect in interim relief matters, and permitting them to obtain what amounts to summary judgment in hundreds of cases involving IRA and similar jurisdictional issues. The result is the perception that the Board is management-oriented and assists management in defense of cases through procedures and case law that undermines the ability of many appellants to have a hearing or obtain fair pre-hearing processes.

To avoid the perception or reality of management-orientation, it is vitally important that the Board create and maintain procedures that foster confidence by appellants and their counsel. To that end, the suspension process should be continued and not eroded on the extremely wan justification that cutting back procedural protections designed to achieve fair adjudication will produce speedier adjudication.

Comments Concerning 1201.28; Suspension:

(a) Joint requests: upon submission of the joint request, the suspension must be granted;

(b) Unilateral requests: change the time to 60 days (complex discovery requires at least two months, particularly if their are disputes that result in motions to compel discovery);

(c) Time for filing: the time should be up to 45 days from the date of the acknowledgment order; setting the time at seven days from receipt of the agency file allows far too little time to determine what discovery and settlement procedures may be required in the case (discovery is often not even initiated until after receipt of the agency file, and it is only with receipt of the agency file that the name of opposing counsel is usually determined).

(d) Untimely requests: the language is acceptable.

(e) Early termination: the language is acceptable; but there should be added a process whereby the suspension may be reinstituted once the particular impasse has been resolved.

(f) Limitation: the 30-day period is too short in some cases; allow the 60 days that were previously allowed, and note the procedure for obtaining the second 30-day period.

B. DISCOVERY PROCEDURES

Comments Concerning 1201.72; Discovery:

(a) The language is acceptable.

(b) The language is confusing and will breed many disputes. If discovery is as to "relevant" information, there will be innumerable objections to what is "relevant." Far better is the scope as defined by the Federal Rules: information that is relevant or likely to lead to the discovery of relevant information.

As to nonparty discovery, what is meant by "directly material?" Is there any justification for limiting discovery from nonparties? They should be subject to the same scope of discovery as are the respondents or appellants.

(c) Methods: the definition is acceptable, but the Board needs to clearly explain what the process will be as to requests for admissions. If they are going to be used, does the failure to timely respond to them, or to inadequately respond to them, result in the matter then being admitted? Is the Board willing to default agencies and appellants who do not properly handle admission requests? The Board should be clear on how it is going to handle the discovery device.

(d) Limitations: these are unnecessary. The judge already has the authority under the Federal Rules (as guidance) to limit discovery. If the limitations expressed in this proposed rule are necessary, how do (1) and (2) differ?

These "limitations" will breed a far greater number of objections to discovery than currently exist. Consider the use of agency interrogatories that call for personal information about the appellant that is readily available from the OPF. Is it really in the interests of fair adjudication to have appellants (and agencies) seizing upon these types of objections, as built in to Board regulations, rather than simply objecting, as necessary, under the Federal Rules when discovery is truly burdensome or oppressive?

Comments on 1201.73, Discovery Procedures

(a) You need to clarify whether discovery can be directed to only an agency or to a particular employee/officer of the agency. For example, I would prefer to direct interrogatories (or document requests) to particular individuals (the proposing or deciding official) and have them respond to the interrogatories rather than have the situation now often encountered in which the interrogatories go to the agency and are answered by the agency advocate who has no personal knowledge of the events and who slants the response as much as possible to benefit what he or she perceives as the best position of the agency. The Board has permitted agency representatives to answer interrogatories on behalf of agencies, a poor practice, since they are not witnesses subject to impeachment for a false or incomplete answer. If you are permitting interrogatories that are addressed to agency officials and employees, which I think is a good idea and will result in greater candor in discovery, it should be explicitly stated.

(b) Nonparty discovery

The whole process is very confusing as it has been stated in the past and as you continue to propose the process.

There is no voluntary discovery. There is either discovery or no discovery.

Eliminate references to voluntary discovery and save everyone a lot of confusion and despair that was promoted by an ill-considered regulation years ago. Do no perpetuate this error.

Discovery to a nonparty federal agency (or official) should be the same as discovery to a party, with one exception. Since the nonparty has not identified a representative, the regulation should call upon the party serving the discovery to serve the nonparty agency general counsel and to provide a service copy of the nonparty discovery to the opposing party (in other words, nonparty discovery should not be done in secret), and the party requesting the discovery should be required to serve a copy of the response on the opposing party.

