December 6, 2013

VIA Email to mspb@mspb.gov

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street NW

Washington, DC 20419

Re: Response to Solicitation of Public Comments, 78 Fed.Reg. 67,076-67,077

Dear Mr. Spencer:

The National Employment Lawyers Association (NELA) respectfully submits the following 

comments in response to the Merit Systems Protection Board’s Solicitation of Public Comments, 

published in the Federal Register on November 8, 2013, 78 Fed.Reg. 67,076-67,077. NELA is 

the largest professional membership organization in the country comprising lawyers who 

represent employees in labor, employment, wage and hour, and civil rights disputes. NELA 

advances employee rights and serves lawyers who advocate for equality and justice in the 

American workplace. NELA and its 68 circuit, state and local affiliates have a membership of 

over 3,000 attorneys who are committed to working on behalf of those who have been illegally 

treated in the workplace. To ensure that the rights of working people are protected, NELA has 

filed numerous amicus curiae briefs before the United States Supreme Court and other federal 

appellate courts regarding the proper interpretation of federal civil rights and worker protection 

laws, as well as undertaking other advocacy actions on behalf of workers throughout the United 

States. A substantial number of NELA members’ clients are federal employees and/or represent 

federal employees in employment law matters, and thus we have an interest in the modifications 

to MSPB’s procedural regulations.

NELA appreciates the opportunity to comment on the proposals for additional modifications to 

the Board’s procedural regulations. As a general matter, NELA has supported the Board’s recent 

efforts of continuing reevaluation of internal processes in the interest of improving operations 

and the adjudication of appeals. We do not believe, however, that this particular proposed 

modification is necessary, and thus urge the Board to reject the working group’s Options A, B C 

and D. To the contrary, based on our members’ experiences in representing appellants before the 

Board, NELA strongly believes that some of the working group’s proposed changes are likely to 

prove deleterious to the federal sector appeals process. 

At present, the jurisdictional standards for establishing a non-frivolous allegation are well 

defined in case precedent of the Board and of the U.S. Court of Appeals for the Federal Circuit—

and indeed long predate the Civil Service Reform Act of 1978. See, e.g., Stokes v. Federal 

Aviation Administration, 761 F.2d 682, 685-86 (Fed.Cir. 1985) (citing Ralston Steel Corp. v. 

United States, 340 F.2d 663, 169 Ct.Cl. 119 (1965), which in turn cites cases, including Supreme 

Court precedent, dating back to 1906). The non-frivolous allegation standard is a well-
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established creature of the common law, and so NELA sees no special benefit—and instead a 

risk of harm—in trying to restate that common law concept in the Code of Federal Regulations. 

The Board already tasks its administrative judges with advising pro se appellants of their 

jurisdictional burdens and has done so for many years; that burden would not be reduced, as 

administrative judges would still have to provide just as much explanation to pro se appellants of 

the regulation as they have for the related precedent. Further, NELA is concerned as to whether 

the Board would be able to make any modification to the “non-frivolous allegation” standard, 

even by regulation, because the “non-frivolous allegation” precedent is based on the binding 

precedent from the Federal Circuit’s review of the statutes and OPM regulations which grant the 

Board jurisdiction (and not of Board regulation). See, e.g., Stokes, 761 F.2d at 685-86 

(interpreting OPM regulation granting Board jurisdiction); see generally King v. Jerome, 42 F.3d 

1371, 1374 (Fed.Cir. 1994); Cowan v. U.S., 710 F.2d 803, 805 (Fed.Cir. 1983) (Board’s limited 

jurisdiction is not plenary, but instead set by the contours of statute and OPM regulation). As the 

Board itself has long taught, “the Board is without authority to broaden or narrow its appellate 

jurisdiction through the exercise of inherent power.” See McNeese v. Office of Personnel 

Management, 61 M.S.P.R.70 (February 24, 1994)(emphasis added); accord Kaapana v. Dept. of 

the Interior, 1 M.S.P.R. 556 (February 27, 1980). Accordingly, the Board would ostensibly lack 

the inherent plenary authority to modify its chief reviewing courts’ gloss on the Board’s 

jurisdiction-conferring statutes and OPM regulations (i.e., the ‘non-frivolous allegation’ 

standard). 

