U.S. OFFICE OF SPECIAL COUNSEL 

1730 M Street, N.W., Suite 300 

Washington, D.C. 20036·4505 

The Special Counsel 

Via E-mail 

Mr. William D. Spencer 

Clerk of the Board 

Merit Systems Protection Board 

1615 M Street, N.W. 

Washington, D.C. 20419 

December 4, 2013 

Re: Solicitation of Public Comments Concerning Options for 

Proposed Amendments to MSPB Rules of Practice and Procedure 

78 Fed. Reg. 67076 (Nov. 8, 2013) 

Dear Mr. Spencer: 

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

concerning the Board's proposed regulations commencing at page 67076 of volume 78 of 

the Federal Register, dated November 8, 2013. The Board invited public comment 

concerning options it is considering to revise its regulations on 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 ensuring that federal 

employees who challenge alleged prohibited personnel practices in IRA appeals enjoy the 

full protections oflaw. 

Like the Board, OSC has a strong desire to ensure that IRA appellants have a fair 

opportunity to present their cases to the Board. We note that many appellants represent 

themselves pro se in Board appeals, as they do in OSC complaints. These pro se 

appellants are often confused about what they need to do to establish Board jurisdiction 

over their claims. We think that the proposed MSPB Jurisdictional Matrix is an 

exceptionally useful aid for sorting through the jurisdictional elements for each kind of 

claim that may be litigated before the Board. We therefore recommend that the Board 

continue to maintain the Matrix on its website, modified if necessary to reflect the 

regulatory option selected. 1 

1 We note two modifications that may need to be addressed with regard to IRA appeals: (1) under "Claim 

Processing Rules," there is no explicit mention of the right to file with the MSPB after 120 days without a 

decision from OSC; (2) under numbers 2 and 3 of"Merit Issues," there is mention solely of protected 

"disclosure(s)," even though the Whistleblower Protection Enhancement Act of2012 pennits IRA appeals 

for other protected activity under 5 U.S.C. § 2302(b )(9)(A)(i), (B), (C), (D). 
The Special Counsel 

Mr. William D. Spencer, Clerk of the Board 

Proposed Amendments to MSPB Rules of Practice and Procedure 

Page2 of6 

We note from our own experience that retaliation cases are fact intensive, and that 

establishing the core elements of such cases- knowledge and the reasons for taking the 

personnel action- is difficult, particularly at the pleading stage. We therefore urge that, 

under any option, the Board continue to construe the allegations ofiRA appellants 

broadly to find that the Board at least has jurisdiction to adjudicate the merits of the 

appeal. Given the challenges we encounter in our own retaliation investigations, we 

believe it is unreasonable to expect IRA appellants to be able to prove their claims by 

preponderant evidence prior to taking discovery. We also are aware that the Board, like 

OSC, is constrained by limited resources and a growing caseload. Therefore, like all 

government agencies, the Board must act prudently to avoid procedures that are 

um1ecessary. 

The question presented in the four options is what quantity of evidence should an 

appellant be required to present for the Board to accept jurisdiction over an appeal, to 

hold an evidentiary hearing, and to reach a final decision on the merits. We discuss 

below the pros and cons of each option, in our view, and conclude that Option C offers 

the best procedure to protect the interests of whistleblowers and to promote the efficiency 

of the service: 

Option A would amend section 120 1.56(b) to state that the appellant bears the burden of 

proof on jurisdiction, generally by a preponderance of the evidence, and that the 

administrative judge will inform the pa:tiies of the proof required in each case. 

Pros: 

• Constitutes the least ai110Unt of change from current practice; 

• Allows prose appellant to clarify legal tenns, etc., through interaction 

with the administrative judge (AJ); 

• Permits flexibility if jurisdictional requirements change through case law, 

statute, or regulation. 