There should be no "Board approved discovery request." As I noted, there should simply be a discovery request. If the nonparty fails to respond or fails properly to respond, a motion to compel may be filed. If the nonparty happens to be other than a federal agency, the only process the Board has available is a subpoena (to compel a document response or a deposition).

The whole nonparty discovery process needs to be simplified and handled in the same manner as required by the Federal Rules, except that nonparty federal agencies should be required to answer interrogatories, and produce documents and witnesses, without a subpoena unless a subpoena is required by reason of intransigence of the nonparty.

(1) The language is acceptable.

(2) The language is acceptable; except eliminate the reference to a Board-approved discovery order.

(3) The language is acceptable.

(d) Time limits

(1) The language is acceptable.

(2) As to the second round of discovery, the seven days should run from the date of receipt of the prior response (mailing times and intervening weekends or holidays would significantly erode the ability to engage in discovery predicated upon a deadline of seven days from service).

(3) The language is acceptable; except you would simply deal with a motion for a subpoena, since the deposition would be first noticed without involvement of the judge.

(4) Change the time to run from the date of receipt.

(5) The language is acceptable.

(e) Limit on discovery requests

To the extent that a limitation on the number of depositions and interrogatories forces the parties to focus their cases, it is a good idea, as long as the judge has the authority to vary from the regulatory limitation. I would strike "prior" approval from the limitations, and simply allow the judge to regulate the process as the needs of the litigation dictate; further, I would suggest the regulatory language permit the parties to agree to a different result (if the parties jointly agree to take 100 depositions, why stop them through a regulation?).

NECESSARY CHANGES IN BOARD DISCOVERY REGULATIONS

It would be unfortunate if the Board passed up the opportunity to consider, while revising its regulations, suggestions from the public that actually uses them. Accordingly, some suggestions are made here:

Deposition Practice

Current Board practice allows the parties to use the type of recordation process for depositions that the parties jointly agree upon. Too often, the appellant (who has no money and whose stenographic costs cannot be recovered in most Board appeals) wants to take a tape-recorded deposition, as the Federal Rules allow. The agency then refuses to "agree" to the procedure, forcing, as a practical matter, either a stenographic transcript or no deposition at all.

The Federal Rules allow for taped depositions, but they call for the presence of an "officer" who essentially authenticates the tapes. EEOC practice allows for self-authentication of taped depositions through the expedient of providing a copy of the tape to the other side after the deposition, a practice that I have used for some years.

I suggest that the EEOC practice be followed. Allow for anyone to use a taped deposition, and require that party to furnish a duplicate of the tape to the other side within a reasonable period after the deposition. Obviously a party may bring along a stenographer or another tape recorder should they desire to do so. Like any other process, if the taping process is abused, it can be controlled by the judge.

It may occur with taped depositions that a party seeks to use a small portion of the material that was recorded, and when this is done, to make an "unofficial" transcript of that segment. If the other side has the tape, the authenticity of the unofficial transcript is readily confirmed. The Board should permit those unofficial transcripts of taped depositions, or portions of them, to be used as long as the transcript has been served on the other side in time sufficient, prior to the hearing, for the other side to verify the accuracy of the transcript.

As to transcripts prepared by commercial reporters, the current practice in litigation is that the deponent has 30 days in which to read and correct a transcript. If the deponent is not interested in purchasing (or does not have available) a copy of the transcript, the deponent is usually invited to visit the office of the stenographic firm that prepared the transcript, where the transcript may be reviewed. The transcript is often not prepared for 7-15 working days after the deposition, and it is apparent that given the Board's expedition of cases, the deposition review process often does not work well. My suggestion is that if a party wants a deposition reviewed, or if the deponent seeks to review the transcript, the party taking the deposition should provide a copy, without charge, to the deponent and set a short period of time, five working days, for its review.

Limit on Discovery Requests

Some agencies, and a few appellants, preface their interrogatories and documents requests with pages of definitions and instructions. I ignore them. But if you are serious about simplifying the discovery process, require that instructions or definitions do no more than recite Board regulations (e.g., the timing and place of a discovery response, etc.). Require the parties to avoid cumbersome definitions and instructions and instead plainly state what they want, without undue prolixity, in their discovery requests.

Discovery Rulings

Particularly in deposition practice, the Board's rules on orders to compel discovery are unworkable. It is not practical to take a deposition, arrive at some critical juncture, and then have the situation of a witness being instructed not to answer a question or line of questions, with the result that one must file a motion to compel, have a response, get a ruling, and proceed with the deposition. The administrative judge (or any substitute judge in the office) should have the authority to make a telephone ruling on an objection during a deposition, with that ruling memorialized either by the judge or, reasonably soon after the deposition, by the party seeking the ruling. The judge will retain the authority, in complex or unusual situations, to require a motion, response, and formal ruling.

