475 L’ENFANT PLAZA SW

WASHINGTON DC 20260-1150

(202) 268-8540

FAX: (202) 268-6279

ERIC J. SCHARF

MANAGING COUNSEL

EMPLOYMENT & LABOR LAW

December 6, 2013

William D. Spencer

Clerk of the Board

Merit Systems Protection Board 

1615 M Street NW 

Washington, DC 20419

Re: Postal Service Comments – MSPB’s November 8, 2013 Notice of Proposed 

Rulemaking

Mr. Spencer:

The U.S. Postal Service submits these comments in response to the Merit Systems 

Protection Board’s November 8, 2013 Notice of Proposed Rulemaking, in which the 

Board invited public comment on its proposals to revise 5 C.F.R. section 1201.56. 

In general, the Postal Service supports the Board’s effort to update its regulations 

and clarify the requirements for establishing jurisdiction over claims and appeals. 

While all four of the Board’s proposed options are well drafted, the Postal Service 

has significant concerns regarding each proposed option. Furthermore, all 

stakeholders would benefit if the Board explicitly addresses the identified concerns 

in the rules.

Option A: The Postal Service is concerned with the lack of definite standards in 

Option A because it introduces unnecessary ambiguity. In particular, Option A’s 

proposed section 1201.56(a) lacks specificity, stating only that “[g]enerally, the 

agency bears the burden of proof by a preponderance of the evidence.” It then lists 

several “common exceptions,” but does not specify whether there are other 

exceptions or what standard applies to those exceptions, listed or unlisted. Thus, 

Option A fails to give parties clear guidance.

The Postal Service understands the Board’s desire to draft a “simple” rule, so as to 

not “overwhelm” infrequent or unsophisticated litigants. But simplicity and clarity are 

not synonymous. A truly clear rule will produce predictable results, while a simple 

rule may not always do so. A rule may be simple, yet for lack of definiteness fail to 

inform parties of their respective burdens. See Lumen N. Mulligan, Clear Rules—

Not Necessarily Simple or Accessible Ones, 97 VA. L. REV. IN BRIEF 13, 16 (2011) 

(“[C]larity does not necessarily coincide with simplicity or accessibility. As such, 
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marking a regime as complex or inaccessible does not necessarily mark the regime 

as unclear.”). By contrast, a complex but definite rule will produce predictable 

results, and thus provide parties with clear guidance. See id. Clarity is also distinct 

from accessibility. Id. A rule may be accessible, i.e., understandable by the lay 

public, yet produce unpredictable results. Id.

And where jurisdiction is concerned, predictability is essential. Ill-defined 

jurisdictional rules foster uncertainty, which can in turn impose costs on all parties. 

See Scott Dodson, The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1, 7

(2011) (“Jurisdictional clarity can mitigate some of the litigant costs by enabling 

litigants to file in the proper forum more often.”). For instance, if the regulatory 

standard is left unclear, parties will be required to comb through the Board’s case 

law to glean the applicable standards. The burdens of conducting such research will 

fall hardest on pro se litigants, who are likely to lack the resources and 

sophistication necessary to discover and interpret on-point precedent. Moreover, by 

failing to establish a clear standard in the regulation, the Board would risk allowing 

for inconsistent application. Cf. King v. LaMarque, 464 F.3d 963, 966 (9th Cir. 

2006) (stating, in its consideration of a California state rule, that “overly ambiguous 

standards almost inevitably lead to inconsistent application”). Different decision 

makers might interpret the regulation in distinct ways, resulting in unpredictable and 

inequitable results in similar cases.

Because of the lack of clarity in Option A and the consequences that its ambiguity 

might entail, the Postal Service recommends that the Board select a more definite 

option.

Option B: The Postal Service is concerned with the new jurisdictional standard 

Option B applies to failure-to-reemploy claims under the Uniformed Services 

Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301–35. 

The Postal Service’s understanding of Option B is that it places USERRA failure-toreemploy claims under proposed section 1201.56, while assigning retaliation and 

discrimination claims to proposed section 1201.57. Specifically, 1201.56(a)(3) 

states that it “does not apply to . . . appeal[s] under [USERRA] in which the 

appellant alleges discrimination or retaliation in violation of 38 U.S.C. § 4311.” 

Likewise, 1201.57(a)(3) states that it does apply to “appeal[s] under [USERRA] in 

which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. § 

4311.” Thus, by Option B’s literal terms, failure-to-reemploy claims under 38 U.S.C. 

sections 4312 and 4313 would be governed by section 1201.56(b), while 

discrimination and retaliation claims would be governed by sections 1201.57(b) and 

(c).
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This dichotomy is inconsistent with the Board’s precedent. Currently, the Board 

treats all USERRA claims alike for jurisdictional purposes. It permits claimants to 

establish jurisdiction through non-frivolous allegations, regardless of whether they 

allege a failure to reemploy, discrimination based on military service, or retaliation 

based on protected activity. Compare Silva v. Department of Homeland Sec., 112 

M.S.P.R. 362, 370 (2009) (failure to reemploy), and Groom v. Department of the 

Army, 82 M.S.P.R. 221, 225 (1999) (same), with Davison v. Department of Veterans 

Affairs, 115 M.S.P.R. 640, 646 (2011) (retaliation), and Hammond v. Department of 

Veterans Affairs, 98 M.S.P.R. 359, 361 (2005) (discrimination). But under Option B, 

failure-to-reemploy claims would be subject to different jurisdictional requirements 

than discrimination and retaliation claims. Proposed section 1201.56(b) requires 

claimants to prove all “[i]ssues of jurisdiction” by a preponderance of the evidence, 

while section 1201.57(c) allows claimants to establish certain jurisdictional elements 

through non-frivolous allegations. 

