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Rules and Regulations Federal Register

4489 

Vol. 80, No. 18 

Wednesday, January 28, 2015 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Part 1201 

Practices and Procedures 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: The Merit Systems Protection 

Board (MSPB or the Board) hereby 

amends its regulations governing how 

jurisdiction is established over Board 

appeals. 

DATES: Effective March 30, 2015, and 

applicable in any appeal filed on or after 

March 30, 2015. 

FOR FURTHER INFORMATION CONTACT: 

William D. Spencer, Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street NW., Washington, DC 20419; 

phone: (202) 653–7200; fax: (202) 653– 

7130; or email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: The Board 

has been considering for several years 

changes to its regulations governing 

how jurisdiction is established over 

MSPB appeals. On June 7, 2012, the 

Board proposed amendments to 5 CFR 

1201.56. 77 FR 33663. In that proposed 

rule, the Board noted that 5 CFR 

1201.56 is in conflict with a significant 

body of Board case law holding that 

certain jurisdictional elements may be 

established by making nonfrivolous 

allegations. The Board therefore 

proposed to amend this regulation to 

allow the use of nonfrivolous allegations 

to establish certain jurisdictional 

elements. 

On October 12, 2012, after receiving 

numerous thoughtful comments 

concerning the proposed rule, the Board 

withdrew its proposed amendments to 5 

CFR 1201.56 in order to reconsider the 

matter. 77 FR 62350. The Board 

thereafter directed the MSPB regulations 

working group to thoroughly reevaluate 

the Board’s regulations relating to the 

establishment of jurisdiction. The MSPB 

regulations working group developed 

four options (A–D) and on November 8, 

2013, the Board published a request for 

public comments in the Federal 

Register. 78 FR 67076. 

On April 3, 2014, after considering 

each of the four options developed by 

the MSPB regulations working group 

and comments from the public, the 

Board published a proposed rule. 79 FR 

18658. This proposed rule included a 

section-by-section analysis of the 

proposed amendments to the Board’s 

regulations. 

Comments, Responses, and Changes to 

the Proposed Amendments 

In response to publication of the 

proposed rule, the MSPB received 104 

pages of comments from 19 

commenters. These comments are 

available for review by the public at: 

www.mspb.gov/regulatoryreview/

index.htm. As explained below, the 

Board carefully considered all public 

comments and has decided to adopt the 

proposed rule as final with several 

relatively minor changes. 

A commenter criticized the MSPB for 

failing to explain in the proposed rule 

why it had rejected the other options (A, 

C, and D). This commenter further 

suggested that the proposed rule 

therefore would not be entitled to 

deference under Chevron U.S.A., Inc. v. 

Natural Resources Defense Council, 

Inc., 467 U.S. 837, 842–45 (1984) 

(setting forth the legal test for 

determining if a court should grant 

deference to a Federal agency’s 

interpretation of a statute which it 

administers). 

The Board appreciates the 

commenter’s observation. The Board did 

indeed consider all options, A–D. The 

Board used the MSPB regulations 

working group (a committee of seasoned 

MSPB employees formed for the 

accomplishment of this important task) 

to carefully review and present options 

for the Board’s consideration. The 

options initially developed by the 

regulations working group were 

presented to the Board and published 

for public comment in the Federal 

Register on November 8, 2013. 

Following several months of additional 

review by the regulations working 

group, the options and public comments 

were presented to the Board Members 

for a decision regarding how to proceed. 

Following extensive review, the Board 

Members unanimously selected a 

revised option B as the best choice and 

published it as a proposed rule on April 

3, 2014. 

The Board Members selected revised 

option B because it was largely 

consistent with current precedent and 

would clarify certain matters without 

requiring potentially disruptive changes 

that, in the end, would contribute little 

to the transparency and efficiency of 

MSPB adjudications. For these reasons, 

the Board Members also believed that 

option B was much less likely than 

options C and D to be successfully 

challenged on appeal. Finally, the Board 

determined that option B was unlikely 

to cause possible unintended 

consequences or process disruption that 

would adversely affect the parties who 

appear before the Board. Thus, in 

selecting option B, the Board decided 

that it was the best option for all parties 

concerned, including pro se and 

represented appellants, agencies, 

unions, attorneys, and the MSPB itself. 

Option A set forth a general 

framework for jurisdictional 

determinations and informed the parties 

of only the general rules the Board 

follows in allocating burdens of proof. 

This option also stressed the important 

role that administrative judges play in 

explaining applicable burdens of proof 

and requirements for establishing MSPB 

jurisdiction. As to the latter point, 

option B likewise envisions an 

important role for administrative judges. 

The Board declined to adopt option A 

because this option, while consistent 

with current law and practice, included 

minimal additional information but not 

the helpful information contained in 

option B. Therefore, option A did not 

satisfy the Board’s intention to make the 

Board’s regulations more 

comprehensive and user-friendly. 

The Board Members also carefully 

considered options C and D but decided 

against adopting them for several 

reasons. First, as noted above, the Board 

determined that the numerous major 

changes suggested in options C and D 

would change the current scheme in a 

manner inconsistent with long-standing 

precedent and procedures without 

offering any real advantage to the Board 

or MSPB litigants. The Board also was 

concerned that adoption of the more 

radical changes in these two options 

might not be accorded Chevron 

deference and that the lack of any real 


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advantage to options C and D made 

running such a risk unappealing. 

The Board Members thus chose the 

option that they believed would most 

efficiently serve the Board’s critical 

mission of adjudicating appeals. In 

addition, the Board, as the promulgator 

of these regulations, has considerable 

discretion regarding, and is particularly 

well-suited to speak to, its intent in 

adopting these regulations and thus is 

entitled to Chevron deference as to its 

interpretation of these regulations. See, 

e.g., Reizenstein v. Shinseki, 583 F.3d 

1331, 1335 (Fed. Cir. 2009); Gose v. U.S. 

Postal Service, 451 F.3d 831, 837 (Fed. 

Cir. 2006). 

Finally, the MSPB would further note 

that other commenters, such as the 

Office of Personnel Management (OPM), 

lauded the careful consideration 

exhibited by the Board and had no 

significant objection to the Board’s 

selection of option B. 

A commenter expressed the concern 

that new section 1201.57 would 

improperly bar appellants from raising 

the ‘‘principles’’ embodied in 

affirmative defenses in individual right 

of action (IRA), Veterans Employment 

Opportunities Act of 1998 (VEOA), and 

Uniformed Services Employment and 

Reemployment Rights Act of 1994 

(USERRA) appeals as required under 5 

U.S.C. 7701(c)(2). 

This commenter chiefly relies upon a 

nonprecedential Board decision 

(Robinson v. Department of Housing 

and Urban Development, MSPB Docket 

No. CH–3330–11–0845–I–1, 119 

M.S.P.R. 21 (Table), Nonprecedential 

Final Order (Dec. 26, 2012)), that 

appears to state that an affirmative 

defense under 5 U.S.C. 7701(c)(2) may 

be raised in a VEOA appeal. Such a 

holding is, however, inconsistent with 

longstanding Board precedent. Ruffin v. 

Department of the Treasury, 89 M.S.P.R. 

396, ¶ 12 (2001) (in a VEOA appeal the 

Board cannot consider a claim of 

prohibited discrimination under 5 

U.S.C. 2302(b)(1) because VEOA does 

not grant the Board the authority to 

consider claims for violations of laws 

other than veterans’ preference rules). 

Thus, the Board will not amend the 

proposed rule as suggested by this 

commenter. 

A commenter expressed concern 

regarding the clarity of MSPB 

regulations, especially for pro se 

litigants and inexperienced counsel. 

