Options for revising the Board’s 

regulations governing the establishment of 

MSPB jurisdiction over an appeal.

 Page

Option A 2

Option B 5

Option C 11

Option D 27

Note: These four options were developed by a working group 

comprised of MSPB employees. This document has been posted on the 

MSPB website to facilitate public review and comment pursuant to a 

Notice published in the Federal Register on November 8, 2013. 78 FR 

67076. The discussion and analysis of the options contained herein 

reflect the views of the working group and its members, not the Board. 

The Board has not expressed a preference for any of the four options. 
2

Option A

Regulatory Changes:

1. Amend § 1201.4, General Definitions, by adding four new definitions as 

follows:

§ 1201.4 General definitions

* * *

(p) Substantial evidence. The degree of relevant evidence that a reasonable 

person, considering the record as a whole, might accept as adequate to 

support a conclusion, even though other reasonable persons might disagree. 

This is a lower standard of proof than preponderance of the evidence.

(q) Preponderance of the evidence. The degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as 

sufficient to find that a contested fact is more likely to be true than untrue.

(r) Harmful error. Error by the agency in the application of its procedures 

that is likely to have caused the agency to reach a conclusion different from 

the one it would have reached in the absence or cure of the error. The 

burden is upon the appellant to show that the error was harmful, i.e., that it 

caused substantial harm or prejudice to his or her rights.

(s) Nonfrivolous allegation. A nonfrivolous allegation is an assertion that, 

if proven, could establish the matter at issue. When a fact asserted is 

within the personal knowledge of the individual making the allegation and 

the allegation is credible on its face, in general the allegation will be 

considered nonfrivolous. In general, an allegation will not be considered 

nonfrivolous when: The fact asserted is not within the personal knowledge 

of the individual making the allegation and is unsupported by evidence in 

the record; the assertion is unsupported and contradicted by evidence in the 

record; or the assertion is immaterial to the legal issues in the appeal.

2. Amend § 1201.56 Burden and Degree of proof; affirmative defenses as 

to read as follows:

§ 1201.56 Burden and Degree of proof; affirmative defenses
3

(a) Generally, the agency bears the burden of proof by a preponderance of 

the evidence. Common exceptions include cases brought under the 

Whistleblower Protection Act and Whistleblower Protection Enhancements 

Act, the Uniformed Services Employment and Reemployment Rights Act of 

1994, and the Veterans Employment Opportunities Act of 1998. The 

appellant bears the burden of proof by a preponderance of the evidence in 

appeals from final or reconsideration decisions on applications seeking 

retirement benefits. An appellant who has received an overpayment from 

the Civil Service Retirement and Disability Fund has the burden of 

proving, by substantial evidence, eligibility for waiver or adjustment. 

Individual elements and standards of proof apply to each type of appeal 

listed at 5 C.F.R. § 1201.3. The administrative judge will inform the 

parties of the proof required in each case.

(b) The appellant bears the burden of proof, generally by a preponderance 

of the evidence, on issues of jurisdiction, timeliness, and all affirmative 

defenses. The administrative judge will inform the parties of the proof 

required as to each defense.

Summary and Analysis:

The purpose of Option A is to put forward a regulation that informs 

the parties of only the general rules the Board follows in allocating burdens 

of proof. Over time, the Board’s law as to issues of both jurisdiction and 

merits, as well as with respect to affirmative defenses, has evolved. By 

setting out only the general framework for determinations on these topics, 

the Board does not limit or preclude its authority to determine its 

jurisdiction and the burdens of proof it applies, and therefore does not set a 

regulatory hurdle in the way of changing these rules when changed 

circumstances, changes in the law, or other valid reasons require the 

modification of current law. The Board cannot create jurisdiction where it 

was not granted by Congress or the Office of Personnel Management, but 

on those matters on which it has discretion, this regulation allows it to 

exercise that discretion under the law.

The regulation also states that the administrative judge will inform 

the parties of the requirements for proof of the matter at issue. This 

codifies current practice and Board case law. More than half of the appeals 

filed in the Board’s regional and field offices are filed by pro se appellants, 

those appearing without a representative. Because Board law may be 

complex, these appellants often find themselves overwhelmed by the 

lengthy formal written explanations necessary to fully inform them of their 
4

burdens under the law. Administrative judges in such cases make great 

efforts to explain these burdens and to provide clarification to them. 

Option A is proposed with this in mind. By providing only a brief 

statement of law in the regulation, the Board does not risk confusing 

appellants who are unfamiliar with Board law. Rather, it assures them that 

the administrative judge will assist them in understanding what is required 

in all cases.

