May 5, 2014 

Via E-mail: mspb@mspb.gov

Mr. William D. Spencer

Clerk of the Board

Merit Systems Protection Board 

1615 M Street, N.W. 

Washington, D.C. 20419 

Re: Proposed Amendments to MSPB Rules of Practice and Procedure 

79 Fed. Reg. 18658 (April 3, 2014) 

Dear Mr. Spencer:

The U.S. Office of Special Counsel (OSC) submits the following comments concerning 

the Board’s proposed rule commencing at page 18658 of volume 79 of the Federal Register, 

dated April 3, 2014. The Board has proposed regulations concerning establishing jurisdiction in

certain appeals, including individual right of action (IRA) appeals. My office’s primary mission 

is to safeguard the merit system in federal employment by protecting employees and applicants 

from prohibited personnel practices, especially reprisal for whistleblowing and protected activity. 

OSC therefore has a particular interest in ensuring that federal employees who challenge alleged 

prohibited personnel practices in IRA appeals enjoy the full protections of law. 

With the passage of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 

Congress expressed strong concern that many Federal Circuit and Board decisions and practices 

imposed legal hurdles that were inconsistent with the broad protection of the Whistleblower 

Protection Act (WPA) and prevented IRA appellants from having their cases decided on the 

merits. To address these concerns, Congress legislatively overturned these decisions and 

removed the Federal Circuit’s exclusive appellate jurisdiction over Board appeals for two years.1

 

To be sure, Congress left undisturbed many other Federal Circuit and Board decisions applying 

the WPA. Nevertheless, Congress’s intent to preserve “very broad protection” for 

whistleblowers is clear. S. Rep. 112-115, at 5 (2012). 

OSC is deeply concerned that the Board’s proposed new regulation to address how 

jurisdiction is established in IRA appeals will impair the ability of IRA appellants – most of 

whom are pro se – to have a fair opportunity to present their cases to the Board and obtain a 

decision on the merits. Specifically, in accordance with 5 U.S.C. § 1214(a)(3), the Board should 

 

1 See, e.g., S. Rep. 112-155, at 4-5 (2012) (“Clarification of what constitutes a protected disclosure”); id. at 

11-12 (“All-circuit review”); id. at 23-24 (“Right to a full hearing”).

U.S. OFFICE OF SPECIAL COUNSEL

1730 M Street, N.W., Suite 300

Washington, D.C. 20036-4505

The Special Counsel
Mr. William D. Spencer

May 5, 2014 

Page 2 of 3 

The Special Counsel

not impose onerous burdens on IRA appellants to prove exhaustion of their administrative 

remedy at OSC. Likewise, under 5 U.S.C. § 1221(f)(2), when determining whether an IRA 

appellant has proved exhaustion, the Board must not consider in any way OSC’s decision to 

terminate its investigation.

The statutory exhaustion requirement for an IRA appeal is not burdensome. As set forth 

at 5 U.S.C. § 1214(a)(3), an IRA appellant need only “seek corrective action from the Special 

Counsel before seeking corrective action from the Board.” The contours of what it means to 

“seek corrective action from Special Counsel” and what evidence the appellant must submit to 

prove exhaustion have been developed solely through case law. 

The proposed regulation, 5 C.F.R. § 1201.57, codifies existing case law, specifically 

Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001), holding that to establish 

jurisdiction in an IRA appeal, the appellant must prove by preponderant evidence that he has 

exhausted his remedy before OSC. Yunus, 242 F.3d at 1371 & n.1. The proposed regulation 

leaves open to further interpretation, however, how the appellant will meet the burden of proving 

exhaustion. 

Until recently, the test for exhaustion under relevant precedent was whether the IRA 

appellant had “inform[ed] the Special Counsel of the precise ground of his charge of 

whistleblowing[,]” thereby giving OSC sufficient basis to pursue an investigation which might 

lead to corrective action. Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1377 (Fed. 

