Peter Broida's Rulemaking Petition: Use of Nonprecedential Decisions - August 21, 2014
Peter B. Broida

Attorney at Law
1840 Wilson Blvd Suite 203
Arlington, VA 22201
Fax: 703-841-1006

August 21th, 2014

Merit Systems Protection Board
Clerk of the Board
1615 M Street NW.,
Washington, DC 20419



Pursuant to 5 CFR 1200.4, this is a rulemaking petition for the Board's consideration.

A. Proposed Amendment of 5 CFR 1201.117(c)(2)

Current rule:

    (2) Nonprecedential Orders. A nonprecedential Order is one that the Board has determined does not add significantly to the body of MSPB case law. The Board may, in its discretion, include in nonprecedential Orders a discussion of the issue(s) to assist the parties in understanding the reason(s) for the Board's disposition in a particular appeal. Nonprecedential Orders are not binding on the Board or its administrative judges in any future appeals except when it is determined they have a preclusive effect on parties under the doctrines of res judicata (claim preclusion), collateral estoppel (issue preclusion), judicial estoppel, or law of the case. Parties may cite nonprecedential Orders, but such orders have no precedential value; the Board and its administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board's case law.

Proposed rule:

(2) Nonprecedential Orders. An order which is designated as nonprecedential is one determined by the Board as not adding significantly to the body of law.

    (I) Parties' Citation of Nonprecedential Orders. Parties are not prohibited or restricted from citing nonprecedential orders. This rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, and the like based on a nonprecedential order

    (ii) Board Consideration of Nonprecedential Dispositions. The Board may refer to a nonprecedential order and may look to a nonprecedential disposition for guidance or persuasive reasoning, but will not give one of its own nonprecedential orders the effect of binding precedent.

B. Petitioner's Interest

Petitioner is a practitioner before the Board, author of materials concerning Board practice, and lecturer on Board law and practice. His interest is in informed and fair administration of Board procedures.

C. Arguments Favoring Amendment

The Board began issuing nonprecedential orders to better inform parties of the bases for appellate dispositions. Some of the orders reflect controversy within the Board (dissents or concurrences); some provide excellent summaries of past law; some discuss or resolve legal points that are novel, that is, not expressly addressed in precedent; some add nothing to the existing body of law. Some precedential decisions add nothing, or little, to the existing body of law. There has not yet appeared a nonprecedential order that directly contradicts precedent; nor do nonprecedential orders appear to be inconsistent in legal analysis.

The proposed amendment would conform Board practice with that of its reviewing court. The Board cites and relies upon Federal Circuit nonprecedential decisions. There is no clear reason why nonprecedential Board orders, carefully prepared by the OAC, should not be relied upon by parties, their counsel, and judges. The selection of orders as nonprecedential is a choice that necessarily depends upon an encyclopedic knowledge of all Board decisions issued since 1979. Such knowledge, even among expert practitioners, is necessarily imperfect, rendering imperfect by equal measure the classification of a decision as nonprecedential.

Thanking you for your consideration, I am,

Yours very truly,

Peter B. Broida