Option A, like Option B, would also move definitions from section 

1201.56 to section 1201.4, the General Definitions section, and would add 

a definition of “nonfrivolous allegation,” for the reasons stated in the 

explanation of that Option. 
5

Option B

Regulatory Changes:

1. Amend § 1201.4 General definitions, by adding four new definitions as 

follows:

§ 1201.4 General definitions

* * *

(p) Substantial evidence. The degree of relevant evidence that a reasonable 

person, considering the record as a whole, might accept as adequate to 

support a conclusion, even though other reasonable persons might disagree. 

This is a lower standard of proof than preponderance of the evidence.

(q) Preponderance of the evidence. The degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as 

sufficient to find that a contested fact is more likely to be true than untrue.

(r) Harmful error. Error by the agency in the application of its procedures 

that is likely to have caused the agency to reach a conclusion different from 

the one it would have reached in the absence or cure of the error. The 

burden is upon the appellant to show that the error was harmful, i.e., that it 

caused substantial harm or prejudice to his or her rights.

(s) Nonfrivolous allegation. A nonfrivolous allegation is an assertion that, 

if proven, could establish the matter at issue. When a fact asserted is 

within the personal knowledge of the individual making the allegation and 

the allegation is credible on its face, in general the allegation will be 

considered nonfrivolous. In general, an allegation will not be considered 

nonfrivolous when: The fact asserted is not within the personal knowledge 

of the individual making the allegation and is unsupported by evidence in 

the record; the assertion is unsupported and contradicted by evidence in the 

record; or the assertion is immaterial to the legal issues in the appeal.

2. Amend § 1201.56 Burden and degree of proof; affirmative defenses, by 

adding a new subsection (a); renumbering existing subsections (a) and (b); 

deleting the definitions at existing subsection (c) (they have been moved to 

§ 1201.4); and making related conforming changes:

§ 1201.56 Burden and degree of proof
6

(a) Applicability. This section does not apply to the following types of 

appeals:

(1) An individual right of action appeal under the Whistleblower 

Protection Act, 5 U.S.C. § 1221;

(2) An appeal under the Veterans Employment Opportunities Act, 5 

U.S.C. § 3330a(d); and

(3) An appeal under the Uniformed Services Employment and 

Reemployment Rights Act, 38 U.S.C. § 4324, in which the appellant 

alleges discrimination or retaliation in violation of 38 U.S.C. § 4311.

(b) Burden and degree of proof.

(1) Agency: Under 5 U.S.C. 7701(c)(1), and subject to the exceptions 

stated in paragraph (c) of this section, the agency action must be 

sustained if: (i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 

and is supported by substantial evidence (as defined in § 1201.4(p) 

of this part); or (ii) It is brought under any other provision of law or 

regulation and is supported by a preponderance of the evidence (as 

defined in § 1201.4(q) of this part).

(2) Appellant:

(A) The appellant has the burden of proof, by a preponderance 

of the evidence (as defined in § 1201.4(q) of this part), with 

respect to:

(i) Issues of jurisdiction;

(ii) The timeliness of the appeal; and

(iii) Affirmative defenses.

(B) In appeals from reconsideration decisions of the Office of 

Personnel Management 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) of this part), entitlement to the benefits. An 

appellant who has received an overpayment from the Civil 

Service Retirement and Disability Fund has the burden of 
7

proving, by substantial evidence (as defined in § 1201.4(p) of 

this part), eligibility for waiver or adjustment.

(c) Affirmative defenses of the appellant. Under 5 U.S.C. 7701(c)(2), the 

Board is required to overturn the action of the agency, even where the 

agency has met the evidentiary standard stated in paragraph (b) of this 

section, if the appellant:

(1) Shows harmful error in the application of the agency's procedures 

in arriving at its decision (as defined in § 1201.4(r) of this part);

(2) Shows that the decision was based on any prohibited personnel 

practice described in 5 U.S.C. 2302(b); or

(3) Shows that the decision was not in accordance with law.

3. Redesignate § 1201.57 as § 1201.58 and redesignate § 1201.58 as 

§ 1201.59 and add a new § 1201.57 as follows:

§ 1201.57 Establishing jurisdiction in appeals not covered by 

§ 1201.56; burden and degree of proof; scope of review

(a) Applicability. This section applies to the following types of appeals:

(1) An individual right of action (IRA) appeal under the 

Whistleblower Protection Act, 5 U.S.C. § 1221;

(2) An appeal under the Veterans Employment Opportunities Act 

(VEOA), 5 U.S.C. § 3330a(d); and

(3) An appeal under the Uniformed Services Employment and 

Reemployment Rights Act (USERRA), 38 U.S.C. § 4324, in which 

the appellant alleges discrimination or retaliation in violation of 38 

U.S.C. § 4311.

