Government Accountability Project

National Office

1612 K Street · Suite 1100

Washington, DC 20006

202-457-0034 · fax: 202-457-0059

www.whisleblower.org

· 

July 23, 2012

William D. Spencer, Clerk of the Board,

Merit Systems Protection Board, 

1615 M Street NW., Washington, DC 20419

Dear Mr. Spencer:

The Government Accountability Project {GAP} submits the following comments in 

response to the Merit Systems Protection Board’s proposed changes in practices and procedures 

for employee appeals. 77 Fed.Reg. 337763 (June 7, 2012). GAP believes that nearly all the 

Board’s proposed changes are useful, nuts and bolts improvements that will make due process 

rights more accessible, especially for employees proceeding without counsel. We are deeply 

concerned, however, that proposed “choice of remedy” modifications unnecessarily would force 

whistleblowers who first seek help from the Office of Special Counsel (“OSC”) to sacrifice the 

most elementary employee rights in the civil service system if they proceed with an Individual 

Right of Action. (“IRA”) shrink merit system rights of whistleblowers. There is no basis in law 

or public policy to force that Catch 22 choice. 

POSITIVES

For federal workers without counsel, overly-formalistic, rigidly enforced procedures long 

have been a barrier to justice under the merit system. The Board should be commended for 

modernizing and streamlining employee burdens. Of particular significance, proposed sections –

* 1201.4(j) relaxes rigid filing deadlines to account for mail delays; 

* 1201.24(a)(7) reduces employee documents attachment burdens when filing an appeal; 

* 1201.34(e)(1) applies general principles of jurisprudence to accept amicus curiae, or 

friend of the court, briefs. 

* 1201.53(b) gives Administrative Judges (“AJ’s”) the authority to order that agencies 

pay for and provide hearing transcripts to employees. 

* 1201.58(c) permits parties to rebut new evidence added just before the record closes. 

* 1201.73(a) summarizes an agency duty to cooperate, both with respect to providing 

witnesses and documents sought by employees in pre-hearing discovery. 
* 1201.112(a)(4) and 1201.113(a) permit parties to settle and have an Administrative 

Judge’s ruling vacated, if agreement is reached prior to the deadline for filing a Petition for 

Review appealing the AJ’s ruling to the full Board. 

* 1201.113(f) institutionalizes referrals to the Office of Special Counsel for disciplinary 

investigation of any employee found to have committed a prohibited personnel practice. 

* 1201.114(a) permits employees to file reply briefs rebutting the agency’s response to a 

Petition for Review. 

* 1201.201(a) institutionalizes in Board regulations its authority to provide compensatory 

damages.

NEGATIVE

In proposed sections 1201.21(d) and 1209.2(c) and (d), the Board would strip agencies of 

the burden to prove the merits of its charges against employees who file Individual Rights of 

Action (“IRA’s) or the reasonableness of its penalty, including whether termination or another 

personnel action “will promote the efficiency of the service.” The Board’s rationale is that the 

changes are necessary to comply with 1994 amendments to the Whistleblower Protection Act 

(“WPA”) requiring employees to make a choice of forum. Those amendments are codified in 5 

USC 7121(g)(3). Unless modified, this regulation could force employees to choose between their 

rights under the WPA, or their rights under the rest of the Civil Service Reform Act. There is no 

sound basis in policy or law to force that choice, which in terms of damage to the merit system

would far outweigh the nuts and bolts benefits in the proposed regulations. 

In overview, the Board’s job is to protect the merit system. While it is necessary to 

comply with statutory requirements, the Board should not engage in any nondiscretionary actions 

that shrinks the scope of the merit system. That is what has happened here. 

First, the provision in the 1994 amendments was meant only to apply to employees in 

collective bargaining agreements. (“CBA’s”) It provides no authority to shrink the rights of 

others not covered by CBA’s. Nor is there any policy basis to strip OSC complainants of civil 

service merit system rights that govern all other Board proceedings. The choice of forum 

provision was enacted to prevent duplicative, parallel due process proceedings conducted by the 

Board (either through a direct appeal or OSC-based complaint), at the same time as a labor 

management conducted by the Federal Labor Relations Board through its arbitrators. There is not 

a word of legislative history, or any record at all, that it was intended to require inconsistent 

standards for employees who start with the OSC, compared to starting with the Board. Nor is 

there any record basis that the amendments force the Board to discard the efficiency of the 

service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that 

an agency must prove performance-based charges with substantial evidence, and misconductbased adverse action by a preponderance of the evidence. 
Indeed, the Board does not have that authority. Prohibited personnel practices are an 

additive basis to reject an agency action [“notwithstanding paragraph (1)”], not substitutive. 

Congress has not created an “WPA OSC” exception to section 7701(c)(1), and the Board cannot 

do so on its own. 

If the Board feels compelled to adjust regulations for the 1994 amendments, it should act 

in a way that minimizes dilution of the merit system. To the maximum extent possible,

restructuring hearing procedures should not affect overall agency burdens. To illustrate, if an 

agency cannot prove the merits of its charges, that factor combined with protected activity and 

knowledge should satisfy the nexus element for a prima facie case of retaliation as a matter of 

law. As a matter of law, it also should defeat the agency’s clear and convincing evidence defense 

of independent justification, based solely on the strength of evidence criterion to assess the 

agency defense. 

Similarly, there is no authority in law to remove an employee for reasons that do not 

promote the efficiency of the service. Correspondingly, the final regulation should specify that as 

a matter of law if there is protected activity and knowledge, a personnel action that does not 

promote the efficiency of the service establishes compliance with the nexus element for a prima 

facie case of retaliation, and as a matter of law defeats the clear and convincing evidence defense 

based solely on failure to meet the discriminatory treatment criterion.

In short, it is unnecessary to overturn longstanding Board case law and doctrines of 

jurisprudence, merely for compliance with a 1994 WPA amendment passed to avoid duplication

between arbitrations, and OSC or Board rulings or hearings. If the Board feels compelled, 

however, to act within the law it must make corresponding adjustments so that it does not 

arbitrarily force employees pursuing their WPA rights through to Special Counsel to sacrifice the 

most basic rights of the civil service system. 

Respectfully submitted,

__________________________ 

Thomas Devine

Legal Director