establish jurisdiction in terms that most appellants can understand and follow,
particularly through the use of examples and avoidance of legal terminology, much as
the Board did when it amended the regulation involving elections of remedies. And |
urge that its efforts be particularly directed to IRA as well as constructive adverse
action appeals.

Thanking you for your consideration, | am
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Peter B Broida



Peter B. Broida

Attorney at Law 1840 Wilson Blvd., Suite 203
Arlington, VA 22201
(703) 841-1412
(703) 841-1006 (fax)
Peterbroida@gmail.com

April 7, 2014

William D. Spencer

Clerk

Merit Systems Protection Board
1615 M St., NW

Washington, DC 20419

Re: Proposed Rule of April 3, 2014, Concerning Jurisdiction
By e-mail PDF
Dear Mr. Spencer:

In response to the rulemaking notice of April 3, | offer comments based on my
experience and not upon the supposition that | could draft a regulation better than
what has been proposed.

The attempt to better define by regulation often ambiguously-stated statutory terms
is laudable.

| urge, however, that as good authors you keep your readers in mind. They are never
far away.

Most appellants are pro se. Many represented appellants appear through counsel with
little experience in Board appeals. Your regulation should be tailored to be of maximum
assistance to pro se appellants, and your efforts should be devoted to ensuring that
specialist lawyers who serve as administrative judges devote their time and attention
to educating pro se appellants and counsel with limited past Board involvement.

Of particular significance are Individual Right of Action cases and appeals involving
allegedly constructive adverse actions.

The proposed regulation adopts a dual approach: the clarification of the regulatory
requisites of jurisdiction and a requirement that administrative judges explain those
requisites in their show cause and acknowledgment orders.



We turn first to the regulation.

At Section 1201.4, the regulation states that jurisdiction is predicated upon a legally
sufficient nonfrivolous allegation, further defined to be an allegation under oath or
penalty of perjury that is more than conclusory, plausible on its face, and material to
the legal issues in the appeal.

Taking these elements point by point, | suggest:

A.

Allegation under oath or penalty of perjury: explain in the regulation how
this is done, such as a written statement under 28 USC 1746, giving an
example of the necessary statutory language. And you need to clarify
whether information contained in an appeal, which is submitted under the
Federal False Statements Act, qualifies as a sufficient allegation under
oath or penalty of perjury, or whether something else is required.

More than conclusory: the question of what constitutes an assertion that
is“more than conclusory” is in the mind of the administrative judge. |
have seen detailed allegations of whistleblower reprisal or constructively
adverse resignations or demotions dismissed by administrative judges as
merely “bald statements,” leading to what should have been an
unnecessary petition for review or Federal Circuit case, with the
attendant delay and expense. The Board needs to set out by example
what constitutes more than a conclusory statement.

Plausible on Its Face: if an allegation is more than conclusory, it should
be accepted as plausible on its face; in other words, the requirement is
duplicative unless the intent of the Board is to require the appellant to
somehow relate a nonconclusory allegation to a legal conclusion that
would support an IRA or constructive adverse action case. If the intent
of the Board is to require enunciation by the appellant of the legal
standard, then say so. Spell out the several statutorily defined forms of
personnel actions and prohibited personnel practices that constitute a
potential IRA case, and tell the appellant specifically that he or she needs
to explain how the nonconclusory allegations demonstrate a personnel
action, a protected disclosure, necessary knowledge by a manager, and
the necessary requisites for administrative exhaustion required for an IRA
case. Do the same for constructive adverse action appeals. Give
examples.

Is Material to the Legal Issues in the Appeal: The pro se appellant is not
too likely to understand what the legal issues are in an IRA appeal, so
simply generally referring to the term does not assist the pro se or the
representative who has little experience with complex jurisdictional issues
in IRA cases. So, to educate the pro se, state what the legal issues are



in an IRA case and tell the pro se the need to explain the connection
between the nonconclusory allegations and the legal issues in the appeal,
as defined by the Board regulation. Do the same for constructive adverse
action appeals. Give examples.

Turning to the role of the administrative judge, the show cause orders or
acknowledgment orders that | see ordinarily consist of general statements of the law
governing IRA or constructive adverse action cases, followed by one or more citations
to cases from the Board or Federal Circuit, without placing the excerpts into the
context of the allegations of the individual appeal. The language that | see is not plain
English calculated to be understood in the context of a particular case. Lawyers
familiar with these cases ignore the language. Pro se appellants very likely have no
comprehension of what the language means in terms of what they must provide to the
Board to survive a jurisdictional challenge.

To avoid the difficulties presented by a recitation of relatively impenetrable citations
by judges who are cutting and pasting into their orders language from other Board
decisions or prior orders in similar cases before them, the judges should be required to
directly engage in an interactive exchange with pro se appellants particularly to draw
out from them the information necessary, assuming it exists, to establish jurisdiction.
The job of the judges is made considerably easier if the Board issues a regulation that
does not use legal terminology, such as “conclusory” or “material” and instead plainly
informs appellants how to go about explaining the facts and relating those facts to the
legal requirements that are presented in plain English in the regulation. Even with the
best-drafted regulation, there will be some people who cannot follow the regulation,
and there will be more people who will try to follow the regulation but simply don’t
have the facts to establish a case. That is a problem in dealing with any pro se
population, but it does not excuse the lack of regulatory clarity.

The Board must make plain in its regulations that the responsibility for establishing
jurisdiction in any class of cases before it is not limited to appellants. When agencies
have information bearing upon either the timeliness or jurisdiction of the case, the
Board must by its own regulations ensure that the agency supplies that information in
response to the appeal and in response to a show cause order issued by a judge.
Further, the Board must clarify its processes so that submissions in response to show
cause orders allow for, and specifically state that they allow for, a reply to new
material submitted on the deadline for submissions. Neither appellants nor agencies
should have to file petitions for review in order to place before the Board responsive
material that should have been considered by the judge.

The Federal Circuit noted the slippery nature of the term “jurisdiction.” Spruill v.
MSPB, 978 F.2d 679, 686 (Fed. Cir. 1992). Judge Newman of that court was critical
in a dissent of MSPB form “orders” that confuse rather than inform. Mendoza v.
MSPB, 966 F.2d 650 (Fed. Cir. 1992). | urge the Board, particularly since it so
infrequently amends its regulations, to craft a regulation defining how appellants