(b) Matters that must be proven by a preponderance of the evidence. An 

appellant who initiates an appeal covered by this section has the burden of 

proof, by a preponderance of the evidence (as defined in § 1201.4(q) of this 

part), on the following matters:

(1) Exhaustion of a statutory complaint process that is preliminary to 

an appeal to the Board;
8

(2) Timeliness of the appeal (IRA appeals and VEOA appeals only);

(3) Standing to appeal, when disputed by the agency or questioned 

by the Board. (An appellant has “standing” when he or she falls 

within the class of persons who may file an appeal under the law 

applicable to the appeal.); and

(4) The merits of the appeal, if the appeal is within the Board’s 

jurisdiction and was timely filed.

(c) Matters that must be supported by nonfrivolous allegations. Except for 

matters described in subsections (b)(1) and (b)(3) above, in order to 

establish jurisdiction an appellant who initiates an appeal covered by this 

section must make nonfrivolous allegations (as defined in § 1201.4(s) of 

this part) with regard to the substantive jurisdictional elements applicable 

to the particular type of appeal he or she has initiated.

(d) Scope of the appeal. Appeals covered by this section are limited in 

scope. The Board will not consider matters described at 5 U.S.C. 

§ 7701(c)(2) in an appeal covered by this section.

(e) Notice of jurisdictional, timeliness, and merits elements. The 

administrative judge will provide notice to the parties of the specific 

jurisdictional, timeliness, and merits elements that apply in a particular 

appeal.

(f) Additional information. For additional information on IRA appeals, the 

reader should consult 5 C.F.R. Part 1209. For additional information on 

VEOA appeals, the reader should consult 5 C.F.R. Part 1208, Subparts A & 

C. For additional information on USERRA appeals, the reader should 

consult 5 C.F.R. Part 1208, Subparts A & B.

Summary and Analysis:

The Board’s current regulation governing “Burden and Degree of 

Proof [and] Affirmative Defenses,” 5 C.F.R. § 1201.56, provides that the 

appellant bears the burden of proving jurisdiction by preponderant 

evidence; that the agency bears the burden of supporting a performancebased action by substantial evidence and supporting any other action by 

preponderant evidence; and that the appellant will prevail if he or she can 

establish a successful affirmative defense under 5 U.S.C. § 7701(c)(2) 
9

(specifically, that the agency action was based on a harmful procedural 

error, constituted a prohibited personnel practice, or was not in accordance 

with law). The foregoing principles do not apply, however, in three 

categories of appeals: (1) An individual right of action (IRA) appeal under 

the Whistleblower Protection Act, 5 U.S.C. § 1221; (2) an appeal under the 

Veterans Employment Opportunities Act (VEOA), 5 U.S.C. § 3330a(d); 

and (3) an appeal under the Uniformed Services Employment and 

Reemployment Rights Act (USERRA), 38 U.S.C. § 4324, in which the 

appellant alleges discrimination or retaliation in violation of 38 U.S.C. 

§ 4311. At the same time, the current version of section 1201.56 by its 

own terms is not limited to any particular category or categories of appeals, 

and another Board regulation makes section 1201.56 applicable to all cases 

within the Board’s appellate jurisdiction.

To correct this anomaly, Option B would amend section 1201.56 to 

limit its applicability to appeals other than IRA appeals, VEOA appeals, 

and USERRA discrimination and retaliation appeals. Option B would also 

add a section dealing specifically with the burden and degree of proof and 

scope of review in IRA appeals, VEOA appeals, and USERRA 

discrimination appeals. The new section would make clear that, in contrast 

to an appeal governed by section 1201.56, in the three aforementioned 

categories of appeals the appellant is not required to establish all 

jurisdictional elements by preponderant evidence, the appellant (not the 

agency) bears the burden of proof on the merits, and the appellant cannot 

assert an affirmative defense under 5 U.S.C. § 7701(c)(2). Option B would 

also move definitions from section 1201.56 to a part of the Board’s 

regulations that is of general applicability. Finally, Option B would add a 

definition of “nonfrivolous allegation,” an important concept that 

heretofore has not been defined in the Board’s regulations.

