changes suggested above. Finally, AFGE notes that by submitting these comments, AFGE does
not waive any rights or challenges that it may have, now or in the future, concerning any aspect
of the Board’s proposed regulations.

Sincerely,

AFGE, Office of the General Counsel
80 F Street, N.W.

Washington, D.C. 20001

Tel. 202-639-6426

Fax. 202-639-6441

bib

William R. Kudrle

Legal Intern

Office of the General Counsel
AFGE, AFL-CIO

80 F Street NW

Washington, DC 20001

Tele: (202) 639-6424

Fax: (202) 379-2928

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instead, waiting for a summary dismissal. This does not support the Board in administrating the
laws, rules, and regulation it is tasked with enforcing.

AFGE opposes this proposed rule in its entirety.

5 C.F.R. §1201.24 Content of an appeal; right to hearing.

An appellant’s right to a hearing is clearly established in 5 U.S.C. §7701(a)(1). While the
Board may have legitimate reasons for seeking summary judgment authority, the Board lacks the
power to rewrite the statute. This proposed regulation would create a regulatory summary
judgment motion, which was specifically rejected by Congress when it enacted 5 U.S.C.
§7701(a)(1).

As discussed by the Federal Circuit in Crispin v. Department of Commerce, 732 F.2d 919
(Fed. Cir. 1984), Congress was aware of the possibility of including a summary judgment when
it drafted 5 U.S.C. §7701. The Senate Bill contained a provision to allow for a summary
judgment without an evidentiary hearing, but the House Bill did not. See id at § 19-21.
Ultimately, the House bill was enacted. Congress’s deliberate choice to enact the House version
of the bill, without summary judgment authority, demonstrates the clear intent of Congress to
afford a litigant the right to a hearing before an administrative judge. This proposed regulation
would thus directly contradict the Board’s enabling Act, and could potentially lead to further
restrictions on an appellant’s right to a hearing. In addition, this provision would add to the
complexities of an appeal for pro se litigants who are often unfamiliar with discovery and motion
practices. AFGE is firmly opposed to this proposed regulation.

5 CF.R. §1201.56 Burden and degree of proof; affirmative defenses.

Once again, this proposal attempts to reduce the subsections of §1201.56 into a long and
confusing paragraph. The organizational structure in Option B is a clearer and more effective
way of conveying this information. AFGE recommends the structure in Option B, and that the
structure of §1201.56 in Option C should be adjusted to reflect the clearer organization.

IV. Option D

This option does not include any substantive changes besides those already addressed in
Option C. Because of its concerns noted in Option C, AFGE believes that this section’s election
not to include the proposed changes to §1201.24(d) is the more appropriate proposal.

AFGE incorporates its comments above discussing the proposed changes to §1201.3, the
new §1201.5, and §1201.56. In addition, AFGE again notes its opposition to the proposed
changes in §1201.3 and the new §1201.5.

Vv. Conclusion

AFGE thanks the Board for allowing it the opportunity to submit these comments.
AFGE believes that the Board’s proposed regulations would benefit from incorporation of the

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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

J. David Cox, Sr. Eugene Hudson, Jr. Augusta Y. Thomas
National President National Secretary-Treasurer National Vice President for
Women and Fair Practices

7bk/MSPB/327553
December 9, 2013

William D. Spencer

Clerk of the Board

U.S. Merit Systems Protection Board
1615 M Street, N.W.

Washington, DC 20419

mspb@mspb.gov
(202) 653-7130 (fax)

Re: Comments by AFGE Concerning Proposed Changes to MSPB Practices and
Procedures, 78 Fed. Reg. 67076 (November 8, 2013).

Dear Mr. Spencer:

The American Federation of Government Employees, AFL-CIO (“AFGE”) hereby
submits its comments to the changes proposed by the U.S. Merit Systems Protection Board
(“Board”) to the Board’s adjudicatory regulations. The proposed changes contain four different
options that the Board’s working group put forward to address nuances in the Board’s
jurisdictional requirements. AFGE will discuss each of these options in turn. Changes suggested
by AFGE are shown in bold.

AFGE believes that, for the most part, each option contains some useful changes. AFGE
does not, however, support Option C under which the Board would grant itself the power to
decide appeals on summary judgment and without a hearing. The proposed regulatory creation
of summary judgment authority is inconsistent with the plain language of the Civil Service
Reform Act. It would also impede meaningful access to the Board for pro se litigants, who may
be unfamiliar and/or unskilled at discovery and motion practice. Similarly, while Option A
would provide needed flexibility, Option A is hampered by a lack of clarity.