The commenter requested that the 

Board explain in the regulations how a 

nonfrivolous allegation of jurisdiction 

under oath or penalty of perjury is done. 

This commenter also suggested that the 

MSPB redraft the proposed definitions 

related to jurisdiction in section 1201.4 

and include examples illustrating how 

an appellant can establish MSPB 

jurisdiction by making nonfrivolous 

allegations. The commenter also 

suggested that such examples should 

address how to establish MSPB 

jurisdiction over constructive adverse 

actions and IRA appeals. 

While we are cognizant that the 

regulations contain legal concepts that 

may be complex and difficult to 

understand, especially for pro se 

litigants, the complexity of the 

regulations is a product of the 

complexity of the law itself. The Board 

has found that attempting to clarify 

some concepts by restating them in 

plain English, or by providing 

illustrative examples of them, may 

create a misleading or incomplete 

definition of the concept. In particular, 

providing examples of some of the 

circumstances that could support 

jurisdiction over constructive action 

appeals raises a danger that they may 

limit the circumstances that will be 

described by pro se appellants to 

establish jurisdiction. Furthermore, the 

statement in the regulation is not 

intended to be a detailed substantive 

description of an appellant’s burden in 

a particular type of appeal. Rather, the 

regulations generally inform the reader 

that the appellant is expected to provide 

specific factual allegations that describe 

a matter within the Board’s jurisdiction. 

Under court and Board precedent, the 

Board already expects that MSPB 

administrative judges will fully inform 

an appellant with specificity of his or 

her burden of proving the claim, the 

burden of going forward with the 

evidence, and the types of evidence 

necessary to make a nonfrivolous 

allegation. Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643–44 

(Fed. Cir. 1985). In addition, the 

statement that the allegations 

‘‘generally’’ should be under oath or 

penalty of perjury is not an absolute 

evidentiary requirement. Where 

appropriate, the Board may still find a 

nonfrivolous allegation of jurisdiction 

based solely upon the documentation in 

the appeal file without relying on a 

verified factual statement from the 

appellant. Furthermore, making a 

statement under penalty of perjury is 

not a significant hurdle. For example, in 

cases filed using the Board’s e-Appeal 

Online system (https://eappeal.mspb.gov), the appellant can 

easily meet it by merely checking a box 

in the initial appeal to verify under 

penalty of perjury that the information 

being asserted on the form is true and 

correct, based on the appellant’s 

information and belief. 

In response to sections 1201.56(d) and 

1201.57(e), which require the MSPB 

administrative judge to provide the 

parties with information relating to the 

requirements for establishing 

jurisdiction and other relevant 

information, a commenter expressed a 

concern that show cause orders issued 

by administrative judges are generally 

not tailored to the facts of the particular 

appeal or written in plain and easily 

understood language. 

Administrative judges frequently 

must issue jurisdictional orders that 

provide complex legal information early 

in the processing of a case, when they 

still have only a partial understanding 

of the factual basis of the appeal. As a 

result, the orders by necessity often 

must be general and cannot be tailored 

to the specific appeal. In addition, as 

with these regulations, it often is not 

possible to define the applicable 

jurisdictional standards with precision, 

while still using plain English. The 

administrative judges, however, are 

expected to provide further explanation 

of the Board’s jurisdictional standard in 

appropriate cases. See Parker v. 

Department of Housing and Urban 

Development, 106 M.S.P.R. 329, ¶ 7 

(2007) (while the general statement on 

jurisdiction in the acknowledgment 

order was appropriate when it was 

issued, the appellant’s reply 

necessitated an additional show cause 

order setting forth a more explicit 

explanation about the evidence and 

arguments he would need to present to 

nonfrivolously allege that his appeal fell 

within the Board’s jurisdiction). 

A commenter suggested that the 

Board include a provision in its 

regulations setting forth an agency’s 

responsibility to disclose relevant 

information to an appellant when an 

issue of jurisdiction or timeliness is 

raised in a show cause order. 

The Board agrees with the commenter 

that an agency is obligated to disclose 

information relevant to the issue of 

jurisdiction. This obligation has already 

been recognized in MSPB precedent, 

and appellants are entitled to discovery 

of matters relevant to jurisdiction. See 

Parker, 106 M.S.P.R. 392, ¶ 8. The 

Board, however, does not feel it is 

necessary to codify this precedent in 

these regulations. With regard to issues 

of timeliness, the agency generally 

completes its duty to disclose relevant 

information once it establishes that it 

provided the appellant with the 

appropriate notice of appeal rights. 

A commenter stated that it was 

unrealistic to require an appellant to 

establish jurisdiction without first 

engaging in discovery and that the 

proposed amendments would make it 


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more difficult to rely upon 

circumstantial evidence to establish 

MSPB jurisdiction. 

We believe that the proposed 

amendments will not result in making it 

more difficult for an appellant to show 

that the Board has jurisdiction over his 

appeal. As noted in our response to an 

earlier comment, administrative judges 

issue acknowledgement orders and 

additional orders if needed to inform 

the parties of their burdens. The Board 

requires its administrative judges to 

provide a fair and just adjudication and 

to rule on relevant evidence. 5 CFR 

1201.41; see also, e.g., Hall v. 

Department of Defense, 119 M.S.P.R. 

180, ¶¶ 4, 5 (2013). Administrative 

judges also have wide discretion in 

matters pertaining to discovery, and an 

administrative judge’s discovery rulings 

will not stand if they are too restrictive. 

See, e.g., Jenkins v. Environmental 

Protection Agency, 118 M.S.P.R. 161, 

¶ 27 (2012). 

A commenter questioned why the 

Board did not include USERRA 

reemployment claims under proposed 

section 1201.57 and suggested that this 

section be amended to cover such 

claims. 

From 1979 until 1994, a claim that an 

agency violated an individual’s right 

under USERRA’s predecessor statute to 

return to civilian employment following 

military duty was within the Board’s 

appellate jurisdiction under regulations 

issued by OPM. See 1979 through 1993 

versions of 5 CFR part 353, subparts C 

& D. Such reemployment appeals were 

governed by section 7701 procedures. 

See Britton v. Department of 

Agriculture, 23 M.S.P.R. 170, 173 

(1984). USERRA, enacted in 1994, 

made, among other things, the basis for 

Board jurisdiction over reemployment 

appeals statutory. See 38 U.S.C. 4324. 

The Board has no basis for concluding 

that in enacting USERRA Congress 

meant to bring reemployment appeals 

outside the coverage of 5 U.S.C. 7701; 

the effect of such a change would have 

been to place the burden of proof on the 

merits on the appellant, when under 

section 7701(c)(2)(B) it is on the agency, 

Britton, 23 M.S.P.R. at 173, and to 

eliminate an appellant’s right to raise an 

affirmative defense under section 

7701(c)(2). Such changes would have 

been to the detriment of individuals 

seeking to vindicate their reemployment 

rights following military duty, and there 

is no indication that in enacting 

USERRA Congress intended such 

changes to Board procedures. 

Accordingly, the Board will not include 

USERRA reemployment appeals in 

section 1201.57, as that section covers 

appeals in which the appellant bears the 

burden of proof on the merits and may 

not raise affirmative defenses. 

Nevertheless, the commenter is 

correct in stating that the Board has 

taken jurisdiction in USERRA 

reemployment appeals based on 

nonfrivolous allegations. See Silva v. 

Department of Homeland Security, 112 

M.S.P.R. 362, ¶ 19 (2009); Groom v. 

Department of the Army, 82 M.S.P.R. 

221, ¶ 9 (1999); accord DePascale v. 

