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)* 

* 

December 6, 2013 

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 Solicitation of Public Comments, 78 Fed.Reg. 67,076-67,077 

Dear Mr. Spencer: 

Passman & Kaplan, P.C. (P&K) respectfully submits the following comments in response to the 

Merit Systems Protection Board’s Solicitation of Public Comments, published in the Federal 

Register on November 8, 2013, 78 Fed.Reg. 67,076-67,077. 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. 

However, we do not believe this particular proposed modification is necessary, and so we urge 

the Board to reject the working group’s Options A, B C and D. To the contrary, based on our 

experience in representing appellants before the Board, P&K strongly believes that some of the 

working group’s proposed changes are likely to prove deleterious to the federal sector appeals 

process. 

At present, the jurisdictional standards for establishing a non-frivolous allegation are well 

defined in case precedent of the Board and of the U.S. Court of Appeals for the Federal Circuit—

and indeed long predate the Civil Service Reform Act of 1978. See, e.g., Stokes v. Federal 

Aviation Administration, 761 F.2d 682, 685-86 (Fed.Cir. 1985) (citing Ralston Steel Corp. v. 

United States, 340 F.2d 663, 169 Ct.Cl. 119 (1965), which in turn cites cases, including Supreme 

Court precedent, dating back to 1906). The non-frivolous allegation standard is a wellestablished creature of the common law, and so P&K sees no special benefit—and instead a risk 

of harm—in trying to restate that common law concept in the Code of Federal Regulations. The 

Board already tasks its administrative judges with advising pro se appellants of their 

jurisdictional burdens and has done so for many years; that burden would not be reduced, as 

administrative judges would still have to provide just as much explanation to pro se appellants of 

the regulation as they have for the related precedent. Further, P&K is concerned as to whether 

the Board would be able to make any modification to the ‘non-frivolous allegation’ standard, 

Practice in DC limited to matters and 

procedures before federal agencies
December 6, 2013 

Page 2 

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 (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 courts’ gloss on the Board’s 

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

standard). 

P&K is most gravely concerned about the pernicious proposal in “Option C” to allow for 

summary judgment. P&K has long believed that summary judgment has no place in the Board’s 

proceedings, and we emphatically oppose any proposal to allow for or to extend summary 

judgment into Board proceedings. This move is a slippery slope toward ending the Board’s 

long-stated policy of giving appellants their fair ‘day in court’ by ensuring that cases go to a 

hearing whenever possible for a decision on the merits. If anything, Congress has recently 

clearly signaled to the Board its concerns about truncation of merits hearings on cases, even as to 

affirmative defenses. For example, in Section 114 of the Whistleblower Protection Enhancement 

Act of 2012 (WPEA), Pub.L. 112-199, Congress flatly rejected the prior practice of truncating 

hearings to skip over the underlying evidence of retaliatory animus in whistleblower cases in 

favor of solely focusing on the agency’s clear and convincing evidence that they would have 

taken the same action notwithstanding the protected whistleblowing. A mere year after 

Congress’ passage of WPEA Section 114, “Option C” would undo Congress’ work and provide 

another window for barring whistleblower reprisal claims from reaching merits hearings. As 

correctly noted elsewhere,1

 other elements of the WPEA’s legislative history show that Congress 

considered—and then expressly rejected—giving the Board summary judgment authority at this 

time, both in terms of the GAO report after four years’ study on the possible need for summary 

judgment in WPEA Section 116 and the removal of the summary judgment provision from an 

earlier version of the bill. Just as summary judgment is clearly inappropriate in WPA cases, it is 

similarly inappropriate in the other areas of Board jurisdiction where the appellant has the burden 

of proof that are identified in proposed new 5 C.F.R. § 1201.5(c) in “Option C” (e.g., USERRA 

cases, VEOA cases, cases where probationers allege discrimination on marital status or partisan 

political affiliation). 

P&K believes that the Board has not demonstrated delay at the administrative judge level that 

would require a draconian fix such as creating a new summary judgment mechanism to hasten 

the disposition of appeals. The Board’s standard is for administrative judges to decide appeals 

within 120 days. See, e.g., MSPB Handbook for Administrative Judges, Ch. 1, § 2. According 

to the Board’s own performance statistics, average case processing time for initial decisions has 

long been well below 100 days—and actually decreased by one day between FY 2011 and FY 

                                                            

1

 See, e.g., MSPB Watch, “Does MSPB Have the Discretion to Implement Summary Judgment 

Procedures Via Regulation?”, November 13, 2013, available at http://mspbwatch.org/2013/11/13/doesmspb-have-the-discretion-to-implement-summary-judgment-procedures-via-regulation/. 
December 6, 2013 

Page 3 

2012.2 While those statistics will naturally be affected in FY 2013 and FY 2014 as a one-off 

result of the FY 2013 Sequester, the long-term statistics do not show any long-term inability to 

meet the Board’s own 120 day deadline at the administrative judge level in most cases. Further, 

the impact of summary judgment under “Option C” would likely be statistically marginal; the 

cases where the appellant has the burden of proof that are identified in proposed new 5 C.F.R. § 

1201.5(c) in “Option C” on all claims only constitute roughly 20% of the total cases decided at 

the administrative judge level in FY 2012—and only roughly 10% of those cases adjudicated on 

their merits.3 Such claims are also adjudicated as affirmative defenses in Chapter 75 and Chapter 

43 cases. However, Chapter 75 and Chapter 43 cases must go to hearing in any event to decide 

the merits of their underlying adverse actions—and Congress has recently clearly rejected prior 

tactics used to sever such affirmative defenses from merits hearings, presumably on the excuse 

of expediency. See, e.g., Pub.L. 112-199 at § 114; see also discussion, supra. Undoubtedly, 

some percent of summary judgment decisions will be appealed to the full Board, reversed, and 

remanded for hearing. Thus, the summary judgment process will only lengthen the litigation 

process and twice place before the administrative judge and the Board what could only have 

been before them once. 

