U.S. MERIT SYSTEMS PROTECTION BOARD 

Office of the Clerk 

1615 M Street, NW 

Washington, DC 20419-0002 

Phone: (202) 653-7200; Fax: (202) 653-7130; E-Mail: mspb@mspb.sov 

Clerk of the Board 

February 2, 2012 

Mr. James V. Blair 

Deputy Associate Solicitor for Administrative Legal Services (Acting) 

U.S. Department of Labor 

200 Constitution Avenue, NW, Room N2424 

Washington, D.C. 20210 

Dear Mr. Blair: 

As we previously informed you, the U.S. Merit Systems Protection Board (MSPB) is 

undertaking a major revision to its regulations in 5 C.F.R. Parts 1201, 1208, and 1209. An 

internal working group at MSPB completed an in-depth review of those regulations and 

identified a number of proposed revisions, which were provided to you for your written 

comments. The MSPB's regulatory changes will eventually result in notice-and-comment 

rulemaking via the Federal Register, but we continue to seek input from our stakeholders in 

accordance with the public participation requirement in Executive Order 13563, "Improving 

Regulation and Regulatory Review." We specifically wish to give our stakeholders the 

opportunity to comment on MSPB' s proposed changes to its regulations and offer their own 

suggestions before drafting a formal notice of proposed rulemaking. 

The MSPB thanks you for your written response to the regulatory revisions now being 

considered. We want to follow up on your written input by providing an in-person meeting 

where MSPB staff will receive oral comments from individual stakeholders. The MSPB will 

conduct an informal meeting with stakeholders from 10:00 a.m. to noon on Tuesday, March 6, 

2012, at MSPB Headquarters, Suite 500 (Hearing Room), 1615 M Street, NW, Washington, 

D.C., for this purpose. You will be given up to 10 minutes to present any additional comments 

or suggestions. Although the Chairman anticipates opening the meeting and greeting 

participants, neither she nor the other Board Members will participate in the discussion. We 

emphasize that no decisions have yet been made regarding the specific regulatory changes that 

will become part of the notice of proposed rulemaking, or the precise language of any proposed 

revisions to our regulations. 

The MSPB's internal working group did not propose any changes to 5 C.F.R. § 1201.56, 

the regulation covering burdens ofproofand affirmative defenses. However, in light ofthe 

complexity of many Federal Circuit and MSPB decisions involving the burden of proof required 

to establish MSPB jurisdiction over an appeal, e.g., "nonfrivolous allegations" or proof by 
"preponderant evidence," the MSPB intends to consider appropriate revisions to 5 C.F.R. 

§ 1201.56. Your comments on these issues at the meeting on March 6 are encouraged. 

If you wish to attend and present comments on Tuesday, March 6, you should notify us 

no later than Monday, February 28. Please contact me by telephone at 202-653-7200 or by email 

at mspb@mspb.gov to confirm your spot and for further information. As we informed you in 

our previous letter, all written comments received from stakeholders will eventually be available 

on MSPB's website. In the meantime, we will provide other written stakeholders' comments to 

you by email upon request. Also, a transcript of the March 6 stakeholder meeting will later be 

made available to the public on MSPB' s website. 

We again thank you for taking the time to participate in this comprehensive review of the 

Board's regulations. We look forward to hearing from you on March 6. 

Sincerely, 

William D. Spencer 

Clerk of the Board