Department of the Air Force, 59 

M.S.P.R. 186, 187 n.1 (1993) (arising 

under USERRA’s predecessor statute). 

The current regulatory revisions 

generally aim to codify the case lawbased methods for establishing 

jurisdiction in different types of 

appeals, however, and there is no reason 

to use this occasion to place a higher 

jurisdictional burden than currently 

exists on appellants in USERRA 

reemployment appeals. Thus, it is 

appropriate to except USERRA 

reemployment appeals from the 

requirement at section 1201.56(b)(2)(A) 

that jurisdiction be established by 

preponderant evidence. The final rule 

provides an exception to section 

1201.56(b)(2)(A) for cases in which the 

appellant asserts a violation of his right 

to reemployment following military 

duty under 38 U.S.C. 4312–4314. 

Several commenters expressed a 

concern that the MSPB was raising 

jurisdictional standards in constructive 

adverse action cases without any stated 

rationale for such action. 

The Board understands the 

commenters’ concerns regarding the 

proposed rule § 1201.4(s), but the rule 

neither raises jurisdictional standards in 

cases before the Board, nor alters Board 

precedent concerning the type of 

documentation that can be used to 

satisfy the burden of making a 

nonfrivolous allegation. It is merely to 

remind the parties of obligations 

imposed by 18 U.S.C. 1001(a). The 

definition of ‘‘nonfrivolous allegation’’ 

in the first sentence of proposed rule 

§ 1201.4(s) is based on longstanding 

Board precedent. The second sentence 

in the proposed rule further explains 

that, when an allegation is made under 

oath or penalty of perjury, it will 

generally be considered nonfrivolous if 

it is more than conclusory, plausible on 

its face and material to the legal issues 

in the appeal. The Board furthers note 

that, in this context, an allegation is 

made under oath or penalty of perjury 

if it is accompanied by the following: ‘‘I 

declare under penalty of perjury that the 

foregoing is true and correct to the best 

of my knowledge, information and 

belief. Executed on (date). (Signature).’’ 

See 28 U.S.C. 1746; Cobel v. Norton, 391 

F.3d 251, 260 (D.C. Cir. 2004). 

Several commenters stated that the 

MSPB was inappropriately limiting the 

type of evidence that could be used for 

satisfying the burden of making a 

nonfrivolous allegation. A commenter 

was concerned that the Board was 

improperly limiting such evidence to a 

statement under penalty of perjury 

while disallowing the use of evidence, 

such as an email. 

We disagree with the commenter’s 

statement that the Board is 

inappropriately limiting the type of 

evidence that could be used for 

satisfying the burden of making a 

nonfrivolous allegation. 

Several commenters questioned 

whether the MSPB could modify the 

definition of ‘‘nonfrivolous allegation’’ 

in a regulation because that term has 

already been defined in controlling U.S. 

Court of Appeals for the Federal Circuit 

precedent interpreting jurisdictionconferring statutes and OPM 

regulations. 

As previously stated, the definition of 

‘‘nonfrivolous allegation’’ in proposed 

rule 1201.4(s) is based on longstanding 

Board precedent. Further, while we are 

cognizant of the U.S. Court of Appeals 

for the Federal Circuit’s precedent 

analyzing the Board’s case law applying 

nonfrivolous allegation standards, we 

disagree with the commenters’ 

conclusion that this precedent is 

binding. The court has routinely held 

that the Board has properly applied the 

nonfrivolous allegation standard. We 

believe this court review is instructive, 

rather than directive. In addition, we 

believe it is not appropriate to 

determine here whether the court owes 

deference to the Board’s interpretation 

of its own jurisdiction under this 

particular regulation and instead believe 

such matters should properly be 

handled in due course on a case-by-case 

basis. See Chevron, 467 U.S. at 842–45. 

Several commenters asked the Board 

to amend 5 CFR 1201.56 to add a new 

subparagraph (e) addressing when an 

appellant is entitled to a jurisdictional 

hearing. A commenter also suggested 

that the MSPB include in the final rule 

a procedure under which the Board 

would not be required to hold an 

evidentiary hearing on matters on which 

an appellant bears the burden of proof 

when there is no genuine issue of 

material fact to be resolved. 

The Board believes that this proposed 

amendment is not necessary because the 

general definition of a nonfrivolous 

allegation in the proposed regulations 

and the show cause orders that 

administrative judges routinely issue in 

appeals tailored to a specific case are 

sufficient to inform an appellant of what 


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he or she will be required to do to 

obtain a jurisdictional hearing. 

A commenter suggested that the 

MSPB reconsider drafting section 

1201.5 from option C because in the 

commenter’s opinion option C more 

clearly identified matters that must be 

proven by preponderance of the 

evidence. 

The Board carefully considered the 

four options (A–D) and decided against 

incorporating the referenced language 

contained in option C because (a) such 

information is already communicated to 

appellants in show cause orders, and (b) 

the inclusion of the level of detail set 

forth in the referenced section of option 

C would require frequent updates to the 

Board’s regulations to reflect changes in 

the law and bind the Board to the 

contents of its regulations when the 

flexibility to reconsider past decisions is 

sometimes needed. 

A commenter identified the 

jurisdiction matrix produced by the 

MSPB regulations working group as a 

useful tool and proposed that the MSPB 

include this document in its regulations 

or on its Web site. 

The Board appreciates that the 

commenter found this table so useful 

and will undertake to maintain a similar 

document summarizing MSPB 

jurisdiction on the MSPB Web site. 

A commenter suggested that the 

Board should replace the term 

‘‘nonfrivolous allegation’’ with a term 

that, according to the commenter, could 

be more easily understood and which 

has the same meaning. 

While the Board understands the 

commenter’s concern, it believes that it 

would simply be impractical to change 

this well-established legal term at this 

stage. The term has been adopted in 

case law by both the Board and the U.S. 

Court of Appeals for the Federal Circuit. 

Moreover, revised 5 CFR 1201.4(s) 

provides a definition for this term that 

the Board expects will be easily 

understood by practitioners and 

appellants, including pro se appellants. 

A commenter suggested section 

1201.4(s) would be improved if the 

MSPB added examples of a ‘‘conclusory 

statement’’ and a statement that the 

MSPB would consider to be ‘‘more than 

conclusory.’’ 

The Board appreciates that examples 

are often an effective means of 

communicating legal concepts and so 

has included examples elsewhere in its 

regulations. However, at the present 

time, the Board believes it most 

appropriate to develop the meaning of 

these terms through case law and 

perhaps add examples to its regulations 

at a later date. 

A commenter criticized the proposed 

rule for failing to recognize that all 

MSPB appeals include ‘‘what’’ and 

‘‘who’’ jurisdictional elements that 

always require proof by preponderant 

evidence. 

This comment appears to recommend 

that the Board adopt a major structural 

element of option C, a potential 

approach to making jurisdictional 

determinations that was previously 

published on the Board’s Web site but 

that the Board Members chose not to 

propose in this rulemaking. The main 

structural element of option B, the 

approach that the Board has proposed 

(with minor modification), is to 

distinguish between categories of 

appeals that are covered by 5 U.S.C. 

7701 procedures and those that are not. 

Options B and C were formulated as 

comprehensive methods for making 

jurisdictional determinations, and the 

Board sees no compelling reason to 

import a major element of option C into 

option B. 