Settlement Efforts

The typical approach by an administrative judge towards settlement is to get the representatives (and, on occasion, the appellant) on the telephone, speak briefly about the possibility of settlement and periodically check to see whether the case has been settled. The efforts of settlement judges are a little more intense, perhaps, but they are similarly impersonal.

To settle more cases through settlements that are equitable and that will not be challenged as insufficient or coerced, judges have to become more personally involved in the settlement process. They must be prepared to meet with the parties (both sides) and their representatives and essentially engage in mediation. The recent mediation program of the Board was not considered particularly successful, and one of the reasons for that result was the seeming lack of interaction by the mediators with the parties. Settlement is a very personal, highly dynamic process. A fully trained mediator at each regional or field office would probably work much better in complex cases than the current Board process. An internally-employed mediator has the advantage over an external mediator because the resulting settlements would more likely conform to the jurisdictional limitations of the Board, both as to subject matter and compliance authority.

Board Decisional Procedures

The notion that Board decisional processes will be hastened by cutting back on the suspension process is not realistic. The delay is at the top, not at the bottom, of the administrative process. The Board has created a multi-tiered review system which is not working well.

I suggest that the Board take the following steps:

1. Abolish OAC and distribute its attorneys among the several Board members;

2. PFRs and responses to the Board would be filed in triplicate, each member receiving the pleadings.

3. Each member would have a politically-appointed chief counsel and deputy chief counsel, who in turn would supervise the efforts of the civil service attorneys working on the staff of the member.

4. The staff attorneys would develop areas of specialization so that particularly complex cases could be first reviewed and decisions drafted by a subject matter expert;

5. Depending upon the complexity of the case (and use of a subject matter expert), responsibility for the draft of a final decision (or supporting justification for a short form decision) would be rotated among the members. The draft final decision or supporting memo would be reviewed by the chief or deputy chief counsel and by the member, who would vote the case and circulate the case file and draft decision or memo to the other members who could, as now, secure more intensive review or prepare a dissent.

This procedure would eliminate the delay inherent in current OAC review procedures, and allow quicker involvement in the decisional process by the Board member (and chief counsel). It would also allow for the expedition that should result in some subject matter expertise in particularly complex areas of Board jurisdiction (IRA, VEOA, USERRA, disability discrimination).

Public Participation in Board Procedures

For 25 years the Board has operated in a virtual vacuum relative to participation by its constituency in its processes. Other agencies, FLRA and EEOC, have periodic conferences or management surveys that actively solicit the input of practitioners and participants in the litigation processes. Quality reviews or customer satisfaction surveys are conducted by other agencies. Board members appear to have little interaction among themselves, and Board members and regional officials have virtually no regular, preplanned interaction with practitioners. These practitioners, on both sides of the litigation agenda, have experiences and suggestions that would benefit the Board. It is time that the Board emerge from its insular status and interact with the outside world.

CONCLUSION

The Board's discovery procedures have worked reasonably well over the years, allowing for more complete development of records, albeit with a consequential increase in motion practice among those who use discovery and motions. The suspension practice has worked quite well in the couple years that it has been employed. The Board should consider improvements upon the practices that it has developed, and should take into account commentary by practitioners in the field, who litigate these cases, and measure carefully comments by judges who do not share an advocacy role that requires zealous representation. The Board should recognize that not all parties will have representatives, and that not all representatives will be highly skilled C and for those individuals the rules the Board develops may need to be someone restrictive to avoid litigation anarchy C but the Board must also allow those parties with skill representatives to have the benefit of the representatives they employ, to an including skillful use of pre-hearing discovery.

The President's Management Agenda for FY2002, used by Board staff members to justify restrictions on the current suspension regulation, is not a mandate for agencies to abort due process, nor could it be, for the Board is an independent agency with a statutory requirement under the APA for hearings that reasonably meet the needs of the parties and their representatives. The Agenda is a plan for statutory reform through congressional action. But to the extent that it applies to the daily operation of administrative agencies, the Management Agenda, at p. 4, notes that reform must be guided by principles that are "Citizen-centered, not bureaucracy-centered." The Board adjudication process too often has met the perceived needs of judges on performance standards, not appellants attempting to secure redress, and that is an unfortunate result.