Cons: 

• Creates some uncertainty at the pleading stage because an appellant must 

await a11 AJ's instructions on quantum of proof required to establish 

jurisdiction. This Option, however, provides appellants an opportunity to 

cure potential defects upon instruction by the AJ; 

• Increases the burden on the AJ to be able to accurately identify potential 

causes of action at early stage of litigation based on prose "pleadings" 

and to explain the various burdens of proof clearly; 

• May lead to variations in Board practice if individual AJs provide 

different explanations of the proof required, even when they deal with 

same set of operative facts; 
The Special Counsel 

Mr. William D. Spencer, Clerk of the Board 

Proposed Amendments to MSPB Rules of Practice and Procedure 

Page 3 of 6 

• Does not define legal terms of art such as "jurisdiction" or "affirmative 

defense" that a pro se appellant may not understand; 

• Maintains current practice which requires IRA appellants to make a 

"nonfrivolous allegation" regarding the merits of their claim in order to 

establish Board jurisdiction over the claim- even though the appellant 

may not have the factual basis to make a "nonfrivolous allegation" at the 

early stage of the litigation. 

Option B would similarly amend section 1201.56(b) to provide that the appellant bears 

the burden of proof on jurisdiction, generally by a preponderance of the evidence. It 

would add a regulation, section 1201.57, that would address how jurisdiction is 

established in IRA, VEOA, and USERRA appeals. Option B would also clarify the 

burdens of proof on merits and other issues. 

Pros: 

• Itemizes the various exceptions to the traditional jurisdictional burdens; 

• Provides more predictable results than Option A because it does not 

require AJs to formulate individualized instructions on the proof required 

to overcome the jurisdictional hurdles in the instant appeal. 

Cons: 

• Is less flexible as standards evolve. If Congress amends the law, the 

regulation will be obsolete until an AP A procedure is accomplished to 

update it; 

• As discussed above for Option A, maintains current practice that requires 

IRA appellants to make a "nonfrivolous allegation" regarding the merits of 

their claim in order to establish Board jurisdiction over the claim- even 

though the appellant may not have the factual basis to make a 

"nonfrivolous allegation" at the early stage of the litigation; 

• Does not clarify the "who" and "what" aspects of jurisdiction as clearly as 

Option C. Rather it introduces a new, vaguely defined concept of 

"standing" in IRA appeals. 

Option C would amend the Board's regulations to state that all Board appeals include 

"who" and "what" jurisdictional elements that must be established by preponderant 

evidence, and identify the eight appeal types that require allegations as to specific merits 

issues in order to establish jurisdiction. This option would also include regulatory 

language stating that the MSPB is not required to hold an evidentiary hearing on matters 

on which the appellant bears the burden of proof when there is no genuine issue of 

material fact to be resolved. According to the commentary accompanying the proposed. 
The Special counsel 

Mr. William D. Spencer, Clerk of the Board 

Proposed Amendments to MSPB Rules of Practice and Procedure 

Page 4 of6 

option, the regulation contemplates that AJ s would instruct appellants on the deficiencies 

in their request for a hearing and then allow appellants an opportunity to demonstrate that 

a genuine issue of material fact warrants a hearing. Associated with Option C is an 

MSPB Jurisdictional Matrix that lists the "who" and "what" jurisdictional elements for all 

appeals within the Board's appellate jurisdiction. 

Pros: 

• Provides a clear and well-organized jurisdictional matrix. (As discussed 

above, a jurisdictional matrix should be available regardless of which 

option is used.) 

• States clearly in one regulation that there are several stages of"hurdles." 

The first is jurisdictional (who and what). The second is the merit-based 

pleadings needed to obtain an evidentiary hearing; 

• Makes it easier for an IRA appellant to establish Board jurisdiction, 

because the appellant need only establish facts showing qualifying 

employment status and covered personnel action to pass the first hurdle. 