A commenter questioned whether the 

MSPB erred by failing to justify 

requiring nonfrivolous allegations of 

jurisdictional elements that are also 

merits issues in IRA, VEOA, USERRA, 

and other types of appeals. This 

commenter explained that requiring 

nonfrivolous allegations in such appeals 

was inappropriate where the relevant 

statutes provide that an individual who 

‘‘alleges,’’ ‘‘claims,’’ ‘‘believes,’’ or 

‘‘considers’’ that an agency acted in a 

particular way is entitled to appeal to 

the MSPB. Therefore, the commenter 

concluded that the Board’s requirement 

of raising nonfrivolous allegations to 

establish jurisdiction in these appeals 

would be found ‘‘not in accordance with 

law’’ under the Administrative 

Procedures Act (APA), 5 U.S.C. 

706(2)(A). 

The proposed revision in the 

regulations is primarily intended to 

accurately reflect current, controlling 

Board and court precedent for 

establishing MSPB’s jurisdiction in 

various types of appeals. We doubt that 

this precedent would be subject to 

collateral attack in an APA proceeding 

because it already has been subjected to 

years of court review. In addition, the 

Board carefully considered a 

comprehensive reform of our 

jurisdictional standards (options C and 

D) but concluded that introducing such 

changes in our standards would not be 

the best option to follow. 

A commenter expressed his 

preference for option C and noted his 

concern that the proposed rule 

improperly treated purely merits issues 

as jurisdictional issues and left 

undisturbed case law in which the 

MSPB and the U.S. Court of Appeals for 

the Federal Circuit improperly classified 

merits issues as jurisdictional 

requirements. 

The Board does not agree with the 

comment that the requirement of raising 

nonfrivolous allegations to establish 

jurisdiction in certain appeals would be 

found not in accordance with law. The 

Board has proposed revisions to its 

jurisdictional regulations to clarify the 

burdens on parties and to insure that the 

Board’s regulations are consistent with 

both statutes and case law. The Board is 

not revising its jurisdictional regulations 

for the purpose of reversing controlling 

precedent. Therefore, we agree that the 

regulations codify and endorse Board 

and U.S. Court of Appeals for the 

Federal Circuit precedent. The Board 

believes that such consistency and 

clarification are helpful to the parties it 

serves. Also, as noted earlier, the Board 

expects an administrative judge to 

provide notice to an appellant of the 

specific jurisdictional burdens raised in 

an appeal. 

A commenter stated that the proposed 

rule improperly treated the exhaustion 

requirement in IRA and VEOA appeals 

as a jurisdictional requirement. 

According to the commenter, U.S. 

Supreme Court precedent treats 

administrative exhaustion requirements 

that are ‘‘analogous to those in IRA and 

VEOA appeals’’ as ‘‘claim processing 

rules’’ and not jurisdictional 

requirements. The Supreme Court has 

never directly opined on the nature of 

administrative exhaustion requirements 

in the IRA or VEOA context. 

Furthermore, Yunus v. Department of 

Veterans Affairs, 242 F.3d 1367, 1371 

(Fed. Cir. 2001), an appellate court 

decision that is binding on the Board, 

squarely holds that exhaustion of the 

Office of Special Counsel (OSC) 

complaint process is a jurisdictional 

prerequisite to an IRA appeal. The 

Yunus decision is consistent with other 

appellate court decisions holding that 

filing of an administrative claim is a 

jurisdictional prerequisite to suing the 

government in tort, GAF Corp. v. United 

States, 818 F.2d 901, 904 (D.C. Cir. 

1987), in contract, Maropakis Carpentry, 

Inc. v. United States, 609 F.3d 1323, 

1327 (Fed. Cir. 2010), and for 

discrimination in employment, Hays v. 

Postmaster General, 868 F.2d 328, 330– 

31 (9th Cir. 1989). The Board is not 

persuaded that it is ‘‘improper’’ to treat 

the exhaustion requirement in IRA and 

VEOA appeals as jurisdictional 

prerequisites to filing such appeals. 

A commenter observed that the Board 

may not affirm any agency action or 

decision, including in IRA, VEOA, and 

USERRA appeals, where the agency 


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violated the appellant’s constitutional 

rights. 

The commenter does not cite any 

decision in which the Board has either 

considered or declined to consider a 

constitutional claim in an IRA, VEOA, 

or USERRA appeal. Moreover, the 

commenter does not point to any 

portion of the laws conferring 

jurisdiction over these three types of 

appeals that gives the Board the 

authority to consider constitutional 

claims. While it is true that in appeals 

governed by 5 U.S.C. 7701—i.e., appeals 

other than IRA, VEOA, and USERRA 

appeals—the Board will consider 

constitutional claims, in doing so the 

Board will identify the constitutional 

interest at stake as part of its analysis. 

For example, the Board will consider a 

claim that an agency removed an 

individual without affording him 

minimum due process in accordance 

with the Fifth Amendment, so long as 

the individual was the type of employee 

with a constitutionally-protected 

property interest in continued Federal 

employment. E.g., Clark v. U.S. Postal 

Service, 85 M.S.P.R. 162, ¶ 1 (2000). At 

least with respect to VEOA and 

USERRA appeals, it is not clear what 

constitutionally-protected interests 

might be implicated in the most 

frequently-arising fact patterns, where 

individuals seek to vindicate statutory 

interests such as the right to veterans’ 

preference in initial employment, the 

right to compete for employment, the 

right to reemployment following 

military duty, and the right to be free of 

discrimination in employment based on 

prior military service or a present 

obligation to perform such service. For 

these reasons, the Board believes that 

the basis and scope of its authority to 

adjudicate constitutional claims in IRA, 

VEOA, and USERRA appeals is best left 

to development in the case law. 

A commenter suggested that 1201.57 

should be amended to state with greater 

specificity the standards of proof for 

each of the appeals covered by that 

regulation. 

The Board has proposed the revisions 

to its jurisdictional regulations to insure 

that they are consistent with statutes, 

other regulations, and case law. The 

Board considered stating the specific 

standards or elements for establishing 

jurisdiction for each type of appeal in 

the revised regulations but ultimately 

concluded that the inclusion of this 

information may have the unintended 

effect of confusing the reader, especially 

a pro se appellant. In addition, the 

Board’s jurisdiction is a continually 

evolving concept. As a result, the Board 

also was concerned that the regulations 

would quickly become obsolete or 

inaccurate if specific standards for 

establishing jurisdiction in each type of 

appeal were provided in the regulations. 

Finally, as noted several times earlier, 

the Board expects administrative judges 

to provide notice to the appellant of the 

specific jurisdictional burdens raised in 

the appeal. 

A commenter recommended that 

section 1201.57(e) should be amended 

to require the jurisdictional notice to be 

issued as soon as practicable and to 

allow the parties additional time, if 

needed, to complete discovery before 

the jurisdictional question is resolved. 

The Board appreciates the 

commenter’s valid concern. As the 

commenter correctly notes, 

administrative judges typically do issue 

jurisdictional show cause orders as soon 

as practicable, often within weeks after 

an appeal is filed. However, in certain 

cases, new questions of jurisdiction 

materialize only after the parties file 

pleadings that highlight emerging 

issues. As a result, the Board believes 

that its practice is working well for most 

cases and that, as a rule, administrative 

judges usually issue jurisdictional 

notices at the appropriate time. As for 

the comment about allowing the parties 

additional time to complete discovery 

before the jurisdictional question is 

resolved, the Board believes, as stated 

earlier, that such matters are best left to 

the administrative judges’ discretion on 

a case-by-case basis. 

A commenter suggested that the 

Board should undertake additional 

study to determine whether its 

regulations should address any 

additional jurisdictional pleading 

requirements that may arise when 

matters are made appealable to the 

Board by OPM regulation, rather than by 

statute. 