The Board has not stated that it intends to depart from its precedent in this manner. 

Rather, it indicated that it proposed Option B only to “make [its] regulations 

consistent with existing Board and Federal Circuit case law.” Merit System 

Protection Board Solicitation of Public Comment, 78 Fed. Reg. 67076 (Nov. 8, 

2012). That statement is not accurate. As set forth above, the change 

contemplated is, at least in part, contrary to Board case law.

The Board has not articulated, nor is the Postal Service aware of, any basis for 

departing from this precedent and treating discrimination and retaliation claims 

differently from reemployment claims for the purposes of jurisdiction. No such basis 

is apparent in the governing statute. Title 38, section 4324 of the United States

Code—granting the Board jurisdiction over USERRA claims against federal 

agencies—does not distinguish between reemployment claims and discrimination or 

retaliation claims. See § 4324(c)(1) (“The Merit Systems Protection Board shall 

adjudicate any [USERRA] complaint brought before the Board . . . .”) (emphasis

added). Indeed, section 4324(c)(2) directs the Board to grant relief to a complainant 

if the Board determines that the agency “has not complied with the provisions of 

[USERRA] relating to the employment or reemployment of [the complainant] by the 

agency.” Id. (emphasis added). Nor is any basis for the distinction apparent in 

Federal Circuit case law. Rather, that court has held that the Board “shall adjudicate 

all USERRA claims brought before it,” and that it “must administer the law as 

Congress wrote it.” Kirkendall v. Department of Army, 479 F.3d 830, 844 (Fed. Cir. 

2007) (holding that the Board could not, as a matter of administrative practice, deny 

USERRA claimants statutorily mandated hearings).
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Accordingly, if the Board adopts Option B, the Postal Service suggests that it 

change Option B so that failure-to-reemploy claims will be treated like other 

USERRA claims for jurisdictional purposes. Alternatively, the Board should explain 

on what basis the Board elected to treat such claims differently. Finally, the Postal 

Service urges the Board to explain how Option B would affect 5 C.F.R. 1208.11–

1208.16.

Options C and D: The Postal Service is concerned with three aspects of Options C 

and D: (1) their effect on the Board’s jurisdiction over discrimination claims in mixed 

cases; (2) their exclusion of Federal Employees’ Compensation Act (FECA) 

restoration claims from proposed section 1201.5(c); and (3) their repeal of the nonfrivolous-allegations standard for certain types of claims.

First, based on the Postal Service’s understanding of Options C and D, as well as 

the Board’s precedent, it concludes that if an appellant bringing a mixed case 

satisfies the jurisdictional requirements of either proposed section 1201.5(b) or 

1201.5(c), the presiding administrative judge will be bound to reach the merits on all 

attendant discrimination claims. See 5 U.S.C. § 7702(a)(1); Hardy v. U.S. Postal 

Service, 104 M.S.P.R. 387, 404 (2007); Harris v. Department of the Air Force, 100 

M.S.P.R. 452, 455–56 (2005). And because Options C and D’s jurisdictional 

requirements are less onerous than the standards currently in place, they will allow 

the Board to do so on a greater number of such claims. Because this change could 

affect a significant number of cases, the Postal Service believes that all 

stakeholders would benefit from the Board’s express comment on whether its 

understanding is correct and, if so, its justification for such a significant change.

Second, the Postal Service is concerned that the Board did not include Federal 

Employees’ Compensation Act (FECA) restoration claims under proposed section 

1201.5(c). The Board indicated that, for the claims listed under 1201.5(c), 

appellants must make certain merits-based allegations to establish jurisdiction. But 

the Board’s precedent also requires such merits-based allegations for FECA 

restoration claims. See Latham v. U.S. Postal Serv., 117 M.S.P.R. 400, 408 (2012). 

Moreover, the applicable regulatory language suggests that some additional meritsbased assertions are necessary. See 5 C.F.R. § 353.304(c) (“An individual who is 

partially recovered from a compensable injury may appeal to MSPB for a 

determination of whether the agency is acting arbitrarily and capriciously in denying 

restoration.” (emphasis added)). Accordingly, the Postal Service urges the Board to 

include FECA restoration claims under section 1201.5(c).

Third, insofar as section 1201.5(c) discards the Board’s current practice of requiring 

non-frivolous, merits-related allegations to establish jurisdiction over certain classes 
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of cases, the Postal Service urges the Board to reconsider. Lowering appellants’ 

burden in this fashion may cause the Board to assume jurisdiction over cases in 

which the facts would not permit the appellant to articulate a non-frivolous allegation,

and thus the Board will assume jurisdiction over cases outside of its statutory 

jurisdiction unnecessarily. Rather than allowing such non-meritorious claims to go 

forward, the Board should seek to resolve them as early as possible in the process, 

and with the least expenditure of resources. Moreover, the existing non-frivolousallegation requirement is not onerous, and should not prevent the Board from 

exercising jurisdiction over any truly meritorious cases. Cf. Francis v. Department of 

the Air Force, 120 M.S.P.R. 138, 143 (2013) (explaining that a non-frivolous 

allegation is only an “allegation of fact that, if proven, could establish a prima facie 

case that the Board has jurisdiction over the appeal”).

In sum, the Postal Service urges the Board to include FECA restoration claims 

under section 1201.5(c), reconsider its decision to discard the non-frivolous 

allegation requirement for claims under that section, and comment on Options C 

and D’s effect on the Board’s jurisdiction over discrimination claims in mixed cases.

We appreciate the opportunity to comment on these matters.

Sincerely,

Eric J. Scharf