Mr. William Spencer, 

My name is Jim Fox. I am a supervisor with the U.S. Department of the 

Treasury, Bureau of the Fiscal Service, Office of Administrative Services, 

Human Resources Operations Division, Franchise Labor and Employee Relations 

Branch. 

After reviewing the four options as proposed by the MSPB employees, I have 

just a few comments and preferences. Certainly under Option A and B, it makes 

perfect sense to provide the current definitions as provided under 5 CFR 

1201.56, Burdens of Proof, for Substantial and Preponderance, under 5 CFR 

1201.4 along with the existing definitions. I however support a modified Option 

D, incorporating the definitions under Option A and B. I have summarized my 

comments below 

In addition, under Option B, considering that many appellants represent 

themselves and to further clarify for attorneys and other representatives that are 

not as familiar with the Board proceedings, the proposed regulation change has 

the administrative judge inform the parties of the requirements for the burden of 

proof of the matter at issue. The MSPB employee summary analysis of this 

proposed regulation explains this as simply codifying which has typically been 

common practice. I support this effort. 

Under Option C, it furthers the advancement of jurisdictional determinations, by 

also providing a specific definition of "Non-frivolous allegation" and also 

further defining under 5 CFR 1201.56 (b) Matters that must be proven by a 

preponderance of the evidence. However, I do not find with the proposed 

regulation changes matters that must be proven by substantial evidence 

(performance cases under 432). Is there some reason why this issue is absent 

under this regulatory change? I suggest that substantial evidence be included 

under Burden and Degree of Proof, Scope of Review 1201.56. 

I do support further defining under 5 CFR 1201.56, what matters are limited 

under this part for IRA, VEOA and USSERA appeals. 

Furthermore, under Option C, under 5 CFR 1201.5 (c) Jurisdictional 

requirements relating to the merits of an appeal, (4) and (5), address appeals 

challenging the termination of probationary employment under 5 CFR 315.806 

(b) under maritial status and political affiliation and 5 CFR.315.806 (c) 

allegation that the action was taken for pre-appointment reasons and the agency 

did not comply with the procedural requirements of 315.805. However, all of 

this is in regards to the competitive service under 315. However, I cannot find 

any regulatory guidance applying to trial period employees under the Excepted 

Service. I would recommend some guidance from OPM and MSPB on this issue 

of jurisdiction. The regulations are silent in regards to this issue. 
In addition, absent Congressional guidance through statute or from OPM 

regulations, defining jurisdictional determinants will provide a clearer avenue for 

agencies and appellants to determine whether to advance to the appeal process. 

It certainly appears to aid an agency's effort to argue jurisdiction and provide 

definitive measure in which to do so. However, in light of this particular issue, I 

prefer incorporating this under Option D. 

Under Option D, I especially support the regulation change 1201.24 (d) where it 

stipulates the appellant is entitled to a full evidentiary hearing only when such a 

hearing is necessary to resolve genuine issues of material fact as to matters on 

which the appellant has the burden of proof. This regulatory change would 

require administrative judges to not only be expected to determine whether the 

appellant has raised a genuine issue of material fact, but also to explore whether 

the appellant can articulate a genuine issue of material fact that might require an 

evidentiary hearing. If the appellant could articulate a genuine issue of material 

fact, the judge would schedule an evidentiary hearing. If the appellant were 

unable to articulate such an issue, the judge would issue an initial decision based 

on the existing record. This would provide a much needed change to the already 

crowed docket and provide agencies a more efficient means to address 

jurisdictional matters before the board. It would provide a greater means of 

utilizing the resources of agencies when addressing these issues and certainly 

expedite the process and providing greater cost savings to agencies, including the 

MSPB. 

I appreciate the chance to provide feedback to these proposed regulatory 

changes. I equally appreciate your time in considering my comments and 

suggestions. Thanks. 

Jim Fox 

Supervisory

Human Resources Specialist