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email: nelahq@nelahq.org  www.nela.org  FAX 866.593.7521 

May 2, 2014

VIA e-mail to mspb@mspb.gov

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW

Washington, DC 20419

Re: Response to Proposed Rule, 79 Fed.Reg. 18,658-18,661

Dear Mr. Spencer:

The National Employment Lawyers Association (NELA) respectfully submits the following 

comments in response to the Merit Systems Protection Board’s Proposed Rule, published in the 

Federal Register on April 3, 2014, 79 Fed.Reg. 18,658-18,661. 

NELA is the largest professional membership organization in the country comprised of lawyers 

who represent employees in labor, employment, wage and hour, and civil rights disputes. NELA 

advances employee rights and serves lawyers who advocate for equality and justice in the 

American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of 

over 4,000 attorneys who are committed to working on behalf of those who have been illegally 

treated in the workplace. NELA has filed numerous amicus curiae briefs before the United 

States Supreme Court and other federal appellate courts regarding the proper interpretation of 

federal civil rights and worker protection laws, as well as undertaking other advocacy actions on 

behalf of workers throughout the United States. A substantial number of NELA members 

represent federal employees in employment law matters, and thus we have an interest in the 

modifications to MSPB’s procedural regulations.

NELA appreciates the opportunity to comment on the proposals for additional modifications to 

the Board’s procedural regulations. As a general matter, NELA has supported the Board’s 

recent efforts of continuing reevaluation of internal processes in the interest of improving 

operations and the adjudication of appeals. NELA is concerned that this Proposed Rule 

represents a damaging shift from the Board’s preexisting jurisdictional precedent in the area of 

constructive adverse actions. Instead of merely codifying the present standards into the Code of 

Federal Regulations, the Proposed Rule, as currently written, raises jurisdictional standards 

without any stated rationale for doing so. 

The present Proposed Rule is most similar to “Option B” from the working group report 

referenced in the Board’s 2013 Solicitation of Public Comment.1

 Neither the Proposed Rule, the 

Solicitation of Public Comment, nor the attached working group report for “Option B” states the

 

1 Board’s Solicitation of Public Comments, published in the Federal Register on November 

8, 2013, 78 Fed.Reg. 67,076-67,077.
2

purpose as attempting to change substantively the Board’s jurisdictional standards. Instead, the 

Board and the working group identify clarification and codification of the prior case law as the 

goal of the proposed revision. For the reasons stated below, NELA believes that the current 

Proposed Rule does in fact make such a substantive change.

Under current case law from the Board’s chief reviewing court (the U.S. Court of Appeals for the 

Federal Circuit), appellants in constructive adverse action cases2 have two different 

jurisdictional burdens at different stages of the case: the burden of showing a nonfrivolous 

allegation of jurisdiction in order to receive a jurisdictional hearing, and then the burden of 

showing preponderant evidence of jurisdiction for the case to prevail on the merits. See Garcia 

v. Dept. of Homeland Security, 437 F.3d 1322, 1341 (Fed.Cir. 2006) (“In other words, the 

jurisdictional determination is not identical to the merits determination.”). Board precedent 

requires that an administrative judge hold a jurisdictional hearing in order to be able to make the 

credibility determinations needed to assess if jurisdiction properly attaches. See Hurwitz v. Dept. 

of the Army, 61 M.S.P.R. 436 (1994); Timberlake v. U.S. Postal Service, 76 M.S.P.R. 172 

(1997); Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325 (1994). For example, such hearings are 

important where issues involving credibility determinations on issues of psychological stress 

from duress, harassment, or discrimination (e.g., a case involving a constructive removal where 

the appellant claims to have been involuntarily forced by severe discrimination or harassment 

into resigning). The current proposed 5 C.F.R. § 1201.56 omits the jurisdictional hearing 

procedure. The Board has cited no rationale for deliberately eliminating the jurisdictional 

hearing; NELA suggests that 5 C.F.R. § 1201.56 be rephrased to avoid changing this standard 

inadvertently.

