1828 L Street, NW, Suite 600 

Washington, DC 20036 

PHONE (202) 789-0100 FAX (202) 789-0101 

www.passmanandkaplan.com 

Edward H. Passman (DC, MD) 

Joseph V. Kaplan (DC, MD) 

Senior Associates: 

Andrew J. Perlmutter (DC, MD) 

Amy L. Beckett (DC, MD) 

Adria S. Zeldin (DC) 

Associates: 

Daniel T. Raposa (DC) 

Johnathan P. Lloyd (DC, VA) 

Samir Yakhou (NY)* 

* 

April 28, 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: 

Passman & Kaplan, P.C. (P&K) 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. P&K appreciates the opportunity to comment on the proposals 

for additional modifications to the Board’s procedural regulations. As a general matter, P&K has 

supported the Board’s recent efforts of continuing reevaluation of internal processes in the 

interest of improving operations and the adjudication of appeals. P&K 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” state its 

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

analysis of the Board and the working group identify clarification and codification of the prior 

 

1

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

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

Practice in DC limited to matters and 

procedures before federal agencies
April 28, 2014 

Page 2 

caselaw as the goal of the proposed revision. For the reasons stated below, P&K believes that 

the current Proposed Rule effects such a substantive change. 

Under current caselaw 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 asses 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. As the Board has cited no rationale for deliberately eliminating the jurisdictional 

hearing, P&K 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 nonfrivolous 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 

 

2

 Under Board precedent, the nonfrivolous 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). 
April 28, 2014 

Page 3 

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 

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.”). P&K 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, P&K suggests that 5 C.F.R. § 1201.4(s) be rephrased 

to avoid changing this standard inadvertently. 

To address the two issues noted above, P&K 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) 
April 28, 2014 

Page 4 

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. 

As a more general matter, P&K is concerned as to whether the Board would be able to make any 

modification to the ‘non-frivolous allegation’ standard, even by regulation, because the ‘nonfrivolous 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 (and not of Board 

regulation). 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

 

 

 

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 P&K favors the Board ultimately moving to allowing 

appellants to proceed to a merits hearing based on making a nonfrivolous allegation, P&K 

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

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

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

likelihood of being upheld on appeal. 
April 28, 2014 

Page 5 

Again, P&K appreciates the opportunity to respond to the Solicitation of Public Comments, and 

wishes to thank the Board for its attention and consideration. 

Respectfully submitted, 

Edward H. Passman 

Founding Principal 

Passman & Kaplan, P.C. 

Joseph V. Kaplan 

Founding Principal 

Passman & Kaplan, P.C. 

Andrew J. Perlmutter 

Senior Associate 

Passman & Kaplan, P.C. 

JVK-EHP/ajp