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PROPOSED/INTERIM RULEMAKING COMMENTS CONCERNING PRE–DISCOVERY DISCLOSURES; SUSPENSION PROCEDURES; GOOD FAITH EFFORTS TO RESOLVE DISCOVERY DISPUTES; AND DISCOVERY FROM NONPARTIES

Dear Mr. Spencer:

You have asked for comment on the April 3, 2008, Federal Register Notice containing revisions to Board practice.

A.       Pre-discovery Disclosures

The pre-discovery disclosures established by the 1983 amendments to the Federal Rules of Civil Procedure were designed, according to the Advisory Committee Notes, to accelerate the exchange of basic information about the case and to eliminate the paperwork involved in requesting such information.

There are a couple major distinctions between civil litigation in the courts and administrative litigation before the Board.

First, with some exceptions, litigation in the courts tends to go on for many months or even years prior to trial, meaning that early disclosure of pertinent information may advance early attempts at settlement of the case which, otherwise left to the whims of lawyers, might continue for considerable periods of time as the parties pursue, or fail to pursue, discovery.

The MSPB processes are already expedited, providing for, in the usual case, a hearing within 60 or 70 days from the filing of an appeal. Given the relatively short lifespan of an MSPB appeal before an administrative judge, expedition for the sake of expedition hardly justifies creation of yet another procedure to be followed and fought over in what is supposed to be relatively simplified administrative litigation.

Second, more than half of the MSPB appeals are litigated by pro se appellants whose knowledge of the niceties of civil procedure can be quite limited. The Board already has enough trouble trying to shepherd pro se appellants through discovery and prehearing procedures. Doubtless agencies will file motions for sanctions upon the perceived failure of appellants, particularly pro se appellants to abide by early disclosure procedures. Creating a whole new step of some complexity in Board processes would not be justified by the second consideration noted by the Advisory Committee, that being reduction of paperwork.

Balanced against the increased complexity of early disclosure rules is the fact that parties often avoid their discovery responsibilities, through objections or inadequate responses to discovery, by stating that information cannot be provided because the case has not advanced far enough towards the hearing, meaning parties occasionally refuse to provide the names of witnesses or lists of exhibits likely to be used in hearing because the case was not then properly prepared by the representatives of those parties. The Board’s hearing processes are too fast, and the Board’s discovery processes are by comparison too slow, to deal effectively with protestations by parties or their representatives that they have been unable to determine what material is or is not relevant in response to legitimate discovery requests.

I add that, as a practical matter, most agencies will be unable to respond within 10 days of acknowledgment order. Some agencies seem to have extreme difficulty assembling a response to the acknowledgment order within 25 days from the issuance of the order.

The Board often issues regulations or boilerplate forms without recognizing the necessity of tailoring the requirements inherent in those regulations or those forms to the practicalities of the case. Pro forma regulations and boilerplate make it easier for judges to handle cases, since they are not called upon to exercise discretion—leaving the parties to sort out the resultant confusion in case processing. I think here of the many acknowledgment orders I have seen, in appeals timely filed on behalf of my clients, suggesting that the appellant name his or her representative, if any, or questioning whether the appeal was timely filed, when even a cursory review would have shown it to be timely.

A better approach that may be considered by the Board is to require a scheduling conference by the judge soon after the issuance of the acknowledgment order, which would allow the judge to determine whether pre-discovery disclosures should be required. The judge would then also be able to set a realistic time limit for the disclosures and, at the same time, consider the efficacy and scheduling of subsequent discovery requests by the parties.

Given the accelerated scheduling of hearings, and the necessity for a relatively quick conclusion of discovery in most Board cases, the new regulation may be a solution in search of a problem. But it may be worth trying and then evaluating, but subject to the discretion of an administrative judge based upon an understanding by the judge of the nature the case and the parties and their representatives.

B.       Limitations Upon Suspension Procedure

Although the Board attempts, when possible, the follow the Federal Rules of Civil Procedure, there are times when the Board jettisons commonplace litigation techniques in the interest of expediency.

One of the most notable regulatory failures of the Board has been its informal insistence that continuances not be granted. Although judges are technically not precluded from granting continuances, as a practical matter, as a result of informal but clear guidance from the Board and its front office, continuances are routinely denied so the judges can meet their case processing deadlines.

In an effort to avoid wholesale disruption of litigation processes through an arbitrary imposition of a rule banning continuances, the Board has come up with some contrivances, most notably the use of dismissals without prejudice. That procedure, however, creates its own set of problems when appellants are effectively sanctioned for refiling their appeals late through dismissals of their appeals. The Board fails to distinguish between an appeal that is timely filed initially and the untimely refiling of the same appeal. Some effort has been made to mitigate the harsh consequences regarding refiled cases through the use of automatic refilings, particularly in cases involving retirement benefit claims.

Eventually recognizing that the Board serves the parties, and not the reverse, the Board created, first on a trial basis, then permanently, a suspension process that allowed the parties the ability to obtain their own continuances, usually on a basis of mutual consent, for a period of 30 to 60 days, without adverse consequence to the judges’ performance appraisals.

Then some judges complained that they should remain in control of their cases and that allowing parties to determine the course of their own litigation through brief suspensions of proceedings was somehow unduly infringing upon the authority of the attorney examiners designated by the Board as administrative judges.

This peculiar complaint by judges, many of whom have never handled litigation by themselves as representatives, led the Board to restrict the use of the suspension of proceedings, making it discretionary with the judge and making it nonrenewable following 30 days. That led to an increase in the use of dismissals without prejudice and the problems that occasionally occur when cases are not timely refiled.

There is much to commend flexibility in litigation practice, even before the MSPB, and little to suggest arbitrary restrictions on the authority of judges to accommodate the joint requests by parties for additional time in the litigation process.

Since the Board still avoids the use of continuances, the suspension process, which in effect constitutes a limited use of a continuance, should be restored, for the convenience and necessity of the parties, who should again enjoy the benefit of a more flexible litigation process that permits, upon joint request, an automatic suspension of proceedings in 30 days, renewable upon joint request. Lacking a joint request, the suspension can be granted for good cause shown.

C.       Joint Efforts to Resolve Discovery Disputes

The Federal courts require good-faith efforts to resolve discovery disputes prior to the filing of motions to compel discovery. The EEOC requires the same attempts to resolve disputes prior to the filing of motions to compel, and the MSPB reasonably insists that the parties make good-faith efforts to resolve discovery disputes prior to filing motions to compel. Efforts to resolve these disputes must be viewed realistically, meaning that good-faith may consist only of making a telephone call, if it is not returned prior to filing a motion, and recognition must be given to the time allowed for filing a motion to compel, which is quite short.

D.       Nonparty Discovery Procedures

The Board’s nonparty discover procedures are incomprehensible in the manner in which the Board attempts to distinguish voluntary efforts to obtain discovery from more formal procedures, including motion practice, to obtain discovery from nonparties.

The nonparty discovery procedures were created long ago and it is unclear why the Board distinguished between voluntary and not so voluntary efforts to obtain discovery from nonparties. The process is confusing to both those seeking discovery and to those responding to it.

It would behoove the Board to scrap the current regulation and simply treat nonparties as any other party to Board litigation, allowing one of the other party to serve upon nonparties document requests or deposition notices, leaving to the nonparties the option of objecting to or moving to quash the discovery requests or, lacking objection or compliance, leaving the requester the option of moving for an appropriate motion seeking a subpoena or an order from the judge to compel the discovery from the nonparty.

I trust my comments have been of some assistance in the rulemaking process. I appreciate the opportunity to have provided these remarks.

Yours very truly,

Peter B. Broida

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