This Option reserves the more difficult issue of causation for the merit 

phase of the proceeding; 

• Promotes settlement of IRA appeals by allowing the Board to take 

jurisdiction after the first hurdle is passed. This will permit the Board to 

use its ADR processes earlier to settle appeals and to accept settlement 

agreements into the record for enforcement; 

• Follows and clarifies existing Board case law regarding when an 

evidentiary hearing is required. See, e.g., Wible v. Dep't of the Army, 

2013 MSPB 87, ~ 8 (Nov. 1, 2013); 

• Establishes a regulatory framework that requires greater deference from 

reviewing courts than the deference given to Board case law, which may 

help avoid the seesawing jurisprudence that has occurred in the past with 

respect to appellate review of Board jurisdiction in IRA appeals. 

Cons: 

• Does not explain what "material fact to be resolved" means. This may end 

up increasing litigation costs as litigants will likely petition for review of 

the denial of an evidentiary hearing at the merit phase of the proceeding. 

New case law will develop over this issue; 

• May disadvantage less sophisticated appellants who may not understand 

how to gather evidence to put themselves in the best posture for a hearing 

when there is no "material fact to be resolved." This ambiguity could be 

addressed by including the following language from the commentary in 

the regulation itself: 
The Special Counsel 

Mr. William D. Spencer, Clerk of the Board 

Proposed Amendments to MSPB Rules of Practice and Procedure 

Page 5 of6 

In the merits hearing required by proposed section 

1201.24(d), the Board's administrative judges 

would be expected not only to determine whether 

the appellant has raised a genuine issue of material 

fact, but also to explore whether the appellant can 

articulate a genuine issue of material fact that might 

require an evidentiary hearing. In cases in which an 

appellant has not raised a genuine issue of fact as to 

a matter on which he or she bears the burden of 

proof, judges would explain the applicable 

substantive law, and why the facts as known appear 

to indicate that the appellant cannot prevail on the 

merits as a matter of law. In such a setting, pro se 

appellants would be in a position to articulate why 

they believe there is a genuine issue of material 

fact. If they can articulate such an issue, the judge 

would schedule an evidentiary hearing. If they are 

unable to articulate such an issue, the judge would 

issue an initial decision based on the existing 

record. 

Option D is the same as Option C, except that it does not include the proposed regulatory 

language authorizing an appeal to be decided when there is no genuine issue of material 

fact to be resolved. Option D would continue the Board's cunent practice of affording 

appellants the opportunity for a hearing, if requested, in all cases within its jurisdiction. 

Pros: 

• Appears to maximize the opportunities for IRA appellants to get hearings, 

although it is unclear whether this Option overrules and negates existing 

Board case law regarding when an evidentiary hearing is required, 

including the recent Wible decision. 

Cons: 

• Could waste time and delay processing of cases if evidentiary hearings are 

being held when there is no genuine material fact to be resolved. 

Thank you for this opportunity to coll1ll1ent on the proposed regulations. As noted 

above, we recommend that the Board adopt Option C. Based on our comparison of the 

characteristics of each option, Option C appears to accomplish a number of important 

goals: (!) it provides the broadest protections for IRA litigants by welcoming appeals 

where appellants can establish the "who" and the "what," jurisdictional elements that 
The Special Counsel 

Mr. William D. Spencer, Clerk of the Board 

Proposed Amendments to MSPB Rules of Practice and Procedure 

Page 6 of6 

should be known to them and easily established with preponderant evidence; (2) it 

eliminates other pleading requirements that have proven problematic to appellants 

attempting to establish IRA jurisdiction; (3) it reserves likely fact-intensive issues in 

which appellants may be at natural disadvantage until the appeal reaches the merit phase 

when appellants may use the Board's discovery process to level the playing field; (4) it 

conserves the Board's resources by eliminating a need for an evidentiary hearing on the 

merits if there are no genuine issues of material facts regarding the appellant's prima 

facie case. 

If the Board has any questions regarding these comments, please direct tbem to 

Greg Giaccio of my staff. He can be reached at (202) 254-3634, or by e-mail at 

ggiaccio@osc.gov. 

Respectfully, 

Carolyn N. Lerner