Further, the present Proposed Rule seemingly changes the evidentiary standard for an 

appellant to meet the “non-frivolous allegation” standard. Under the new definition in proposed 5 

C.F.R. § 1201.4(s), appellants are required to present their nonfrivolous allegations in the form 

of a statement under oath or penalty of perjury. Historically, the Board did not limit the form of 

acceptable proof so narrowly. Instead, the Board has previously held that other forms of 

evidence—such as corroborative documents or unsworn corroborative witness statements—are 

competent evidence for making a nonfrivolous allegation. See, e.g., Turner v. U.S. Postal 

Service, 90 M.S.P.R. 385 (2001) at ¶¶ 3, 8 (nonfrivolous allegation found based on submission 

of documents evidencing preference eligible status); Barnes v. U.S. Postal Service, 71 

M.S.P.R. 337 (1996) (SF-50s showing promotion and demotion, by themselves, sufficient to 

show nonfrivolous allegation for jurisdiction); see also Clark v. Dept. of the Interior, 68 M.S.P.R. 

53 (1995) (unsworn declarations submitted by agency give rise to questions of fact requiring 

jurisdictional hearing); see generally Scott v. Office of Personnel Management, 69 M.S.P.R. 211 

(1995) (“The Board has long held that relevant hearsay evidence is admissible in Board 

proceedings; the fact that it is unsworn merely goes to its weight and probative value. We find 

that an unsworn statement by an appellant in an initial appeal file is simply one form of hearsay 

evidence, i.e., a non-hearing statement offered to prove the truth of the matter asserted. The 

fact that it is unsworn may detract from its probative value, but it should still be considered as 

 

2 Under Board precedent, the “non-frivolous allegation” standard also applies in other 

adverse action cases, such as cases involving adverse actions based on last chance 

agreements, cases where the appellant alleges improper application of probationary employee 

removal procedures to a non-probationer, and cases of alleged discrimination based on marital 

status or partisan political reasons. See, e.g., Green-Brown v. Dept. of Defense, 118 M.S.P.R. 

327 (2012); Sandoval v. Dept. of Agriculture, 115 M.S.P.R. 71 (2010); Hamiter v. U.S. Postal 

Service, 96 M.S.P.R. 511 (2004).
3

admissible evidence. An appellant's unsworn statement might be viewed as more reliable than 

some other types of hearsay, because it is the appellant’s own account of what transpired, not a 

statement that someone else told the declarant about something the non-declarant saw or 

heard.”). NELA is concerned that this extra formality may prove an additional jurisdictional bar, 

especially for pro se appellants. As the Board has cited no rationale for deliberately changing 

this element of the jurisdictional standards, NELA suggests that 5 C.F.R. § 1201.4(s) be 

rephrased to avoid changing this standard inadvertently.

To address the two issues noted above, NELA suggests the following revisions to the proposed 

rule in relevant part (noting additions and deletions by underlining and strikethrough, 

respectively):

§ 1201.4 General definitions.

* * * * *

[...] (s) Nonfrivolous allegation. A nonfrivolous allegation is an assertion that, if 

proven, could establish the matter at issue. An allegation generally will be 

considered nonfrivolous when, under oath or penalty of perjury, an individual 

makes an allegation that: (1) Is more than conclusory; (2) Is plausible on its face; 

and (3) Is material to the legal issues in the appeal. Such allegations can be 

supported by evidence including, but not limited to, statements (sworn or 

unsworn), corroborative witness statements (sworn or unsworn), and 

documentary evidence.

[...]

§ 1201.56 Burden and degree of proof.

[...]

(b) Burden and degree of proof.

[...]