 

Summary judgment in employment law matters is daunting to get past in order to get to hearing, 

even for parties represented by counsel.4

 P&K believes that, for the Board’s large portion of pro 

se appellants (which, according to page 3 of the “options” report attached to the Solicitation of 

Public Comments, constitute “more than half of the appeals filed in the Board’s regional and 

field offices”), presenting the legal argument and detailed factual proofs necessary to defeat 

summary judgment would present a nearly-insurmountable obstacle to a merits hearing. 

Authorizing summary judgment would massively increase the overall amount of motions 

practice at the trial level, which would likely severely delay proceedings. Further, P&K expects 

that allowing summary judgment would greatly increase the workload of the Board itself by 

massively increasing the number of Petitions for Review; with each grant of summary judgment 

potentially resulting in multiple Petitions for Review: review of the summary judgment decision 

and then, after remand, review on the merits after hearing. Such repetitive back-and-forth 

appeals practice is not at all unusual in federal-sector EEO cases. Further, in order to create a 

written record which is detailed enough to allow their claims to survive summary judgment, 

appellants will be forced to engage in far more expansive discovery and deposition practice 

                                                            

2 See MSPB Annual Performance Report (FY 2012) and Plan (FY 2013 (Final) – 2014 

(Proposed)), April 10, 2013, at 17 (average case processing time to initial decision between 83 and 94 

days between FY 2007 and FY 2012, and specifically 93 days in FY 2012 versus 94 days in FY 2011), 43 

(81% of initial appeals were processed in 120 days or less); MSPB Performance and Accountability 

Report for FY 2011, November 15, 2011, at 24 (average case processing time to initial decision between 

83 and 94 days between FY 2006 and FY 2011). 

3

 See MSPB Annual Report for FY 2012, January 31, 2013, at 36-37. 

4

 See, e.g., Hon. Nancy Gertner (ret.), “The Virtual Repeal of Kennedy-Johnson Administrations' 

'Signature Achievement',” Huffington Post, November 27, 2013, available at 

http://www.huffingtonpost.com/judge-nancy-gertner/the-virtual-repeal-of-kennedy-johnsonadministrations-signature-achievement_b_4311759.html; see also Prof. Richard L. Steagall, “The Recent 

Explosion of Summary Judgments Entered by the Federal Courts Has Eliminated the Jury from the 

Judicial Power,” 33 S. ILL. U. L.J. (Spring 2009) at 498 (“An expanded survey of employment 

discrimination cases from 1979 to 2006 shows that plaintiffs succeed in only 15% of the federal 

employment discrimination cases. Plaintiffs in other federal cases succeed in 51% of the time. This has 

resulted in a 37% decline in employment discrimination cases brought in federal courts from 1997–

2007.”), available at http://www.law.siu.edu/journal/33spring/5%20-%20Steagall%20-%20redo.pdf. 
December 6, 2013 

Page 4 

(which will also likely result in increased discovery motions practice). This increase in 

discovery and in motions practice would greatly multiply the costs of proceedings at the Board 

for all parties. Further, through increasing the number of Petitions for Review, summary 

judgment would swamp the Board and its Office of Appeals Counsel, which is already facing 

increasing delays in processing Petitions for Review.5 This situation risks creating a Petition for 

Review workload that might imperil one of the present Board’s signature policy reforms: the 

issuance of substantive nonprecedential decisions to guarantee all parties a fully-reasoned and 

explained decision from the Board on a Petitions for Review (replacing the former nonexplanatory affirmance decisions). 

P&K fears that such increased difficulty and costs, and such increased barriers to pro se 

appellants, may further undercut the public perception of the Board as a fair forum for hearing 

whistleblower reprisal claims and other matters—a perception already challenged by the fact that 

less than 4% of all appeals received a merits decision favorable to the appellant in FY 2012, 

versus the over 71% of cases which were either dismissed or where a merits finding favored the 

agency.6 P&K would remind the Board that Congress made clear in the WPEA that it wants 

whistleblower reprisal claims heard on their merits, even going to the extent of stripping the 

Federal Circuit of its exclusive appellate jurisdiction over WPA claims due to prolonged judicial 

resistance to giving those merits hearings. See, e.g., Pub.L. 112-199, § 108; S.Rep. 112-155 at 1-

2, 6, 11-12. 

P&K also notes that the creation of summary judgment mechanisms is unnecessary because the 

Board has a robust settlement and ADR program where deficiencies in each parties’ case can be 

candidly discussed, often leading to settlements which voluntarily obviate the need for hearing. 

In such situations, appellants’ cases are concluded but without appellants feeling that they have 

been denied their ‘day in court.’ For all these reasons, summary judgment would not be a 

helpful addition to the Board’s procedural regulations. 

That said, P&K does applaud the MSPB working group’s attempts to try to resolve the 

jurisdictional issues associated with ensuring the enforceability of settlement agreements reached 

in all Board appeals. We, however, believe that an alternate means should be used to ensure that 

enforceability. Other administrative tribunals, such as the EEOC, follow the common practice of 

accepting federal sector settlement agreements for enforcement without requiring exhaustive 

jurisdictional standards to be met—even when the case settles at the EEO informal 

complaint/precomplaint stage, for example. See, e.g., 29 C.F.R. §§ 1614.504(a), 1614.603. 

                                                            

5

 See MSPB Annual Performance Report (FY 2012) and Plan (FY 2013 (Final) – 2014 

(Proposed)), April 10, 2013, at 19. 

6

   See MSPB Annual Report for FY 2012, January 31, 2013, at 36, 38. 
December 6, 2013 

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