The following authorities stand for well-established principles that 

are inconsistent with section 1201.56, thereby justifying Option B’s 

limitation of section 1201.56’s coverage to appeals other than IRA appeals, 

VEOA appeals, and USERRA discrimination and retaliation appeals, as 

well as Option B’s creation of a new regulation covering IRA appeals, 

VEOA appeals, and USERRA discrimination and retaliation appeals: Yunus 

v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) 

(to establish jurisdiction in an IRA appeal, the appellant must prove that he 

has exhausted his remedy before the Office of Special Counsel and make 

nonfrivolous allegations that he engaged in whistleblowing activity by 

making a protected disclosure and the disclosure was a contributing factor 

in the agency’s decision to take or fail to take a personnel action); Williams 

v. Department of the Air Force, 97 M.S.P.R. 252, ¶ 6 (2004) (to establish 
10

jurisdiction in a VEOA appeal involving a claimed violation of veterans’ 

preference rights, the appellant must show that he exhausted his remedy 

with the Department of Labor and nonfrivolously allege that he is a 

preference eligible and the agency violated his rights under a statute or 

regulation relating to veterans' preference); Weed v. Social Security 

Administration, 112 M.S.P.R. 323, ¶ 13 n.5 (2009) (to establish jurisdiction 

in a VEOA appeal involving a claimed violation of the right to compete, 

the appellant must show that he exhausted his remedy with the Department 

of Labor and make nonfrivolous allegations that he is a veteran described 

in 5 U.S.C. § 3304(f)(1) and the agency denied him the right to compete 

under merit promotion procedures for a vacant position for which the 

agency accepted applications from outside its own workforce); Gossage v. 

Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012) (to establish 

jurisdiction in a USERRA discrimination case, the appellant must make 

nonfrivolous allegations that an executive agency committed discrimination 

based on his past military service or obligation to perform service); 

Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011) (the 

appellant bears the burden of proof on the merits in an IRA appeal); Dale v. 

Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13 (2006) (the 

appellant bears the burden of proof on the merits in a VEOA appeal); 

Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 6 (2005) (the appellant 

bears the burden of proof on the merits in a USERRA discrimination case); 

Marren v. Department of Justice, 51 M.S.P.R. 632, 638 39 (1991) (in an 

IRA appeal, the Board lacks authority to adjudicate an appellant’s 

affirmative defense under 5 U.S.C. § 7701(c)(2)), aff'd, 980 F.2d 745 (Fed. 

Cir. 1992) (Table); Goldberg v. Department of Homeland Security, 99 

M.S.P.R. 660, ¶ 11 (2005) (in a VEOA appeal, the Board lacks authority to 

adjudicate an appellant’s affirmative defense under 5 U.S.C. § 7701(c)(2)); 

Bodus v. Department of the Air Force, 82 M.S.P.R. 508, ¶¶ 14-17 (1999) 

(in a USERRA discrimination case, the Board lacks authority to adjudicate 

an appellant’s affirmative defense under 5 U.S.C. § 7701(c)(2)).
11

Option C

Option C would clarify how jurisdiction is established in Board 

proceedings as set forth below. The essence of Option C can be stated 

succinctly: All Board appeals include “who” and “what” jurisdictional 

elements that must be proved by preponderant evidence. Except for the 8 

appeal types listed in proposed section 1201.5(c), which require allegations 

(but only allegations) as to specific merits issues in order to establish 

jurisdiction, the “who” and “what” elements are the only jurisdictional 

requirements. Option C would also make a related change to section 

1201.24, which, in the opinion of the drafter, codifies long-standing case 

law that clarifies when an appellant in a Board proceeding is entitled to a 

full evidentiary hearing. Option C would modify the Board’s regulations in 

part 1201 to read as follows:

Regulatory Changes:

1. Amend § 1201.3(a) as follows:

§ 1201.3 Appellate jurisdiction.

(a) Generally. The Board’s appellate jurisdiction is limited to those matters 

over which it has been given jurisdiction by law, rule, or regulation. The 

particular requirements for establishing jurisdiction in Board proceedings 

are set forth in § 1201.5 of this part. The laws and regulations listed 

below—and not this section of part 1201—are the source of the Board’s 

jurisdiction, and should be consulted for additional information: 

* * * * * 

2. Insert new § 1201.5 as follows:

§ 1201.5 Establishing appellate jurisdiction.

(a) Burden of proof. The appellant bears the burden of establishing that a 

challenged agency action or decision is within the Board’s appellate 

jurisdiction. The Board must give an appellant explicit information as to 

the requirements for establishing jurisdiction in a given case. 

(b) Jurisdictional requirements relating to the nature of the challenged 

agency action or decision and the appellant’s status. In all appeals listed 

in § 1201.3, the appellant must establish by preponderant evidence that the 

agency action or decision is appealable to the Board under law, rule, or 
12

regulation, and that he or she is a person entitled to appeal that action or 

decision. Except for the appeals described in paragraph (c), these are the 

only jurisdictional requirements. An appellant who makes a nonfrivolous 

allegation of both of these jurisdictional elements is entitled to a 

jurisdictional hearing to establish these jurisdictional elements by 

preponderant evidence. A nonfrivolous allegation is an allegation of facts 

and related contentions that, if proven, could establish the matter at issue. 