The commenter notes that options C 

and D, previously posted on the Board’s 

Web site as potential approaches to 

jurisdictional determinations, contained 

detailed pleading requirements for some 

types of appeals authorized by OPM 

regulations. The Board is aware that 

case law sets forth specific substantive 

requirements for establishing 

jurisdiction over certain kinds of 

regulatory appeals, such as those 

brought by probationers or that 

challenge employment practices, that 

may not be applicable in other kinds of 

cases. All appeals authorized by OPM 

regulations are covered by 5 U.S.C. 

7701, however, and the purpose of the 

current rulemaking is to distinguish 

broadly between how jurisdiction is 

established in appeals that are covered 

by, and those that are not covered by, 

section 7701. Laying out substantive 

jurisdictional tests for different kinds of 

appeals within one of those categories is 

best left to developing case law. 

A commenter suggested that the 

Board reorder paragraphs (b) and (c) of 

1201.57 to reinforce the rule that the 

Board cannot bypass a jurisdictional 

question to reach the merits of a case. 

The Board agrees with this suggestion 

and will make the minor edit necessary 

by switching the order of the 

paragraphs. 

A commenter found the language in 

1201.57(c) was ambiguous where it 

states that the paragraph applies 

‘‘[e]xcept for matters described in 

subsections (b)(1) and (3) of this section 

above.’’ 

We agree and have amended this 

provision to make it clearer. 

A commenter proposed a revision of 

1201.57(c) on the grounds that an 

appellant should be required to make 

more than a nonfrivolous allegation that 

the appeal was timely filed and that the 

preponderance of the evidence standard 

should apply to timeliness issues. 

The Board believes that the current 

language in the regulations is 

appropriate and protects the rights of 

appellants to show by preponderant 

evidence that their appeals were timely 

filed or to establish good cause for an 

untimely filing, consistent with longestablished precedent. The current 

language also accurately reflects that, for 

an appellant to be entitled to a hearing 

on the timeliness issue, he or she must 

raise a nonfrivolous allegation that the 

appeal was timely filed. That said, the 

commenter correctly notes that 

timeliness and jurisdictional questions 

are not always inextricably intertwined 

and so administrative judges need to 

carefully review the record in such 

cases to provide the parties with the 

proper notice and determine if a hearing 

is warranted under the circumstances. 

A commenter asserted that the 

amendments to the Board’s regulations 

would increase the number of 

constructively discharged employees 

who are unsuccessful before the Board 

both on the merits and in establishing 

the MSPB’s jurisdiction. 

The Board does not agree. The 

regulatory revisions under discussion 

are certainly not intended to make it 

more difficult to establish jurisdiction or 

to prevail in a constructive adverse 

action appeal. Instead, the Board is 

attempting to codify principles in case 

law that are not fully reflected in the 

Board’s regulations. The commenter’s 

true concern appears to be that the 

Board’s ‘‘current practice’’ results in 

appellants not ‘‘winning when . . . they 

ought to’’ in constructive adverse action 

appeals. However, this rulemaking is 

not intended to work a fundamental 


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4494 Federal Register / Vol. 80, No. 18 / Wednesday, January 28, 2015 / Rules and Regulations 

change in the way the Board approaches 

such appeals. 

A commenter objected to Board’s use 

of the term ‘‘conclusory’’ as well as the 

Board’s definition of that term. 

The Board believes that the use of the 

term is clear to convey the idea that 

something is conclusory if it is an 

inference that has no proof but is stated 

nonetheless. In other words, something 

is conclusory if it consists of or relates 

to a conclusion or assertion for which 

no supporting evidence is offered. The 

definition of ‘‘conclusory’’ is easily 

obtained with an online search although 

the word may not be found in older or 

abridged dictionaries. Yet as the 

commenter correctly notes, recent 

editions of Blacks’ Law Dictionary 

define conclusory as ‘‘expressing a 

factual inference without stating the 

underlying facts on which the inference 

is based.’’ BLACK’S LAW DICTIONARY 

(7th ed. 1999); id. (8th ed. 2004); id. (9th 

ed. 2009). 

A commenter suggested that the 

Board should abandon trying to define 

what a nonfrivolous allegation is, and 

should instead decide jurisdiction the 

way Federal courts do. 

The commenter does not specify how 

he believes the Board is determining 

questions of jurisdiction differently than 

do Federal courts. Nonetheless, the 

commenter correctly observes that the 

Board is a tribunal of limited 

jurisdiction and so the Board believes 

that it is properly adjudicating 

jurisdictional issues that come before it, 

including determining if a nonfrivolous 

allegation has been raised. 

A commenter suggested that the 

Board should revise its definition of 

‘‘preponderance of the evidence’’ by 

adopting ‘‘the standard law dictionary 

definition.’’ 

The Board currently defines 

‘‘preponderance of the evidence’’ as 

‘‘[t]he degree of relevant evidence that a 

reasonable person, considering the 

record as a whole, would accept as 

sufficient to find that a contested fact is 

more likely to be true than untrue.’’ The 

proposed rule would move this 

definition from section 1201.56 to 

section 1201.4 but would leave the 

substance of the definition unchanged. 

Citing a law dictionary, the commenter 

suggests that the Board change the 

definition to ‘‘evidence which is more 

convincing than the evidence offered in 

opposition to it. It is [the] degree of 

proof which is more probable than not.’’ 

The commenter believes that the current 

definition creates confusion because it 

is framed in terms of what a ‘‘reasonable 

person’’ would find rather than what an 

administrative judge should find. 

The Board declines to adopt this 

suggestion. Over a period of decades, 

the Board’s primary reviewing court has 

cited and applied the Board’s definition 

of ‘‘preponderance of the evidence’’ 

without questioning its validity or 

clarity. E.g., Haebe v. Department of 

Justice, 288 F.3d 1288, 1302 (Fed. Cir. 

2002); Jackson v. Veterans 

Administration, 768 F.2d 1325, 1329 

(Fed. Cir. 1985). Changing the definition 

would allow parties to argue before the 

court that the new definition has a 

different meaning than the old one, and 

the Board would then need to convince 

the court that no change in meaning was 

intended. If the Board agreed with the 

commenter that the current definition 

creates confusion, then it might be 

worth the risk of having the court find 

that a revised definition has a new 

meaning, but the Board is not aware of 

widespread confusion over the wording 

of the current definition. 

In fact, the current definition of 

‘‘preponderance of the evidence’’ stands 

in clear contrast to the definition of 

‘‘substantial evidence.’’ The former 

definition focuses on what a reasonable 

person ‘‘would accept’’ as sufficient to 

prove a contested fact, whereas the 

latter focuses on what a reasonable 

person ‘‘might accept’’ as sufficient to 

prove a contested fact ‘‘even though 

other reasonable persons might 

disagree.’’ This clear contrast would be 

lost if the reference to a ‘‘reasonable 

person’’ were removed from the 

definition of ‘‘preponderance of the 

evidence’’ as the commenter suggests. 

A commenter stated that the Board 

lacks authority to issue 5 CFR 

1208.23(b) limiting the right to an 

evidentiary hearing to cases that are 

timely filed and within the Board’s 

jurisdiction. 