NELA is most gravely concerned about the pernicious proposal in “Option C” to allow for 

summary judgment. NELA has long believed that summary judgment has no place in the 

Board’s proceedings, and we emphatically oppose any proposal to allow for or to extend 

summary judgment into Board proceedings. This move is a slippery slope toward ending the 

Board’s long-stated policy of giving appellants their fair “day in court” by ensuring that cases go 

to a hearing whenever possible for a decision on the merits. If anything, Congress has recently 

clearly signaled to the Board its concerns about truncation of merits hearings on cases, even as to 

affirmative defenses. For example, in Section 114 of the Whistleblower Protection Enhancement 

Act of 2012 (WPEA), Pub.L. 112-199, Congress flatly rejected the prior practice of truncating 

hearings to skip over the underlying evidence of retaliatory animus in whistleblower cases in 

favor of solely focusing on the agency’s clear and convincing evidence that they would have 

taken the same action notwithstanding the protected whistleblowing. A mere year after 

Congress’ passage of WPEA Section 114, “Option C” would undo Congress’ work and provide 

another window for barring whistleblower reprisal claims from reaching merits hearings. As 

correctly noted elsewhere,1 other elements of the WPEA’s legislative history show that Congress 

considered—and then expressly rejected—giving the Board summary judgment authority at this 

time, both in terms of the GAO report after four years’ study on the possible need for summary 

judgment in WPEA Section 116 and the removal of the summary judgment provision from an 

earlier version of the bill. Just as summary judgment is clearly inappropriate in WPA cases, it is 

similarly inappropriate in the other areas of Board jurisdiction where the appellant has the burden 

of proof as identified in proposed new 5 C.F.R. § 1201.5(c) in “Option C” (e.g., USERRA cases, 

VEOA cases, cases where probationers allege discrimination on marital status or partisan 

political affiliation). 

 1 See, e.g., MSPB Watch, “Does MSPB Have the Discretion to Implement Summary Judgment 

Procedures Via Regulation?,” November 13, 2013, available at http://mspbwatch.org/2013/11/13/doesmspb-have-the-discretion-to-implement-summary-judgment-procedures-via-regulation/. 
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NELA believes that the Board has not demonstrated delay at the administrative judge level that 

would require a draconian fix such as creating a new summary judgment mechanism to hasten 

the disposition of appeals. The Board’s standard is for administrative judges to decide appeals 

within 120 days. See, e.g., MSPB Handbook for Administrative Judges, Ch. 1, § 2. According 

to the Board’s own performance statistics, average case processing time for initial decisions has 

long been well below 100 days—and actually decreased by one day between FY 2011 and FY 

2012.2 While those statistics will naturally be affected in FY 2013 and FY 2014 as a one-off 

result of the FY 2013 Sequester, the long-term statistics do not show any long-term inability to 

meet the Board’s own 120 day deadline at the administrative judge level in most cases. Further, 

the impact of summary judgment under “Option C” would likely be statistically marginal; the 

cases where the appellant has the burden of proof as identified in proposed new 5 C.F.R. § 

1201.5(c) in “Option C” on all claims only constitute roughly 20% of the total cases decided at 

the administrative judge level in FY 2012—and only roughly 10% of those cases adjudicated on 

their merits.3

 Such claims are also adjudicated as affirmative defenses in Chapter 75 and

Chapter 43 cases. Chapter 75 and Chapter 43 cases, however, must go to hearing in any event to 

decide the merits of their underlying adverse actions—and Congress has recently clearly rejected 

prior tactics used to sever such affirmative defenses from merits hearings, presumably on the 

excuse of expediency. See, e.g., Pub.L. 112-199 at § 114; see also discussion, supra. 

Undoubtedly, some percent of summary judgment decisions will be appealed to the full Board, 

reversed, and remanded for hearing. Thus, the summary judgment process will only lengthen the 

litigation process and twice place before the administrative judge and the Board what could only 

have been before them once.

Summary judgment in employment law matters is daunting to get past in order to get to hearing, 

even for parties represented by counsel.4

 NELA believes that, for the Board’s large portion of 

pro se appellants (which, according to page 3 of the “options” report attached to the Solicitation 

of Public Comments, constitute “more than half of the appeals filed in the Board’s regional and 

field offices”), presenting the legal argument and detailed factual proofs necessary to defeat 

summary judgment would present a nearly-insurmountable obstacle to a merits hearing. 

Authorizing summary judgment would massively increase the overall amount of motions 

practice at the trial level, which would likely severely delay proceedings. Further, NELA

expects that allowing summary judgment would greatly increase the workload of the Board itself 

 2 See MSPB Annual Performance Report (FY 2012) and Plan (FY 2013 (Final) – 2014 

(Proposed)), April 10, 2013, at 17 (average case processing time to initial decision between 83 and 94 

days between FY 2007 and FY 2012, and specifically 93 days in FY 2012 versus 94 days in FY 2011), 43 

(81% of initial appeals were processed in 120 days or less); MSPB Performance and Accountability 

Report for FY 2011, November 15, 2011, at 24 (average case processing time to initial decision between 

83 and 94 days between FY 2006 and FY 2011). 