(2) Appellant. (i) The appellant has the ultimate burden of proof, by a 

preponderance of the evidence (as defined in § 1201.4(q)), with respect to:

(A) Issues of jurisdiction; (B) The timeliness of the appeal; and (C) 

Affirmative defenses. (ii) In appeals from reconsideration decisions of the Office 

of Personnel Management (OPM) involving retirement benefits, if the appellant 

filed the application, the appellant has the burden of proving, by a preponderance 

of the evidence (as defined in § 1201.4(q)), entitlement to the benefits. Where 

OPM proves by preponderant evidence an overpayment of benefits, an appellant 

may prove, by substantial evidence (as defined in § 1201.4(p)), eligibility for 

waiver or adjustment. 

[...]

(e) nonfrivolous allegations and jurisdictional hearings. An appellant who 

initiates an appeal (other than one covered by 5 C.F.R. § 1201.57) which 

involves one or more of the following jurisdictional issues shall be entitled to a 

jurisdictional hearing if the appellant makes a nonfrivolous allegation (as defined 

in § 1201.4(s)) with regard to the jurisdictional issue applicable to the particular 

type of appeal he or she has initiated: (i) constructive adverse action; (ii) 

discrimination on the basis of marital status or partisan political reasons in 

violation of 5 C.F.R. § 315.806(b); (iii) allegations that a last chance agreement 

was not violated in the case of an adverse action based upon alleged violation of 

a last chance agreement; and (iv) allegations that that an adverse action under 5 

C.F.R. §§ 315.804, 315.805 was applied to a non-probationer.
4

NELA is also concerned as to whether the Board would be able to make any modification to the 

“non-frivolous allegation” standard, even by regulation, because the “non-frivolous allegation”

precedent is based on the binding precedent from the Federal Circuit’s review of the statutes 

and OPM regulations which grant the Board jurisdiction. See, e.g., Stokes, 761 F.2d at 685-86 

(interpreting OPM regulation granting Board jurisdiction); see generally King v. Jerome, 42 F.3d 

1371, 1374 (Fed.Cir. 1994); Cowan v. U.S., 710 F.2d 803, 805 (Fed.Cir. 1983) (Board’s limited 

jurisdiction is not plenary, but instead set by the contours of statute and OPM regulation). As the 

Board itself has long taught, “the Board is without authority to broaden or narrow its appellate 

jurisdiction through the exercise of inherent power.” See, McNeese v. Office of Personnel 

Management, 61 M.S.P.R.70 (February 24, 1994)(emphasis added); accord Kaapana v. Dept. 

of the Interior, 1 M.S.P.R. 556 (February 27, 1980). Accordingly, the Board would ostensibly 

lack the inherent plenary authority to modify its chief reviewing court’s gloss on the Board’s 

jurisdiction-conferring statutes and OPM regulations (i.e., the ‘non-frivolous allegation’ 

standard).3

 

Again, NELA appreciates the opportunity to respond to the Solicitation of Public Comments, and 

wishes to thank the Board for its attention and consideration. 

Respectfully submitted, 

Terisa E. Chaw

Executive Director

 

3 Although the specific issue of the Board’s ability to dispose of the jurisdictional hearing 

methodology in favor of allowing appellants to proceed to a merits hearing based on making a 

nonfrivolous allegation was possibly left open by the Federal Circuit in Garcia v. Dept. of 

Homeland Security, 437 F.3d 1322, 1334-35, 1340-44 (Fed.Cir. 2006) (citing Bartels v. U.S. 

Postal Service, 98 M.S.P.R. 280, 285 (2005) and Lloyd v. Small Business Administration, 96 

M.S. P.R. 518, 526 (2004) (McPhie, concurring)), such a revision would not be consistent with 

the Board’s apparent purpose in the present Proposed Rule of codifying without changing the 

substantive jurisdictional standards. While NELA favors the Board ultimately moving to allowing 

appellants to proceed to a merits hearing based on making a nonfrivolous allegation, NELA

believes that such a laudable change would best be effectuated by a separate deliberate Board 

rulemaking to effectuate that change, rather than by means of inadvertent changes, in order to 

substantiate properly the change in the administrative rulemaking record so as to maximize its 

likelihood of being upheld on appeal.