The commenter appears to object to 

the Board’s reference to 5 CFR 1208 if 

an individual would like additional 

information regarding VEOA or 

USERRA appeals. However, 5 CFR 1208 

is not a proposed rule and therefore is 

not subject to the notice and comment 

of the regulations at issue. Furthermore, 

the Board’s proposed regulations do not 

provide for summary judgment. It is 

well settled that a VEOA complainant 

does not have an unconditional right to 

a hearing before the Board, and a 

USERRA claimant is entitled to a 

hearing on the merits only upon 

establishing Board jurisdiction over his 

appeal. Downs v. Department of 

Veterans Affairs, 110 M.S.P.R. 139, 

¶¶ 17–18 (2008). The Board may decide 

a VEOA appeal on the merits without an 

evidentiary hearing only where there is 

no genuine dispute of material fact and 

one party must prevail as a matter of 

law. Jarrard v. Department of Justice, 

113 M.S.P.R. 502, 506 (2010). 

A commenter, citing Kirkendall v. 

Department of the Navy, 479 F.3d 830, 

834 (Fed. Cir. 2009), asserted that 5 

U.S.C. 7701 applies to VEOA appeals 

and questioned the Board’s citation to 

Goldberg v. Department of Homeland 

Security, 99 M.S.P.R. 660 (2005), for the 

proposition that the Board lacks 

jurisdiction to adjudicate an affirmative 

defense under 5 U.S.C. 7701(c)(2) in 

these appeals. 

After reviewing Kirkendall, Goldberg 

and related precedent, the Board 

remains convinced that it lacks 

jurisdiction over affirmative defenses in 

a VEOA or USERRA appeal. In 

particular, we note that the U.S. Court 

of Appeals for the Federal Circuit found 

in Kirkendall that the failure of Congress 

to specifically reference section 7701 in 

a statute, such as USERRA, 

demonstrates that it did not necessarily 

want all provisions of section 7701 to 

apply to the Board’s review of the claim. 

Furthermore, we note that the court has 

affirmed the Board’s interpretation of 

the VEOA statute. For instance, in a 

veterans’ preference case, which was 

decided on the merits, the court 

affirmed the Board’s finding that it did 

not have jurisdiction over the 

appellant’s affirmative defenses of 

discrimination and harmful procedural 

error. Graves v. Department of the Navy, 

451 F. App’x 931 (Fed. Cir. 2011). 

Accordingly, the Board declines to 

change its position that it lacks 

jurisdiction over affirmative defenses in 

a VEOA or USERRA appeal. 

A commenter asserted that the Board 

may not ‘‘overrule’’ section 1201.56 in 

VEOA appeals by adjudication because 

the Board lacks the delegated authority 

to do so. 

At the outset, the Board notes that it 

has the authority to review or modify its 

regulations. 5 U.S.C. 1204(h) and 

7701(k). 

The commenter, though, suggests that 

the Board tried to ‘‘overrule’’ 5 CFR 

1201.56 by adjudication in the cases of 

Donaldson v. Department of Homeland 

Security, 119 M.S.P.R. 489 (2013) 

(Table); Donaldson v. Department of 

Homeland Security, 119 M.S.P.R. 244 

(2013) (Table); Donaldson v. 

Department of Homeland Security, 118 

M.S.P.R. 219 (2012) (Table); Donaldson 

v. Department of Homeland Security, 

117 M.S.P.R. 609 (2012) (Table); 

Donaldson v. Department of Homeland 

Security, MSPB Docket No. DC–1221– 

12–0356–B–1 (Initial Decision, Jan. 9, 

2013); Donaldson v. Department of 

Homeland Security, MSPB Docket No. 

DC–300A–12–0619–I–1 (Initial 

Decision, Sep. 17, 2012); Donaldson v. 


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Federal Register / Vol. 80, No. 18 / Wednesday, January 28, 2015 / Rules and Regulations 4495 

Department of Homeland Security, 

MSPB Docket No. DC–1221–12–0356– 

W–1 (Initial Decision, June 28, 2012); 

Donaldson v. Department of Homeland 

Security, MSPB Docket No. DC–3330– 

11–0636–I–1 (Aug. 10, 2011); and 

Donaldson v. Department of Homeland 

Security, MSPB Docket No. DC–3330– 

11–0637–I–1 (July 29, 2011). 

According to the commenter, the 

Board’s decisions in Donaldson 

contravened the U.S. Court of Appeals 

for the Federal Circuit’s holding in 

Tunik v. Merit Systems Protection 

Board, 407 F.3d 1326 (Fed. Cir. 2005). 

The Board disagrees with the 

commenter’s characterization of what 

the Board did in the Donaldson cases. 

In any event, the U.S. Court of Appeals 

for the Federal Circuit repeatedly 

concluded that the Board correctly 

decided the Donaldson cases, including 

the jurisdictional determinations 

therein. See Donaldson v. Department 

of Homeland Security, 528 F. App’x 986 

(Fed. Cir. 2013) (Table) (the court 

affirmed the Board’s decision that the 

appellant was not entitled to relief 

under VEOA); Donaldson v. Merit 

Systems Protection Board, 527 F. App’x 

945 (Fed. Cir. 2013) (Table) (the court 

held that the Board correctly ruled that 

it lacked jurisdiction over the 

appellant’s whistleblower claim); 

Donaldson v. Department of Homeland 

Security, 495 F. App’x 53 (Fed. Cir. 

2012) (Table) (the court affirmed the 

Board’s decision that the agency did not 

violate USERRA and VEOA when it 

failed to select him for positions). 

Notwithstanding the Board’s holdings in 

the Donaldson appeals, the court in 

Tunik pointed out that there are 

‘‘numerous exceptions’’ to the notice 

and comment rulemaking requirements 

of 5 U.S.C. 553. Tunik, 407 F.3d at 

1341–45. In particular, the court in 

Tunik indicated that the Board is 

authorized to repeal a regulation 

through notice and comment 

procedures, which is exactly what the 

Board is doing here. Tunik, 407 F.3d at 

1345. The commenter appears to 

concede this point, when he notes that 

the Board is not precluded from 

repealing the regulation in accordance 

with section 553(b). 

A commenter questioned the validity 

of 5 CFR part 1208 and 1201.57 because 

these regulations allegedly inadequately 

protect veterans’ preference rights. 

The commenter asserts that Congress 

intended greater protection for 

preference-eligible veterans than the 

aforementioned regulations provide, but 

the commenter does not provide any 

examples. Again, the main purpose of 

this rulemaking is to make the Board’s 

regulations consistent with how the 

Board actually makes jurisdictional 

determinations, as explained in the case 

law. 

A commenter questioned why the 

Board had abandoned beneficial 

amendments proposed in 2012, such as 

allowing litigating parties to file reply 

briefs and steps to facilitate settlement. 

The amendments proposed by the 

Board in 2012 (77 FR 33663) were not 

abandoned. These proposed 

amendments were adopted in a final 

rule published later that year (77 FR 

62350). The final rule authorized the 

filing of reply briefs (5 CFR 1201.114(a)) 

and included steps to facilitate 

settlement (5 CFR 1201.28). 

A commenter objected to the Board’s 

proposal to limit the issues that may be 

raised in an IRA appeal. The commenter 

specifically objected to the fact that 

agencies no longer need to establish the 

justification for a personnel action in an 

IRA appeal. 

The Board does not agree with the 

commenter that the Board’s regulations 

ease an agency’s requirement to prove 

misconduct if an employee has first 

chosen to file with the OSC. The Board 

reminds the commenter that 5 U.S.C. 

1221 indicates that corrective action 

will not be ordered even if an individual 

establishes that he/she has disclosed 

that a protected disclosure was a 

contributing factor in a personnel 

action, if an agency demonstrates by 

clear and convincing evidence that it 

would have taken the same personnel 

action in the absence of the disclosure. 

The agency is thus still required to 

justify its personnel action. 

A commenter suggested that the 

Board move proposed paragraph 

1201.56(d) and 1201.57(e) to a newly 

created section ‘‘1201.41(d) Proof.’’ 