(c) Jurisdictional requirements relating to the merits of an appeal. In the 

following types of appeals, the appellant must also make an allegation 

regarding the merits of the appeal: 

(1) In individual right of action (IRA) appeals under 5 U.S.C. 1221, 

the appellant must allege that a covered personnel action was taken 

in retaliation for whistleblowing or other protected activity; 

(2) In appeals under the Veterans Employment Opportunities Act 

(VEOA), the appellant must allege either that the agency violated the 

appellant’s rights under any statute or regulation relating to veterans’ 

preference (5 U.S.C. 3330a(a)(1)(A)), or that the agency denied the 

appellant the opportunity to compete for a vacant position for which 

the agency making the announcement will accept applications from 

individuals outside its own workforce under merit promotion 

procedures (5 U.S.C. 3330a(a)(1)(B));

(3) In appeals under the Uniformed Services Employment and 

Reemployment Rights Act, 38 U.S.C. 4324, the appellant must allege 

that a Federal executive agency has failed or refused, or is about to 

fail or refuse, to comply with the provisions of 38 U.S.C. chapter 43; 

(4) In appeals challenging the termination of probationary 

employment under 5 CFR 315.806(b) or 315.908(b), the appellant 

must allege that the agency took the action for partisan political 

reasons or because of the appellant’s marital status; 

(5) In appeals challenging the termination of probationary 

employment under 5 CFR 315.806(c), the appellant must allege that 

the termination was taken for pre-appointment reasons and that the 

agency did not comply with the procedural requirements of 

§ 315.805; 
13

(6) In employment practice appeals under 5 CFR 300.104, the 

appellant must allege that an employment practice which was applied 

to the appellant violated a basic requirement of 5 CFR 300.103; 

(7) In appeals of furloughs involving the Senior Executive Service 

under 5 CFR 359.805, the appellant must allege that the agency did 

not correctly follow required procedures; and 

(8) In restoration and reemployment appeals under 5 CFR 330.214, 

302.501, 352.508, 352.707, and 352.807, the appellant must allege a 

violation of his or her rights under the applicable regulations. 

For jurisdictional purposes, such allegations need not be nonfrivolous or 

state a claim upon which relief can be granted. 

(d) Claim processing rules. A requirement that an appellant exhaust an 

administrative process before filing a Board appeal, or that a complaint or 

appeal be filed within a statutory time frame, as in IRA and VEOA appeals, 

is not a jurisdictional requirement; it is a claim processing rule. An 

appellant must establish compliance with such rules by preponderant 

evidence. Failure to satisfy a claim processing rule may be the basis for 

dismissing a Board appeal. 

3. Amend § 1201.24(d) as follows:

§ 1201.24 Content of an appeal; right to hearing.

* * * 

(d) Right to hearing. 

(1) Generally. An appellant generally has a right to a hearing on the 

merits if the appeal has been timely filed and the Board has 

jurisdiction over the appeal. 

(2) Evidentiary hearing. As to the merits issues listed in § 1201.5(c) 

of this part, the issues listed in § 1201.56(a)(2) of this part, and as to 

other matters on which the appellant has the burden of proof as 

established by case law, the appellant is entitled to an evidentiary

hearing, that is, a hearing that includes witness testimony and the 

introduction of exhibits, only when there are genuine issues of 

material fact to be resolved. When there are no genuine issues of 
14

material fact to be resolved, a hearing may be limited to oral 

argument as to legal issues and the application of the law to the facts 

of the case. Such non-evidentiary hearings may be accomplished via 

telephone or videoconference as well as in person. 

4. Amend § 1201.56(a) as follows: 

§ 1201.56 Burden and degree of proof; affirmative defenses.

(a) Burden and degree of proof—(1) * * * 

(2) Appellant. The appellant has the burden of proof, by a 

preponderance of the evidence, with respect to issues of timeliness, 

affirmative defenses, and the claim processing rules listed in 

§ 1201.5(d) of this part. The appellant also has the burden of 

establishing jurisdiction over an appeal as described in § 1201.5 of 

this part. In appeals from final decisions of the Office of Personnel 

Management involving retirement benefits, if the appellant filed the 

application, the appellant has the burden of proving, by a 

preponderance of the evidence, entitlement to the benefits. An 

appellant who has received an overpayment from the Civil Service 

Retirement and Disability Fund has the burden of proving, by 

substantial evidence, eligibility for waiver or adjustment. 