I Option A

5 C.F.R. §1201.4 General definitions.

AFGE does not object, in general, to the relocation of the definitions from §1201.56 to
the General definitions section in §1201.4. Assuming that the definitions will apply throughout
the rules, not exclusively to §1201.56 as stated in the current rules, this portion of the proposed

80 F Street, N.W,, Washington, DC 20001 e (202) 737-8700 e FAX (202) 639-6490 ° www.afge.org

®
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regulation is a reasonable choice to make the rules easier to digest. Having definitions spread
sporadically throughout the rules is not an effective way to communicate this information.

However, the ordering of §1201.4 could be improved. The Board appears to have chosen
to place the definitions in this section in chronological order. While it is understandable that the
definitions section is ordered chronologically, from when the definition was added to the section,
this approach makes it difficult to find a specific definition without searching through the entire
section. A simple way to alleviate this problem would be to reorganize §1201.4 into alphabetical
order. This change would also require the Board to change any reference to §1201.4 throughout
the rules to the new citation.

5 C.F.R. §1201.56 Burden and degree of proof; affirmative defenses.

AFGE does not support this proposed regulation. The proposed changes to this section
are unlikely to assist a pro se litigant in understanding the rule’s requirements. Compressing the
burden of proof section into one lengthy paragraph with multiple elements, requirements, and
standards does not make the rules easier to digest. By including only bare bones information,
this proposed change would also require a pro se litigant to continue searching throughout the
rules and Board precedent to find the burden of proof for their specific appeal. The readability of
this section could be improved by breaking the paragraph down into multiple segments as
demonstrated in Option B and in the current rules.

The provision dictating that the administrative judge will inform the parties of the proof
requirement for each defense is in recognition of long established practice and AFGE supports
this proposal.

I. Option B

5 C.F.R. §1201.4 General definitions.

As discussed in AFGE’s comments to Option A, the relocation of the definitions is a
generally beneficial change, though the definitions should be listed in alphabetical order.

5 C.F.R. §1201.56 Burden and degree of proof.

AFGE suggests that subsection (a) of this proposal be adjusted to recognize that this
section would apply to all appeals before the Board, except those listed in subsection (a). In
addition, a cross reference should be included in §1201.56(a) so that a reader would know where
to look for information regarding these three types of appeals. Therefore, AFGE recommends
that this proposal should be adjusted to read as follows:

(a) Applicability: This section applies to all appeals before the Board, except the

following types of appeals (the burden and degree of proof for these types of appeals
are discussed in §1201.57):

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Subsections (b) and (c) are similar to the current rules; however the proposal for
subsection (b)(1) again attempts to compress information into a single unwieldy paragraph.
AFGE therefore recommends that subsection (b)(1) be adjusted to read as follows:

(1) Agency: under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in
paragraph (c) of this section, the agency action must be sustained if:
i. It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and it is supported by
substantial evidence (as defined in §1202.4(p) of this part); or
ii. It is brought under any other provision of law or regulation and is
supported by a preponderance of the evidence (as defined in §1201.4(q) of
this part).

Whether through intentional omission or by error, the title to this subsection does not
include “affirmative defenses”. Because subsection (c) discusses affirmative defenses, the title
should be edited to read:

5 C.F.R. §1201.56 Burden and degree of proof; affirmative defenses

of proof. scope of review.

Placing the requirements of IRA appeals, VEOA appeals and USERRA discrimination
appeals into a new section, §1201.57, is another logical step toward making the rules easier to
understand. These three classes of appeals contain their own requirements and separating them
into their own sections is a reasonable choice to aid a pro se litigant in finding the standards and
burdens for their specific appeal. As noted above, a cross reference should be made in
§1201.56(a) to §1201.57 to make the rules easier to follow.

Ill. Option C

AFGE opposes Option C. The creation of §1201.5 imposes procedural steps before an
appellant can seek redress before the Board. Instead of requiring an appellant to satisfy the
requirements of the authorizing law, rule, or regulation, this proposed rule requires the appellant
to establish potentially additional elements. While phrased as merely requiring the appellant to
adhere to pre-established principles, this section has the potential to place additional burdens on
an already extensive and complicated process. Requiring the appellant to clear these additional
hurdles places a great deal of effort on the appellant’s representatives, and is an even steeper
hurdle for unrepresented appellants.

The summary and analysis section for Option C states that §1201.5 would lead to more
settlement agreements. Whether it would lead to more settlement agreements is a matter of
debate; but what can be certain is that any new settlement agreements would be favorable to the
agency and not to the appellant. An appellant, especially a pro se appellant, may be forced to
settle a legitimate claim for fear of dismissal for failing to adhere to the requirements of §1201.5.
More likely, this rule would lead to the Agency declining to engage in settlement discussion;

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