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Chairman, U.S. Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

Dear Chairman Grundmann:Thank you for the opportunity to comment on the Merit Systems Protection Board’s April 3,2014 notice of proposed rulemaking, published at 79 Fed. Reg. 18658, to amend the Board’s

rules of practice and procedure governing how jurisdiction is established over appeals.The proposed rule reflects the Board’s careful consideration of stakeholders’ comments on theBoard’s prior request for information (RFI), published at 78 Fed. Reg. 67076 (Nov. 8, 2013).Thank you for considering and, in part, adopting OPM’ s December 9, 2013 comments on theRFI. OPM’s comments on the proposed rule follow.OPM generally agrees with the Board’s approach of following option “B” of its prior RFI:

moving the definitions ofstandards of proof to the “general definitions” section of theregulations; setting forth, in section 1201.56, the standards of proof that apply to typical cases,

such as adverse action and retirement cases; and setting forth, in a new section 1201.57, thestandards of proof that apply to specialized categories of cases, namely, individual right of action

appeals under the Whistleblower Protection Act, requests for corrective action under theVeterans’ Employment Opportunities Act and the Uniformed Services Employment andReemployment Rights Act, and appeals of denials of restoration. This approach adds significantclarity to the Board’s rules of practice and procedure.

OPM has no objection to the Board’s decision not to use this rulemaking to propose summary

judgment procedures (option “C” of Board’s November 8, 2013 RFI). However, OPM urges the

Board to study whether additional proposed rulemaking is needed in this area.

OPM does not object to the Board’s proposal to add, to section 1201 .56(b)(2)(ii), a statement that

in appeals related to overpayments of benefits, OPM has the burden of proving the existence of

the overpayment by preponderant evidence. This is consistent with OPM’s own regulations in 5

C.F.R. § 831.1407 and 845.307.OPM’s remaining comments relate to proposed section 1201.57.

Substantive comments:

• In its December 9, 2013 comments, OPM cautioned that “omission of precise

jurisdictional rules may result in inconsistent practice.” Consistent with our prior

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jurisdictional issue. However this notice and a jurisdictional show

cause order may be

issued well after the filing and discovery deadlines prescribed in the acknowledgement

order have begun to run. We recommend that the paragraph be revised to require the

jurisdictional notice to be issued as soon as practicable, with an opportunity for the

parties to request an extension of filing and discovery deadlines pending the resolution ofany unresolved jurisdictional question. This would allow the administrative judge to

resolve threshold jurisdictional questions without an undue, premature commitment of

the parties’ time and resources to merits questions.

• In its December 9, 2013 comments, OPM noted with approval that options “C” and “D”

ofthe Board’s RFI addressed the additional jurisdictional pleading requirements that maybe a factor when matters are made appealable to the Board by OPM regulation rather than

by statute, e.g., in appeals of probationary terminations and appeals of employment

practices. The Board’s proposed adoption of option “B” means that the proposed rule

does not address these matters. OPM requests that the Board study whether additional

proposed rulemaking is needed in this area.

Technical comments:

• We recommend reversing the order of paragraph (c), which addresses the elements that

an appellant must non-frivolously allege in order to make an initial jurisdictional

showing, and paragraph (b), which addresses the preponderant evidence standard of proof

required for the appellant to ultimately prevail on the merits. This reordering willreinforce the rule that the Board cannot “skip over the jurisdictional question in order toreach the merits” of a case. Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371

(Fed. Cir. 2001). The regulations will also be easier to follow since their internalorganization will follow the order of decision in a Board appeal.

• The meaning of the text in paragraph (c), stating that the paragraph (or some part of it)

applies “[e]xcept for matters described in paragraphs (b)(1) and (3) of this section,” isambiguous. Please revise the paragraph for clarity.

Thank you again for the opportunity to comment on the Board’s proposed rule.

Sincerely,

Kamala Vasagam

General Counsel