July 23, 2012 

Via Email 

William D Spencer 

Clerk of the Board 

Merit Systems Protection Board 

1615 M Street NW 

Washington DC 20419 

Re: Proposed Amendments to MSPB Rules of Practice and Procedure 

 77 Fed. Reg. 33663 (June 7, 2012) 

Dear Mr. Spencer: 

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

the proposed rules commencing on page 33663 in the Federal Register (Vol. 77, No. 110), 

dated Thursday, June 7, 2012. The proposed changes involve the election of remedies for 

appellants alleging that they have been subjected to otherwise appealable personnel actions 

(suspensions of 15 days or more, demotions, or removals) because of whistleblowing and the 

burden of proof that would apply in establishing jurisdiction in an Individual Right of Action 

(IRA) appeal. 

Election of Remedies 

At the proposal stage of an adverse action, the employee has limited options for 

redress. Whistleblowers facing proposed adverse actions can seek assistance from OSC by 

filing a claim under 5 U.S.C. § 1214 alleging that the proposal was a threat of a personnel 

action, which, if retaliatory, would violate the whistleblower protections in 5 U.S.C. § 

2302(b)(8). In such a case OSC will seek to have the proposal rescinded. However, if the 

proposed action results in a final decision of a 15-day suspension or more, demotion, or 

removal, these new regulations would require the employee to withdraw the OSC complaint 

and file an Otherwise Appealable Action (OAA) appeal with the Board to preserve the right 

to assert certain affirmative defenses and require the agency to bear the burden of proof in 

proving its charges. 

OSC is concerned that these proposed regulations will result in significant resource 

inefficiencies, i.e., OSC will devote significant resources and staff to investigate proposed 

retaliatory actions, only to have the matter withdrawn once the proposed action becomes 

final. Alternatively, to avoid such inefficiency and misallocation of resources, OSC may 

decline to pursue proposed retaliatory actions, which could undermine protection for 

whistleblowers. 

U.S. OFFICE OF SPECIAL COUNSEL 

1730 M Street, N.W., Suite 218 

Washington, D.C. 20036-4505 

202-254-3600 
Page 2 

To lessen the impact of the proposed regulations on OSC’s whistleblower 

enforcement program, we recommend that the Board include in its regulations a provision 

that permits an employee who has challenged a proposed personnel action in an OSC 

complaint prior to the issuance of a final agency decision to continue to pursue that 

complaint under 5 U.S.C. § 1214, and not have the complaint considered an election of 

remedies under 5 C.F.R. §§ 1201.21 and 1209.2, should the employee later file an appeal 

under 5 U.S.C. § 7701. 

This provision would enhance OSC’s ability to protect whistleblowers. Without such 

a provision, OSC would be faced with the nearly impossible task of having to complete its 

investigation before the employee is forced to elect a remedy under the new regulations. 

And, it is likely that OSC would be unable to help whistleblower complainants who are 

victims of retaliation before the time to elect a remedy expires under 5 U.S.C. § 7701. Given 

the time it takes to adequately conduct an investigation, it is only in the exceptional case that 

OSC would be able to make its statutory finding that whistleblower retaliation had occurred 

before the time for filing a Board appeal has expired. Even where OSC completes its task 

before the statutory time period has run, OSC’s own statute requires it to provide the 

employer a reasonable time to review OSC’s findings and respond before OSC may initiate 

its own corrective action on behalf of the whistleblower under 5 U.S.C. § 1214(b)(2)(C). 

We recognize that some OSC complainants may file an appeal under 5 U.S.C. § 7701 

while OSC continues to investigate the validity of the underlying proposed action for 

whistleblower retaliation. If past experience holds, it is unlikely that this overlap would have 

any significant impact on the Board’s orderly processing of appeals involving whistleblower 

retaliation claims. We are aware of no case decided under the WPA where the overlap of 

jurisdiction between our agencies has resulted in separate appellate and original jurisdiction 

filings. Moreover, under traditional preclusion doctrines, a whistleblower who is 

unsuccessful in an OAA appeal could not easily collaterally attack that result through an 

individual right of action appeal were we to subsequently close the OSC complaint. 

Sabersky v. Department of Justice, 91 M.S.P.R 210 (2002), aff’d, 61 F. App’x 676 (Fed. Cir. 

2003) (unpublished). 

