A model motion for an agency to compel discovery responses before the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA), the Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), or the Veterans Employment Opportunities Act (VEOA). This Standard Document applies to federal agency workplaces. It is based on federal law. This Standard Document has integrated notes with important explanations and drafting tips.
In federal sector administrative hearings before a Merit Systems Protection Board (MSPB) administrative judge (AJ), an agency may file a motion to compel discovery responses if the appellant fails or refuses to respond in full to a discovery request (5 C.F.R. § 1201.73(c)). Before filing any motion to compel, the agency must discuss the anticipated motion with the appellant attempting to resolve the dispute and narrow the areas of disagreement (5 C.F.R. § 1201.73(c)).
This Standard Document is a template for the agency to file a motion to compel discovery responses in a MSPB appeal filed under:
The Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA). For information about the WPA, see Practice Note, Whistleblower Protections Under the Whistleblower Protection Act.
For more information about the MSPB appeal process, see Practice Note, MSPB Appeals Process: Overview.
This Standard Document assumes the agency is the party filing the motion to compel discovery responses. However, any party may file a motion to compel discovery responses and this template can be modified for use by the appellant.
This Standard Document is drafted to comply with MSPB regulations and the MSPB Judges' Handbook.Motions to compel discovery responses are common in MSPB practice. The agency representative should not overlook any opportunity to use discovery in preparing and presenting the best possible case. The agency can obtain non-privileged information during discovery about anything relevant to the matters involved in the case. Relevant information is broadly defined to cover any request that is reasonably calculated to lead to the discovery of admissible evidence. The agency can use discovery to get information and minimize the likelihood of surprise at the hearing on:
The appellant's bases for challenging the agency's decision. The appellant's bases for affirmative defenses. The mitigating factors the appellant may rely on.Any procedural violations the appellant alleges occurred, such as, for example, deficiencies in providing notice of the adverse action or challenging the legitimacy of a reduction-in-force.
Allegations of discrimination. Medical documentation. Identity of hearing witnesses. Identity of fact witnesses.The MSPB expects the parties to conduct discovery with minimal intervention from the AJ (5 C.F.R. § 1201. 71). The parties should attempt to resolve their own discovery disputes before filing any motions to compel discovery responses. However, a motion to compel discovery responses may be filed when the appellant fails to respond or provides incomplete or inadequate responses to discovery requests. Nothing prevents the parties from resolving the discovery dispute after the motion to compel is filed and before the AJ's ruling.
The MSPB explains the discovery process and the scope of discovery at 5 C.F.R. § 1201.72. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices before the MSPB but are instructive rather than controlling. The sequence of discovery and the motion to compel are described in the MSPB Judge's Handbook, Chapter 8.
The agency may file a motion to compel discovery responses after attempting to resolve the dispute with the appellant, when the appellant: