Phillip R. Kete 

Attorney at Law 

Phil@KeteLaborLaw.com 

Admitted to Practice Law in Maryland and the District of Columbia 

phone(202) 587-5757 fax (202) 587-5610 

December 9, 2013 

Mr. William D. Spencer 

Clerk of the Merit Systems 

Protection Board 

By email: mspb@mspb.gov 

Dear Mr. Spencer" 

First, let me thank the board for taking this initiative. 

I have been practicing before the board for decades, and 

its treatment of jurisdictional issues has been extremely 

frustrating. 

With respect, however, I do not believe the options 

prepared by staff solve the problem. 

A. THE BOARD SHOULD FOLLOW THE FEDERAL JUDICIARY'S 

PRACTICE REGARDING JURISDICTIONAL ISSUES, AND DISCARD 

THE CONCEPT OF "NON-FRIVOLOUS" ALLEGATIONS. 

The board should keep in mind that it is not the first 

tribunal whose jurisdiction is not plenary, and which must, 

in every case, assure itself that it has jurisdiction 

before ruling on the merits of a case. The federal 

judiciary has been doing this since 1789. 

The solution adopted by the judiciary works far more 

efficiently than the process that is used by the board and 

which the various options would retain in one way or 

another. The judiciary's policy is based on the simple 

premise that the court always has jurisdiction to determine 

its own jurisdiction, and taking a case on this basis does 

not prejudice the board or the other party. 

Anyone with a filing fee can file a suit in federal court 

any time he wants. The court will, however, quickly 

dismiss the case if the complaint does not allege facts 

8183 Windward Key Drive Chesapeake Beach, MD 20732 
which, if true, would bring the case within the court's 

jurisdiction. If the court itself does not immediately 

notice the deficiencies, the defendant will as soon as it 

is served and will immediately move to dismiss. 

However, the burden on the plaintiff at the complaint stage 

is merely to make the necessary allegations. The federal 

courts do not have to make some sort of preliminary 

analysis of whether the allegations are frivolous or nonfrivolous; neither should the board. 

Thus, in board cases, once the necessary allegations have 

been made, the next steps would depend on the nature of the 

case. Surely, in the overwhelming majority of the cases if 

the jurisdictional facts are questionable, the agency will 

be ready, willing, and able to quickly present evidence 

contradicting the allegations. The judge can then give the 

appellant ~ reasonable amount of time to submit countering 

evidence. If the appellant fails to do so, the case is 

dismissed. If the appellant submits sufficient evidence, 

there is a hearing (after adequate opportunity for 

discovery), and a decision on jurisdiction. If the judge 

finds a lack of jurisdiction, the case is dismissed. If 

there is jurisdiction, the case is set for discovery and 

hearing on the merits (unless the ruling on jurisdiction 

requires judgment for the appellant on the merits). 

This process eliminates the step of determining whether 

jurisdictional allegations are frivolous or non-frivolous. 

It would also relieve the board of the embarrassment of 

trying to define "nonfrivolous.n 

Dealing with jurisdiction as the judiciary does would 

change the use of the valuable distinction which option 3 

makes between truly jurisdictional requirements, on the one 

hand, and claims processing rules, on the other. In order 

to give the board jurisdiction to determine its 

jurisdiction in the case, the appeal would have to (a) 

allege the jurisdictional facts and (b) either allege 

compliance with the claims processing rules or allege 

reasons that the failure to comply with those rules should 

be excused. 

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B. THE BOARD SHOULD NOT VIOLATE THE LAW BARRING USE OF 

SUMMARY JUDGMENT. 

I was counsel for the petitioner in Crispin v. Dept. of 

Commerce, 732 F.2d 9169(Fed.Cir. 1984), which held that 5 

U.S.C. § 7701(a) (1) denied the board the authority to grant 

summary judgment to agencies. If, as is suggested in 

option 3, the board has in practice been defying Crispin 

for years, the board should repudiate this misconduct, not 

codify it. 

C. THE BOARD SHOULD NOT RETAIN THE ERRONEOUS DEFINITION 

OF "PREPONDERANCE OF THE EVIDENCE." 

I am attaching a copy of the submission made to the board 

by AFGE Local 1923 in response to the June 2012 proposed 

rule. The submission points out that because the existing 

definition of "preponderance of the evidence" is different 

from the one used in all other areas of United States 

jurisprudence, it is misleading and confusing. 

All of the options propose to retain the erroneous 

definition and require parties to prove their cases 

according to it. Unless the Local 1923 analysis is 

mistaken, there is no good reason for insisting on using a 

definition which every attorney in the country knows is 

dead wrong. The board should take this opportunity to 

conform its use of the phrase to that which is used 

throughout the rest of the legal system in the U.S. 

D. THE BOARD SHOULD PROPERLY DEFINE THE BURDEN OF PROOF 

FOR THE AGENCY'S USE OF PART 351. 

Except where the conditions for use of 5 U.S.C. Chapter 43 

are established, an agency may not remove or demote an 

employee for allegedly poor performance unless it proves 

its case by a preponderance of the evidence. If Chapter 43 

can be used, however, then even if the board finds that the 

preponderance of the evidence shows that the employee met 

all the applicable standards, it must rule against the 

employee as long as the agency's erroneous contention to 

the contrary is supported by substantial evidence. 

As explained in Local 1923's July 2012 submission, Chapter 

43 cannot be used unless (a) the agency has a performance 

appraisal system that meets all the requirement of § 4302 

and (b) OPM has reviewed the system and itself has 

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determined that the system meets all the § 4302 

requirements. However the board's practice, not mentioned 

in its rules, is to allow Chapter 43 to be used even when 

the board finds by a preponderance of the evidence that the 

agency's system does not meet the§ 4302 standards or OPM 

has not determined that the system meets those 

requirements. This is accomplished by holding that chapter 

43 can be used as long as substantial evidence supports the 

agency's false contention that the conditions for its use 

are met. 

The board should remedy this by adopting a rule stating 

that in a Chapter 43 case the agency has the burden of 

proving, by a preponderance of the evidence, that the 

employee was covered by a performance appraisal system 

which meets each requirement of § 4302 and which OPM has 

determined meets each of those requirements. 

Respectfully submitted, 

Phillip 

f~~fdt R. Kete 

Attorney at Law 

8183 Windward Key Dr. 

Chesapeake Beach, MD 20732 

(202) 587-5757 

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PETITION FOR RULEMAKING BY AFGE LOCAL 1923 

OR, IN THE ALTERNATIVE, 

COMMENTS BY AFGE LOCAL 1923 ON THE JUNE 7, 2012 

PROPOSED RULE 

By its June 7, 2012, Federal Register notice, ~The 

MSPB also invites additional comments on any other aspect 

of MSPB's adjudicatory regulations that commenters believe 

should be amended." 1 

Local 1923 represents over 30,000 employees in seven 

agencies around the country. It, therefore, has a strong 

stake in the MSPB's effective operations and fair 

adjudications. 

In general, Local 1923 supports the comments earlier 

submitted by the Metropolitan Washington Employment Lawyers 

Association, as well as those submitted by the Maryland 

Employment Lawyers Association in response to the June 7 

notice. However, Local 1923 believes two changes should be 

made which have not previously been addressed. These would 

be amendments to 5 C.F.R. § 1201.56. 

77 FR 33663. 

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A. A CORRECT DEFINITION OF "PREPONDERANCE OF THE 

EVIDENCE" SHOULD REPLACE THE CURRENT ONE. 

The current definition of "preponderance of the 

evidence" in§ 1201.56(c) (2) is not only flatly wrong, but 

it creates the misimpression that the trier-of-fact's 

responsibility is something other than determining on which 

side of a factual dispute the evidence preponderates: 2 

(2) 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. 

This language suggests that for some reason the 

administrative judge should be concerned with determining 

whether some other reasonable person would (could?) decide 

that the evidence is sufficient to find that a contested 

fact is more likely to be true than untrue. 

Thus, the current definition says that the judge, 

faced with conflicting evidence as to whether an employee 

slugged his supervisor or not, asks whether a reasonable 

person would conclude that the employee did the deed and 

also asks whether a different reasonable person would 

conclude the employee did not do so. The definition does 

not suggest what the judge himself or herself should find. 