Burden of Proof 

OSC also suggests some further clarification of the burden that IRA appellants must 

meet to establish jurisdiction so as to avoid the dismissal of meritorious IRA appeals at the 

jurisdictional stage. In particular, the Board could clarify in the Summary of Changes that 

administrative judges should not weigh the evidence resolving conflicting assertions of 

jurisdiction, consistent with the recent holding in Ingram v. Department of the Army, 114 

M.S.P.R. 43 (2010): 

In assessing whether the appellant has made nonfrivolous allegations, the 

administrative judge may consider the agency’s documentary evidence; 

however, to the extent the agency’s evidence constitutes mere factual 

contradiction of the appellant’s allegations, the administrative judge may not 

weigh evidence and resolve conflicting assertions, and the agency’s evidence 
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may not be dispositive. Weed v. Social Security Administration, 113 M.S.P.R. 

221, ¶ 19 (2010). Any doubt or ambiguity as to whether the appellant made 

nonfrivolous jurisdictional allegations should be resolved in favor of finding 

jurisdiction. Drake v. Agency for International Development, 103 M.S.P.R. 

524, ¶ 11 (2006); see also Swanson v. General Services Administration, 110 

M.S.P.R. 278, ¶ 11 (2008) (any doubt as to whether the appellant made a 

nonfrivolous allegation of wrongdoing should be resolved in favor of finding 

jurisdiction). 

Ingram, 114 M.S.P.R. 43, ¶ 10. 

In addition, the Board could clarify that establishing a nonfrivolous allegation of 

jurisdiction in an IRA appeal merely requires that the appellant show that the employee made 

a protected disclosure that was a contributing factor to the personnel action taken or 

proposed,1 and specifically that the test for a non-frivolous allegation of a protected 

disclosure may be satisfied if “a disinterested observer with knowledge of the essential facts 

known to and readily ascertainable by the employee could reasonably conclude that the 

actions of the government evidence wrongdoing as defined by the WPA.”2 The test for a 

non-frivolous allegation of contributing factor may be satisfied if the protected disclosure 

was a “factor which, alone or in connection with other factors, tends to affect in any way the 

outcome of the decision.”3 Alternatively, the test for a non-frivolous allegation of 

contributing factor may be satisfied by an allegation that “the official taking the personnel 

action knew of the disclosure, and that the personnel action occurred within a period of time 

such that a reasonable person could conclude that the disclosure was a contributing factor.”4

This clarification would illustrate for appellants and practitioners that the legal burden 

to establish the merit-based jurisdictional elements of a whistleblower case is minimal. It 

also would help avoid any potential confusion about application of the heightened pleading 

standards established by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 

(2007) and Ashcroft v. Iqbal, 556 U.S. ----, 129 S .Ct. 1937 (2009), which OSC contends do 

not apply in proceedings before the Board. Indeed, the Department of Labor’s 

Administrative Review Board, which adjudicates claims under approximately twenty-one 

similar whistleblower protection statutes, has expressly declined to apply the Iqbal/Twombly 

heightened pleading standard in Sarbanes-Oxley whistleblower retaliation cases. In Sylvester 

v. Parexel Intern’l LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-39 and 42 (ARB May 25, 

2011), the ARB held that that the ALJ erred in applying the heightened Iqbal/Twombly 

plausibility pleading standard, noting that “SOX claims are rarely suited for Rule 12 

dismissals” in that “[t]hey involve inherently factual issues such as ‘reasonable belief’ and 

issues of ‘motive.’” Sylvester, ARB No. 07-123 at 13. Similarly, an assessment of whether 

 

1 Stoyanov v. Dep't of the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007) 

2 Usharauli v. Dep’t of Health & Human Servs., 116 M.S.P.R. 383, ¶ 21 (2011) (citing 

Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999)) (emphasis added). 

3 Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed.Cir. 1993). 

4 Usharauli, 116 M.S.P.R. 383, ¶ 31 (citing 5 U.S.C. § 1221(e)(1); Lane v. Dep’t of 

Homeland Security, 115 M.S.P.R. 342, ¶ 34 (2010)) (emphasis added).
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an IRA appellant has established jurisdiction involves inherently factual issues, including 

motive for taking a personnel action, and therefore the MSPB should not impose an undue 

burden on IRA appellants to establish jurisdiction. 

 Thank you for the opportunity to comment on the proposed regulations. 

U.S. Office of Special Counsel