Cir. 2001) (citation omitted); see also Swanson v. Gen. Servs. Admin., 110 M.S.P.R. 278, ¶ 7 

(2008) (to meet exhaustion requirement appellant “must articulate with reasonable clarity and 

precision before OSC the basis for his complaint of whistleblowing reprisal”) (citing Briley, 236 

F.3d at 1377). In other words, an IRA appellant as a complainant at OSC needed only to state 

allegations that would give OSC a sufficient basis to pursue an investigation that might lead to 

correction action. See Briley, 236 F.3d at 1378 (disagreeing with Board’s analysis of appellant’s 

allegations to OSC); Swanson, 110 M.S.P.R. 278, at ¶ 8 (appellant “specified with reasonable 

clarity and precision the content of the disclosure, the individual to whom it was made, the nature 

of the personnel actions that were allegedly taken in retaliation, and the individuals responsible 

for taking those actions. These essential details were sufficient to provide OSC with a basis for 

an investigation that might have led to corrective action.”)

However, the Board recently changed the test for exhaustion from a simple allegationstating requirement to an actual information-submitting requirement, which is significantly more 

burdensome. In Clarke v. Department of Veterans Affairs, the Board found that “because the 

information that the appellant provided to OSC was insufficient for it to pursue an investigation 

that might lead to corrective action concerning those alleged disclosures, the appellant failed to 

exhaust his administrative remedy with respect to them.” Clarke v. Dep’t of Veterans Affairs, 

2014 MSPB 11, ¶ 14 (Feb. 27, 2014). As noted by the dissent, the Board in Clarke has 

fundamentally changed the test for exhaustion in IRA appeals. See Clarke, 2014 MSPB 11, at ¶¶ 

5-6 (Vice Chair Wagner dissenting). Furthermore, the Board appears to have disregarded the 
Mr. William D. Spencer

May 5, 2014 

Page 3 of 3 

The Special Counsel

statutory requirement that OSC’s decision to terminate its investigation “may not be considered” 

in an IRA appeal. 5 U.S.C. § 1221(f)(2) (emphasis added). 

OSC urges the Board to modify its proposed jurisdictional regulation for IRA appeals to 

recognize the statutory requirements and to reflect Congress’s expressed intent to provide very 

broad protection for federal employees who blow the whistle or otherwise engage in protected 

activity. The regulation should recognize that: 

• In most cases, an IRA appellant should meet the preponderant evidence burden of 

proving exhaustion simply by providing a copy of the complaint filed with OSC. See 5 

U.S.C. § 1214(a)(3) (IRA appellant need only “seek corrective action from the Special 

Counsel before seeking corrective action from the Board.”) 

• In occasional cases, such as where the complainant submits new allegations to OSC after 

the initial complaint, an IRA appellant may need to submit the IRA letter from OSC, 

which sets forth the alleged disclosures and/or protected activity and the alleged 

retaliatory personnel actions. See 5 U.S.C. § 1214(a)(2)(B) (OSC’s termination letter 

“may not be admissible as evidence in any judicial or administrative proceeding, without 

the consent of the person who received such statement”); Bloom v. Dep’t of the Army, 

101 M.S.P.R. 79, ¶ 10 (2006) (Board may order an appellant to submit a copy of OSC’s 

termination letter, but the order must contain an explanation of why the letter is necessary 

and give the appellant the opportunity to consent). 

• In no case should the Board require IRA appellants to submit correspondence from OSC 

or other information that reflects OSC’s investigative processes or the basis for OSC’s 

discretionary decision to terminate an investigation at the complaints examination stage. 

See 5 U.S.C. § 1221(f)(2) (OSC’s decision to terminate its investigation “may not be 

considered” in an IRA appeal); Bloom, 101 M.S.P.R. 79, at ¶ 10 (same); see also Carson 

v. Special Counsel, 633 F.3d 487, 493-94 (6th Cir. 2011) (decision whether to pursue an 

investigation beyond the preliminary examination of the complaint is solely within the 

Special Counsel’s discretion); Special Counsel v. Harvey, 28 M.S.P.R. 595, 599 (1986) 

(same), rev’d on other grounds, Harvey v. Merit Sys. Prot. Bd., 802 F.2d 537 (D.C. Cir. 

1986). 

Thank you for this opportunity to comment on the proposed regulations. If the Board has 

any questions regarding these comments, please direct them to Eric Bachman, Deputy Special 

Counsel for Litigation and Legal Affairs. He can be reached at (202) 254-3606, or by e-mail at

ebachman@osc.gov. 

 

Respectfully,

Carolyn N. Lerner