* * * * *

Summary and Analysis:

Executive Summary

Jurisdiction refers to a court or administrative tribunal’s authority to 

adjudicate a particular category of cases. The Supreme Court has criticized 

the issuance of “drive-by” jurisdictional rulings that conflate merits issues 

with jurisdictional requirements and has cautioned that, if it is questionable 

whether a threshold requirement is jurisdictional, a court or administrative 

tribunal should not treat the matter as jurisdictional. In Board proceedings, 

the “who” and “what” elements are the crucial determinants that govern 

whether the Board possesses the legal authority to adjudicate a case. As 

was recently stated by the Supreme Court, “the [Civil Service Reform Act] 

makes MSPB jurisdiction over an appeal dependent only on the nature of 

the employee and the employment action at issue.” As detailed in the 
15

MSPB Jurisdictional Matrix, all appeals within the Board’s appellate 

jurisdiction contain “who” and “what” requirements, which are always 

jurisdictional in nature; they are never merits issues. Because they are 

properly viewed as conditions precedent to reaching the merits of an 

appeal, the Board should require that these elements be proved by 

preponderant evidence in every appeal. No merits issue should be regarded 

as a jurisdictional requirement unless Congress or OPM has clearly 

indicated that it should be treated as such. In eight specific types of 

appeals, Congress and OPM have indicated that allegations regarding the 

merits are required as a jurisdictional matter, but these statutes and 

regulations require only allegations, claims, or beliefs, they do not require 

nonfrivolous allegations. Except for the eight types of appeals listed in

paragraph (c) of the proposed regulation, the “who” and “what” elements 

are the only jurisdictional requirements. The Supreme Court has ruled that 

exhaustion and timeliness requirements similar to those in IRA and VEOA 

appeals are claim processing rules, not jurisdictional requirements. 

In addition to the above reasons for promulgating Option C, the 

drafter of this option believes its adoption would have two practical 

benefits. First, the proposed regulations would greatly simplify 

jurisdictional determinations in Board proceedings. Everyone would know 

that “who” and “what” jurisdictional elements must be proved by 

preponderant evidence in every appeal, and that, with eight listed 

exceptions, these are the only jurisdictional requirements. Second, the 

proposed regulations would open the door to resolving a substantial group 

of appeals by settlement, because enforceable settlement agreements could 

be reached without nonfrivolous allegations of some jurisdictional/merits 

matters, e.g., whether a protected disclosure was made in an IRA appeal. 

The proposed regulatory changes would be entitled to Chevron

deference because the relevant statutes and regulations that provide for 

Board jurisdiction are silent or ambiguous with respect to the identity of 

jurisdictional elements and the applicable burden of proof, and because the 

Board has either been given express rulemaking authority or has implicit 

rulemaking authority because it has been charged with the administration 

of the statutes and regulations at issue. 

Proposed section 1201.24(d) provides that an appellant is entitled to 

an 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 rule is fully supported by long-established case law. 

In the opinion of the drafter, codifying this case law is especially important 

in light of proposed section 1201.5(b)-(c), which modifies current case law 
16

that requires nonfrivolous allegations of merits issues in order to establish 

jurisdiction. 

Arguments

All appeals within the Board’s appellate jurisdiction contain “who” and 

“what” jurisdictional elements that must always be proved by preponderant 

evidence. 

Jurisdiction refers to a court or administrative tribunal’s authority 

“to adjudicate a particular category of cases.” Wachovia Bank v. Schmidt, 

546 U.S. 303, 316 (2006). The Supreme Court has criticized the issuance 

of “drive-by” jurisdictional rulings that conflate merits issues with 

jurisdictional issues. If it is questionable whether a threshold requirement 

is jurisdictional, a court or administrative tribunal should not treat the 

matter as jurisdictional. See, e.g., Reed-Elsevier, Inc. v. Muchnick, 559 

U.S. 154, 1244 (2010); Arbaugh v. Y & H Corp., 546 U.S. 500, 511 (2006). 

In Board proceedings, the nature of the employee, former employee, or 

applicant for employment filing the appeal (the “who” element), and the 

type of employment action or decision being challenged (the “what” 

element), are the crucial determinants that govern whether the Board 

possesses the legal authority to adjudicate a case. The Supreme Court 

recently indicated that the “who” and “what” elements are typically the 

only jurisdictional requirements in Board appeals: “the [Civil Service 

Reform Act] makes MSPB jurisdiction over an appeal dependent only on 

the nature of the employee and the employment action at issue.” Elgin v. 

Department of the Treasury, 132 S. Ct. 2126, 2137 (2012). 

Each and every statute and regulation that authorizes the Board to 

adjudicate an appeal includes “who” and “what” elements. See MSPB 

Jurisdictional Matrix. The “who” and “what” elements are always

jurisdictional in nature; they are never merits issues. This is true even in 

constructive adverse actions. In such a case, proof that a retirement or 

resignation was involuntary establishes the “what” jurisdictional element, 

i.e., that the appellant was removed. If the appellant also establishes the 

“who” element, he or she will win on the merits because he or she will 

have been deprived of due process of law and/or the procedures required by 

5 U.S.C. § 7513(b), and the action may not be sustained under 5 U.S.C. 

§ 7701(c)(2)(A) and/or (C). 