5 C.F.R. § 1201.56(c). 

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If, alternatively, the current definition means that 

the judge must determine whether every reasonable person 

would conclude that the employee did what he or she is 

charged with, then the standard is actually that of beyond 

a reasonable doubt. That might be favorable to employees, 

but it is not what the statute says. 

There is no reason for creating this confusion. 

There can be no dispute that "preponderance of the 

evidence" simply means "evidence which is of greater weight 

or more convincing than the evidence offered in opposition 

to it. It is that degree of proof which is more 

probable than not." 3 In a run-of-the-mill discipline case, 

the question to the board judge is whether it is more 

likely that the employee slugged his supervisor than that 

he did not slug his supervisor. The judge must directly 

weigh the evidence and decide on which side it 

preponderates. 

The board should, therefore, substitute the standard 

law dictionary definition of "preponderance of the 

evidence" for the current erroneous and misleading language. 

Black's Law Dictionary 1182 (6th Ed. 1991). 

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B. QUESTIONS OF WHETHER AN AGENCY HAS MET THE 

PREREQUISITES FOR USE OF 5 U.S.C. CHAPTER 43 MUST BE 

RESOLVED ON THE BASIS OF THE PREPONDERANCE OF THE 

EVIDENCE. 

An agency cannot fire or demote an employee under § 

4303 unless (a) it has a performance appraisal system which 

at least facially meets all the requirements of § 4302; and 

(b) OPM has determined that the system meets those 

requirements. 

Regarding meeting the requirements of § 4302, Wells v. 

Harris, stated that: 4 

Analysis of § 4303 demonstrates that it is 

premised on the operation of a performance 

appraisal system meeting all the requirements of 

§ 4302. 

* * * 

§ 4303(a) authorizes actions under that 

section only against employees for failure to 

meet performance standards which have been 

established as part of § 4302 performance 

appraisal systems. This would mean that a 

removal or demotion for failure to meet standards 

not so established cannot be an action for 

"unacceptable performance" as defined in § 4301(3) 

and, therefore, is not an action authorized by § 

4303(a). 

Thus, the first step in any § 4303 case is production 

of a description of the agency's performance appraisal 

system; the second step is determining whether, at least 

1 MSPR 208, 227, 229 (1979). 

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on its face, it provides for meeting each of the § 4302 

requirements. Those include, for example, that the system 

provide for recognizing and rewarding employees whose 

performance so warrants, 5 and that the system provide for 

establishing performance standards which will, to the 

maximum extent feasible, permit the accurate evaluation of 

job performance on the basis of objective criteria related 

to the job in question. 6 

Distinct from the question of whether the agency's 

system actually meets the § 4302 requirements is whether 

OPM has, under § 4304, found that the system does so. Thus, 

for example, an agency might have an appraisal system which 

meets all the § 4302 requirements and which has in fact 

been approved by OPM under § 4304 as meeting those 

requirements. If the agency then_ makes significant changes 

to the appraisal system, it may not use the modified system 

until and unless the system has been reviewed and approved 

under§ 4304. 7 That, of course, is a different question 

from whether the modified system in fact still does meet 

all the § 4302 requirements. 

If these conditions are met, the agency prevails even 

if the tribunal determines that the preponderance of the 

5 u.s.c. § 4302(b)(4). 

5 u.s.c. § 4302(b) (1). 

Adamsen v. Dept. of Agriculture, 563 F.3d 1326, 1331-33 (Fed.Cir. 

2009); on remand, 116 MSPR 331, 342 (2011). 

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evidence shows that the employee met his or her performance 

standards, as long as the agency's erroneous claims to the 

contrary are supported by substantial evidence. 8 If the 

conditions are not met, the agency is free to fire or 

demote the employee under § 7512, which means proving, by a 

preponderance of the evidence, that the action serves the 

efficiency of the service. 9 

However, in Griffin v. Dept. of Army, the board 

adopted a rule with the effect that an agency can fire an 

employee under 5 U.S.C. § 4303 even if the trier-of-fact 

finds that the preponderance of the evidence establishes 

that the agency's appraisal system had not been approved by 

OPM under § 4304, as long as there is substantial evidence 

to support the erroneous conclusion that there was 

approval. The board did this by holding that the agency 

has the burden of proving that the conditions for using § 

4303 have been met, but that the quantum of proof is 

substantial evidence. 10 

This holding is wrong for two reasons. First, 5 U.S.C. 