3 See MSPB Annual Report for FY 2012, January 31, 2013, at 36-37. 

4 See, e.g., Hon. Nancy Gertner (ret.), “The Virtual Repeal of Kennedy-Johnson Administrations' 

'Signature Achievement',” Huffington Post, November 27, 2013, available at 

http://www.huffingtonpost.com/judge-nancy-gertner/the-virtual-repeal-of-kennedy-johnsonadministrations-signature-achievement_b_4311759.html; see also Prof. Richard L. Steagall, “The Recent 

Explosion of Summary Judgments Entered by the Federal Courts Has Eliminated the Jury from the 

Judicial Power,” 33 S. ILL. U. L.J. (Spring 2009) at 498 (“An expanded survey of employment 

discrimination cases from 1979 to 2006 shows that plaintiffs succeed in only 15% of the federal 

employment discrimination cases. Plaintiffs in other federal cases succeed in 51% of the time. This has 

resulted in a 37% decline in employment discrimination cases brought in federal courts from 1997–

2007.”), available at http://www.law.siu.edu/journal/33spring/5%20-%20Steagall%20-%20redo.pdf. 
December 6, 2013

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by massively increasing the number of Petitions for Review; with each grant of summary 

judgment potentially resulting in multiple Petitions for Review: review of the summary judgment 

decision and then, after remand, review on the merits after hearing. Such repetitive back-andforth appeals practice is not at all unusual in federal-sector EEO cases. Further, in order to create 

a written record which is detailed enough to allow their claims to survive summary judgment, 

appellants will be forced to engage in far more expansive discovery and deposition practice 

(which will also likely result in increased discovery motions practice). This increase in

discovery and in motions practice would greatly multiply the costs of proceedings at the Board 

for all parties. Further, through increasing the number of Petitions for Review, summary 

judgment would swamp the Board and its Office of Appeals Counsel, which is already facing 

increasing delays in processing Petitions for Review.5 This situation risks creating a Petition for 

Review workload that might imperil one of the present Board’s signature policy reforms: the 

issuance of substantive nonprecedential decisions to guarantee all parties a fully-reasoned and 

explained decision from the Board on a Petitions for Review (replacing the former nonexplanatory affirmance decisions). 

NELA fears that such increased difficulty and costs, and such increased barriers to pro se 

appellants, may further undercut the public perception of the Board as a fair forum for hearing 

whistleblower reprisal claims and other matters—a perception already challenged by the fact that 

less than 4% of all appeals received a merits decision favorable to the appellant in FY 2012, 

versus the over 71% of cases which were either dismissed or where a merits finding favored the 

agency.6 NELA reminds the Board that Congress made clear in the WPEA that it wants 

whistleblower reprisal claims heard on their merits, even going to the extent of stripping the 

Federal Circuit of its exclusive appellate jurisdiction over WPA claims due to prolonged judicial 

resistance to giving those merits hearings. See, e.g., Pub.L. 112-199, § 108; S.Rep. 112-155 at 1-

2, 6, 11-12. 

NELA also notes that the creation of summary judgment mechanisms is unnecessary because the 

Board has a robust settlement and ADR program where deficiencies in each parties’ case can be 

candidly discussed, often leading to settlements which voluntarily obviate the need for hearing. 

In such situations, appellants’ cases are concluded but without appellants feeling that they have 

been denied their ‘day in court.’ For all these reasons, summary judgment would not be a 

helpful addition to the Board’s procedural regulations.

That said, NELA does applaud the MSPB working group’s attempts to try to resolve the 

jurisdictional issues associated with ensuring the enforceability of settlement agreements reached 

in all Board appeals. We believe, however, that an alternate means should be used to ensure that 

enforceability. Other administrative tribunals, such as the EEOC, follow the common practice of 

accepting federal sector settlement agreements for enforcement without requiring exhaustive 

jurisdictional standards to be met—even when the case settles at the EEO informal 

complaint/precomplaint stage, for example. See, e.g., 29 C.F.R. §§ 1614.504(a), 1614.603. 

Again, NELA appreciates the opportunity to respond to the Solicitation of Public Comments, and 

wishes to thank the Board for its attention and consideration. 

 5 See MSPB Annual Performance Report (FY 2012) and Plan (FY 2013 (Final) – 2014 

(Proposed)), April 10, 2013, at 19. 

6 See MSPB Annual Report for FY 2012, January 31, 2013, at 36, 38. 
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Respectfully submitted, 

Terisa E. Chaw

Executive Director

TEC/jvk-ehp-ajp