Because the “who” and “what” jurisdictional elements are properly 

viewed as conditions precedent that must be satisfied before the Board 

addresses the merits of an appeal, the Board should always require 
17

preponderant evidence as to these matters. In an adverse action appeal, for 

example, the Board should determine whether the agency’s action promotes 

the efficiency of the service only if the appellant is in fact an “employee” 

who has been subjected to one of the four listed adverse actions. 

Because the “who” and “what” elements are never merits issues, the 

same rationale for requiring preponderant evidence as to these elements 

applies to IRA, VEOA, and USERRA appeals. For example, if an IRA 

appellant has not been subjected to one of the 12 actions listed in 5 U.S.C. 

§ 2302(a)(2)(A), there is no basis for the Board to reach the merits issues 

of whether the appellant engaged in whistleblowing or other protected 

activity, and whether the whistleblowing or other protected activity was a 

contributing factor in the personnel action(s) in question. That IRA, 

VEOA, and USERRA appeals may not be appeals under 5 U.S.C. § 7701 is 

a distinction without a difference; there is no logical nexus between this 

fact and the quantum of proof required to establish the “who” or “what” 

jurisdictional element. What distinguishes these three types of appeals 

from other appeals within the Board’s jurisdiction is that they are singleissue appeals in which appellants cannot raise discrimination or other 

unrelated claims, and that the right to a hearing either does not exist or has 

a legal basis other than section 7701. There is nothing in any of the 

pertinent statutes that states or even suggests that something less than 

preponderant evidence should be required for establishing “who” or “what” 

jurisdictional elements. 

Only 8 types of MSPB appeals have jurisdictional requirements relating to 

the merits of the appeal and all that is required for jurisdictional purposes as 

to these matters is a bare allegation. 

As noted above, the Supreme Court has decried the issuance of 

“drive-by” jurisdictional rulings that conflate merits issues—including 

whether a party has stated a claim upon which relief can be granted—with 

jurisdictional issues. To avoid such conflation, the Court prescribed a 

“readily administrable bright line” rule that a “threshold limitation on a

statute’s scope shall count as jurisdiction” only when “the Legislature 

clearly states” that the matter is jurisdictional. Arbaugh, 546 U.S. at 515-

16. Combined with the premise developed above that all Board appeals 

contain “who” and “what” jurisdictional elements, the clear implication is 

that these are the only jurisdictional elements in a Board proceeding unless 

Congress or OPM (where an OPM regulation rather than a statute is the 

source of the Board’s authority to adjudicate an appeal) has clearly 

indicated that there are additional jurisdictional requirements. If it is 
18

unclear whether a particular requirement is jurisdictional, it should not be 

so treated. 

As set forth in Exhibit A attached below, there are seven matters 

appealable to the Board in which Congress or OPM does appear to have 

required that there be an allegation regarding a merits issue as part of 

establishing jurisdiction. These statutes and regulations are listed in 

proposed section 1201.5(c)(2) through (8). For example, 5 C.F.R. 

§ 300.104(a) provides that “a candidate who believes that an employment 

practice which was applied to him or her by [OPM] violates a basic 

requirement in § 300.103 is entitled to appeal to the [MSPB] . . . .” 

(emphasis added) These seven statutes or regulations are the only ones 

listed in section 1201.3 that specify that a merits issue is also jurisdictional 

in nature. None of these statutes or regulations states that a nonfrivolous 

allegation is required to establish jurisdiction; they provide that the 

individual must “allege,” “claim,” “believe,” or “consider” that the agency 

did the wrongful thing in question. In Chevron v. Natural Resources 

Defense Council, 467 U.S. 837, 842 (1984), the Supreme Court stated, 

“First, always, is the question whether Congress has directly spoken to the 

precise question at issue. If the intent of Congress is clear, that is the end 

of the matter . . . .” When a statute or regulation authorizing the Board to 

adjudicate a particular kind of case states that an individual who “alleges,” 

“claims,” “believes,” or “considers” that an agency has acted in a particular 

wrongful way is entitled to appeal to the MSPB, the statute or regulation 

must be applied as written. The Board has no authority in these instances 

to require that the allegations be “nonfrivolous.” 

IRA appeals are a special case. Congress included the “who” and 

“what” elements plus the exhaustion requirement and the merits issues in 

the same statutory section (5 U.S.C. § 1221(a)) that authorizes the Board to 

hear such appeals, without making any attempt to distinguish jurisdictional 

issues from merits issues or claim processing rules. Under these 

ambiguous circumstances, Option C treats IRA appeals as if the statute 

were written in the same way as the Board’s other “affirmative claim” 

types of appeals, VEOA and USERRA appeals. Both of these require an 

allegation of a merits issue, as set forth in proposed § 1201.5(c)(2) & (3). 