§ 7701(c) (1) (A) creates a limited, unusual (and possibly 

unconstitutional) exception to the rule that public 

employees can be deprived of their property interest in 

5 U.S.C. § 7701 (c) (1) (A). 9 Lovshin v. Dept. of Navy, 767 F.2d 826, 842 (Fed. Cir. 1985) (en bane). 10 23 MSPR 657, 663 (1984). 

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continued employment only on proof of a legitimate reason 

for the deprivation. The exception is limited to cases 

brought under § 4303. 

Section 7701(c) (1) was adopted as part of the Civil 

Service Reform Act in response to management claims that 

experience in performance discharge and demotion cases 

showed was too difficult to prove, by a preponderance of 

the evidence, that the adverse action would serve the 

efficiency of the service. Congress decided that if, but 

only if, certain conditions were met, the MSPB must 

substantially defer to the judgment of the employing agency 

on questions of the adequacy the employee performance. 

This deference as to the adequacy of the performance in a 

particular case cannot logically extend to deference to the 

judgment of the employing agency on the question of whether 

the agency can use § 4403 in the first place. 

Until the agency proves that it is entitled to use § 

4303, i.e., until it proves that there has been OPM 

approval of the agency's current appraisal system under§ 

4304 and that the system meets each requirement of § 4302, 

the agency cannot ask that its actions be upheld on the 

basis of substantial evidence. Stated otherwise, the 

agency must prove the existence of the preconditions to use 

of § 4303 the way all other facts are found to exist 

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(absent a statutory exception), by the preponderance of the 

evidence. 

Secondly, § 7701 (c) (1) is made subject to § 7701 (c) (2), 

and§ 770a(c) (2) begins, "Notwithstanding paragraph (1) ." 

Paragraph (2) states that an agency's decision may not be 

sustained if the employee "shows that the decisions was 

based on any prohibited personnel practice described in 

section 2302(b) of this title." That formulation 

necessarily means that anything in paragraph (2) trumps 

everything in paragraph (a) .

11 

Firing employees under § 4303 absent an appraisal 

system established under § 4302 (presumably including 

obtaining OPM § 4304 review) is a prohibited personnel 

practice. 12 The decision in Griffin unlawfully denies the 

appellant her statutory right to prove, by a preponderance 

of the evidence, that this type of prohibited personnel 

practice has been committed. 

The use of rule-making to correct the error in Griffin 

rather than to wait for an appropriate case in which to reexamine the issue is particularly appropriate. As the 

board no doubt recalls, in Salmon v. SSA13 an employee in 

the Local 1923 bargaining unit specifically raised this 

11 AFGE Local 2782 v. FLRA, 702 F.2d 1183, 1185-86 (D.C.Cir. 1983). 

12 Wells, 1 MSPR at 243, 248. 13 116 MSPR 86 (2010), aff'd 663 F.3rct 1378(Fed.Cir. 2012), pet. for 

cert. pending. 

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issue in her petition for review. The final board decision 

literally treated the argument as unworthy of notice. That 

perhaps reflects a board determination that the issue could 

better be addressed through rule-making. 

CONCLUSION 

The Board should, in a manner consistent with the 

Administrative Procedures Act, amend its rules as suggested 

above. 

Respectfully submitted, 

Phillip R. Kete 

Attorney at Law 

1425 K Street, N.W. 

Suite 350 

Washington, D.C. 20005 

(202) 587-5757 

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Respectfully submitted, 

~ 

f p?~ 0-r-ft~ (/P'-1---) 

Thomas Gagliardo 

General Counsel 

AFGE Local 1923 

1720 Operations Bldg 

Mail Stop 1-G-15 Operations Building 

6401 Security Blvd 

Baltimore, MD 21235 

(410) 965-6500 

Attorney at Law 

1425 K Street, N.W. 

Suite 350 

Washington, D.C. 20005 

(202) 587-57 57 

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