The Board considered merging into a 

single provision this requirement for 

administrative judges to provide the 

parties notice of the proof required as to 

the issues in each type of appeal. 

However, we ultimately determined that 

the parties, particularly pro se 

appellants, would be less likely to be 

confused if it were set forth separately 

in 1201.56 and 1201.57. 

A commenter argued that the term 

‘‘standing’’ in 1201.57(b)(3) was an 

inappropriate way to describe a 

jurisdictional element that must be 

established by a preponderance of the 

evidence. The commenter suggested that 

the term ‘‘coverage’’ would be more 

appropriate. 

As the commenter points out, under 

1201.57(b)(3), a party must prove, by 

preponderant evidence, that he or she 

‘‘[h]as standing to appeal’’ an action, but 

only ‘‘when disputed by the agency or 

questioned by the Board.’’ The 

regulation defines ‘‘standing’’ to mean 

that the individual ‘‘falls within the 

class of persons who may file an appeal 

under the law applicable to the appeal.’’ 

The Board believes that the term 

‘‘standing’’ under 1201.57(b)(3) is 

appropriate and consistent with court 

and Board precedent. Standing is a 

threshold requirement that implicates 

jurisdiction and is ‘‘‘perhaps the most 

important’ condition for a justiciable 

claim.’’ Allen v. Wright, 468 U.S. 737, 

750 (1984). Therefore, the question of 

standing is a preliminary issue that may 

be raised by the agency or the Board, to 

be explored as part of the Board’s 

inquiry into whether it has jurisdiction 

over a case. Silva, 112 M.S.P.R. 362, ¶ 6 

& n.2 

A commenter expressed a concern 

that the Board’s regulations and case 

law will impair the ability of appellants 

in IRA appeals to establish jurisdiction 

by requiring the production of 

documents, such as an OSC decision to 

terminate its investigation, to satisfy the 

OSC exhaustion requirement. This 

commenter noted that 5 U.S.C. 

1221(f)(2) states that OSC’s decision to 

terminate its investigation may not be 

considered in an IRA appeal. 

The commenter does not actually 

seem to take issue with any portion of 

the proposed regulations. Instead, the 

commenter’s true concern is that the 

Board has changed the test for OSC 

exhaustion in recent Board precedent. 

The Board believes that such matters are 

best addressed in developing case law. 

A commenter suggested that 

information concerning the degree and 

burden of proof borne by the appellant 

should come exclusively from the 

administrative judge and the Board 

should overturn case law that allows 

such advice to be exclusively 

communicated to an appellant in an 

agency’s motion to dismiss. 

It is well-settled that an 

administrative judge’s failure to provide 

proper notice, as required by Burgess, 

758 F.2d at 643–44, can be cured if the 

agency’s pleadings contain the notice 

that was lacking in the 

acknowledgement order or if the initial 

decision itself puts the appellant on 

notice of what to do to establish 

jurisdiction, thus affording the appellant 

with the opportunity to meet the 

jurisdictional burden in a petition for 

review. The Board believes that 

restricting notice to that which is 

provided in the acknowledgement order 

would unfairly limit the opportunity to 

later clarify matters that are complicated 

or unclear when first filed during the 

processing of an appeal. 


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4496 Federal Register / Vol. 80, No. 18 / Wednesday, January 28, 2015 / Rules and Regulations 

List of Subjects in 5 CFR Part 1201 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, the Board amends 5 

CFR part 1201 as follows: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 1. The authority citation for 5 CFR 

part 1201 continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

■ 2. In § 1201.4, add paragraphs (p), (q), 

(r), and (s) to read as follows: 

§ 1201.4 General definitions. 

* * * * * 

(p) Substantial evidence. The degree 

of relevant evidence that a reasonable 

person, considering the record as a 

whole, might accept as adequate to 

support a conclusion, even though other 

reasonable persons might disagree. This 

is a lower standard of proof than 

preponderance of the evidence. 

(q) Preponderance of the evidence. 

The degree of relevant evidence that a 

reasonable person, considering the 

record as a whole, would accept as 

sufficient to find that a contested fact is 

more likely to be true than untrue. 

(r) Harmful error. Error by the agency 

in the application of its procedures that 

is likely to have caused the agency to 

reach a conclusion different from the 

one it would have reached in the 

absence or cure of the error. The burden 

is upon the appellant to show that the 

error was harmful, i.e., that it caused 

substantial harm or prejudice to his or 

her rights. 

(s) Nonfrivolous allegation. A 

nonfrivolous allegation is an assertion 

that, if proven, could establish the 

matter at issue. An allegation generally 

will be considered nonfrivolous when, 

under oath or penalty of perjury, an 

individual makes an allegation that: 

(1) Is more than conclusory; 

(2) Is plausible on its face; and 

(3) Is material to the legal issues in the 

appeal. 

■ 3. Revise § 1201.56 to read as follows: 

§ 1201.56 Burden and degree of proof. 

(a) Applicability. This section does 

not apply to the following types of 

appeals which are covered by § 1201.57: 

(1) An individual right of action 

appeal under the Whistleblower 

Protection Act, 5 U.S.C. 1221; 

(2) An appeal under the Veterans 

Employment Opportunities Act, 5 

U.S.C. 3330a(d); 

(3) An appeal under the Uniformed 

Services Employment and 

Reemployment Rights Act, 38 U.S.C. 

4324, in which the appellant alleges 

discrimination or retaliation in violation 

of 38 U.S.C. 4311; and 

(4) An appeal under 5 CFR 353.304, 

in which the appellant alleges a failure 

to restore, improper restoration of, or 

failure to return following a leave of 

absence. 

(b) Burden and degree of proof—(1) 

Agency. Under 5 U.S.C. 7701(c)(1), and 

subject to the exceptions stated in 

paragraph (c) of this section, the agency 

bears the burden of proof and its action 

must be sustained only if: 

(i) It is brought under 5 U.S.C. 4303 

or 5 U.S.C. 5335 and is supported by 

substantial evidence (as defined in 

§ 1201.4(p)); or 

(ii) It is brought under any other 

provision of law or regulation and is 

supported by a preponderance of the 

evidence (as defined in § 1201.4(q)). 

(2) Appellant. (i) The appellant has 

the burden of proof, by a preponderance 

of the evidence (as defined in 

§ 1201.4(q)), with respect to: 

(A) Issues of jurisdiction, except for 

cases in which the appellant asserts a 

violation of his right to reemployment 

following military duty under 38 U.S.C. 

4312–4314; 

(B) The timeliness of the appeal; and 

(C) Affirmative defenses. 

(ii) In appeals from reconsideration 

decisions of the Office of Personnel 

Management (OPM) involving 

retirement benefits, if the appellant filed 

the application, the appellant has the 

burden of proving, by a preponderance 

of the evidence (as defined in 

§ 1201.4(q)), entitlement to the benefits. 

Where OPM proves by preponderant 

evidence an overpayment of benefits, an 

appellant may prove, by substantial 

evidence (as defined in § 1201.4(p)), 

eligibility for waiver or adjustment. 

(c) Affirmative defenses of the 

appellant. Under 5 U.S.C. 7701(c)(2), 

the Board is required to reverse the 

action of the agency, even where the 

agency has met the evidentiary standard 

stated in paragraph (b) of this section, if 

the appellant: 

(1) Shows harmful error in the 

application of the agency’s procedures 

in arriving at its decision (as defined in 

§ 1201.4(r)); 

(2) Shows that the decision was based 

on any prohibited personnel practice 

described in 5 U.S.C. 2302(b); or 

(3) Shows that the decision was not in 

accordance with law. 

(d) Administrative judge. The 

administrative judge will inform the 

parties of the proof required as to the 

issues of jurisdiction, the timeliness of 

the appeal, and affirmative defenses. 

§§ 1201.57 and 1201.58 [Redesignated as 

§§ 1201.58 and 1201.59] 

■ 4. Redesignate §§ 1201.57 and 1201.58 

as §§ 1201.58 and 1201.59, respectively. 

■ 5. Add new § 1201.57 to read as 

follows: 

§ 1201.57 Establishing jurisdiction in 

appeals not covered by § 1201.56; burden 

and degree of proof; scope of review. 

(a) Applicability. This section applies 

to the following types of appeals: 

(1) An individual right of action (IRA) 

appeal under the Whistleblower 

Protection Act, 5 U.S.C. 1221; 

(2) A request for corrective action 

under the Veterans Employment 

Opportunities Act (VEOA), 5 U.S.C. 

3330a(d); 

(3) A request for corrective action 

under the Uniformed Services 

Employment and Reemployment Rights 

Act (USERRA), 38 U.S.C. 4324, in which 

the appellant alleges discrimination or 

retaliation in violation of 38 U.S.C. 

4311; and 

(4) An appeal under 5 CFR 353.304, 

in which an appellant alleges a failure 

to restore, improper restoration of, or 

failure to return following a leave of 

absence (denial of restoration appeal). 

(b) Matters that must be supported by 

nonfrivolous allegations. Except for 

proving exhaustion of a required 

statutory complaint process and 

standing to appeal (paragraphs (c)(1) 

and (3) of this section), in order to 

establish jurisdiction, an appellant who 

initiates an appeal covered by this 

section must make nonfrivolous 

allegations (as defined in § 1201.4(s)) 

with regard to the substantive 

jurisdictional elements applicable to the 

particular type of appeal he or she has 

initiated. 

(c) Matters that must be proven by a 

preponderance of the evidence. An 

appellant who initiates an appeal 

covered by this section has the burden 

of proof, by a preponderance of the 

evidence (as defined in § 1201.4(q)), on 

the following matters: 

(1) When applicable, exhaustion of a 

statutory complaint process that is 

preliminary to an appeal to the Board; 

(2) Timeliness of an appeal under 5 

CFR 1201.22; 

(3) Standing to appeal, when disputed 

by the agency or questioned by the 

Board. (An appellant has ‘‘standing’’ 

when he or she falls within the class of 

persons who may file an appeal under 

the law applicable to the appeal.); and 

(4) The merits of an appeal, if the 

appeal is within the Board’s jurisdiction 

and was timely filed. 

(d) Scope of the appeal. Appeals 

covered by this section are limited in 

scope. With the exception of denial of 


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Federal Register / Vol. 80, No. 18 / Wednesday, January 28, 2015 / Rules and Regulations 4497 

restoration appeals, the Board will not 

consider matters described at 5 U.S.C. 

7701(c)(2) in an appeal covered by this 

section. 

(e) Notice of jurisdictional, timeliness, 

and merits elements. The administrative 

judge will provide notice to the parties 

of the specific jurisdictional, timeliness, 

and merits elements that apply in a 

particular appeal. 

(f) Additional information. For 

additional information on IRA appeals, 

the reader should consult 5 CFR part 

1209. For additional information on 

VEOA appeals, the reader should 

consult 5 CFR part 1208, subparts A & 

C. For additional information on 

USERRA appeals, the reader should 

consult 5 CFR part 1208, subparts A and 

B. 

(g) For additional information on 

denial of restoration appeals, the reader 

should consult 5 CFR part 353, subparts 

A and C. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2015–01575 Filed 1–27–15; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2014–0905] 

RIN 1625–AA08 

Special Local Regulation; Bradenton 

Area Riverwalk Regatta; Manatee 

River, Bradenton, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing a special local regulation on 

the waters of the Manatee River in 

Bradenton, Florida, during the 

Bradenton Area Riverwalk Regatta. The 

event is scheduled to take place 

annually from 11 a.m. to 7:30 p.m. on 

the first Saturday of February. The 

special local regulation is necessary to 

protect the safety of race participants, 

participant vessels, spectators, and the 

general public on the navigable waters 

of the United States during the event. 

The special local regulation will restrict 

vessel traffic in the waters of the 

Manatee River in the vicinity of 

Bradenton, Florida. It will establish the 

following two areas: Enforcement areas 

#1 and #2, where all persons and 

vessels, except those persons and 

vessels participating in the high speed 

boat races and those vessels enforcing 

the areas, are prohibited from entering, 

transiting through, anchoring in, or 

remaining within. 

DATES: This rule is effective February 1, 

2015. This rule will be enforced 

annually on the first Saturday of 

February from 11 a.m. to 7:30 p.m. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket USCG– 

2014–0905. To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Marine Science Technician First 

Class Hector I. Fuentes, Sector Saint 

Petersburg Waterways Management 

Branch, U.S. Coast Guard; telephone 

(813) 228–2191, email 

Hector.I.Fuentes@uscg.mil. If you have 

questions on viewing or submitting 

material to the docket, call Barbara 

Hairston, Program Manager, Docket 

Operations, telephone (202) 366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

A. Regulatory History and Information 

The Coast Guard is establishing this 

Special Local Regulation on the waters 

of the Gulf of Mexico in the vicinity of 

Manatee River, Florida during the 

Bradenton Riverwalk Regatta. On 

November 26, 2014, the Coast Guard 

published a notice proposing this final 

rule. No comments were received. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. The Coast Guard finds that 

good cause exists for making this rule 

effective less than 30 days after 

publication in the Federal Register 

because immediate action is needed to 

minimize potential danger to the public 

during this event and the rule will have 

minimal impact on the public and 

waterway users. The comment period 

on this rule ended on December 26, 

2014 and the Coast Guard did not have 

sufficient time to publish notice of this 

rule. This event has been well 

publicized by the City of Bradenton and 

local media outlets. Any delay in the 

effective date of this rule would be 

contrary to the public interest because 

this rule is needed to minimize 

potential danger to the public during the 

Bradenton Riverwalk Regatta and 

fireworks display. 

B. Basis and Purpose 

The legal basis for the rule is the 

Coast Guard’s authority to establish 

special local regulations: 33 U.S.C. 

1233. 

The purpose of the rule is to provide 

for the safety of life on navigable waters 

of the United States during the 

Bradenton Riverwalk Regatta. 

C. Comments and Changes to the Final 

Rule 

The Coast Guard received no 

comments related to this event during 

the comment period. This rule makes 

one change to the proposed regulation. 

In the NPRM, the special local 

regulation exclusion areas would be 

enforced from 11:00 a.m. to 4:30 p.m. 

However, the Bradenton Riverwalk 

Regatta includes a fireworks display. To 

ensure the safety of race participants, 

participant vessels, spectators, and the 

general public on the navigable waters 

of the United States during the 

fireworks display, the Coast Guard is 

extending the enforcement period for 

the special local regulation until 7:30 

p.m. Because the fireworks display will 

take place in the race area, the 

geographic area of the proposed 

enforcement zones remains unchanged 

in this rule. Additional notice and 

opportunity to comment on this change 

is unnecessary because extending the 

enforcement period a few hours is a 

logical outgrowth of the the NPRM. The 

fireworks display has always been part 

of the schedule of events, publicized by 

the City of Bradenton and local media. 

Furthermore, the additional impact of 

the extended enforcement period is 

minimal. The enforcement areas will be 

restricted for three extra hours once per 

year. 

D. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes or 

executive orders. 

1. Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 


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