Proposed section 1201.5(c)(1) describes the jurisdictional requirement for 

IRA appeals as follows: “the appellant must allege that a covered 

personnel action was taken in retaliation for whistleblowing or other 

protected activity.” 

Regarding the exhaustion requirements in IRA and VEOA appeals, 

the proposed regulation treats these as “claim processing rules” rather than 
19

as jurisdictional requirements. The Supreme Court has distinguished 

between “‘truly jurisdictional rules’ which govern ‘a court’s adjudicatory 

authority,’ and nonjurisdictional ‘claim-processing rules,’ which do 

not.” Gonzalez v. Thayer, 132 S. Ct. 641, 648 (2012) (quoting Kontrick v. 

Ryan, 540 U.S. 443, 454-55 (2004)). A rule is jurisdictional “[i]f the 

Legislature clearly states that a threshold limitation on a statute’s scope 

shall count as jurisdictional.” Arbaugh, 546 U.S. 500, 515 (2006). But if 

“Congress does not rank a statutory limitation on coverage as 

jurisdictional, courts should treat the restriction as nonjurisdictional.” Id.

at 516. Applying these principles, the Court has found that various 

exhaustion and timeliness requirements similar to those in IRA and VEOA 

appeals are nonjurisdictional claim-processing rules. See Gonzalez v. 

Thayer (holding that a provision of the Antiterrorism and Effective Death 

Penalty Act that requires a certificate of appealability before an appeal may 

be taken to a court of appeals was not jurisdictional); Henderson ex rel. 

Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (120-day deadline on filing 

appeals to the Veterans Court is not jurisdictional); Reed-Elsevier, 559 

U.S. 154 (2010) (Copyright Act’s registration requirement is a precondition 

to filing a copyright infringement claim but does not restrict a federal 

court’s subject matter jurisdiction); Union Pacific Railroad Co. v. 

Brotherhood of Locomotive Engineers, 130 S. Ct. 584 (2009) (procedural 

rule requiring proof of conferencing prior to arbitration of minor dispute 

before the NRAB is not jurisdictional in nature); Woodford v. Ngo, 548 

U.S. 81, 101 (2006) (exhaustion of administrative remedies under the 

Prison Litigation Act is not a jurisdictional requirement); Zipes v. Trans 

World Airlines, Inc., 455 U.S. 385, 393 (1982) (statutory time limit for 

filing charges under Title VII of the Civil Rights Act of 1964 is not 

jurisdictional). Under proposed section 1201.24(d), failure to meet a 

statutory time limit or exhaustion requirement in an IRA or VEOA appeal 

would be a basis to dismiss the appeal, but such dismissal would not be for 

lack of jurisdiction. 

The proposed regulatory changes would be entitled to Chevron deference. 

Under Chevron, when a court reviews an agency’s construction of 

the statute which it administers, it is confronted with two questions. The 

first is whether Congress has directly spoken to the precise question at 

issue. If the answer is “yes,” that is the end of the matter; the court must 

simply apply what Congress has written. But if the statute is silent or 

ambiguous with respect to the specific issue, the question for the court is 

whether the agency’s answer is based on a permissible construction of the 

statute. If it is, then the court must defer to the agency’s interpretation. 

467 U.S. at 842-43. 
20

These principles apply to an agency’s determination regarding its 

own jurisdiction to the same extent they apply to other matters. In City of 

Arlington v. Federal Communications Commission, 133 S. Ct. 1863 (2013), 

the question presented was “whether an agency’s interpretation of a 

statutory ambiguity that concerns the scope of its regulatory authority (that 

is, jurisdiction) is entitled to deference under Chevron . . . .” Id. at 1866. 

In resolving that question in the affirmative, the Court emphasized that 

courts should not replace or usurp the administrative agency’s primary 

place in this scheme: “‘Congress, when it left ambiguity in a statute’ 

administered by an agency, ‘understood that the ambiguity would be 

resolved, first and foremost, by the agency, and desired the agency (rather 

than the courts) to possess whatever degree of discretion that ambiguity 

allows.’” Id. at 1868 (quoting Smiley v. Citibank (South Dakota), N.A., 517 

U.S. 735, 740-41 (1996)). Similarly, when rejecting the “false dichotomy 

between ‘jurisdictional’ and ‘non-jurisdictional’ agency interpretations,” 

the Court stated that the effect of such a dichotomy “would be to transfer 

any number of interpretive decisions—archetypal Chevron questions, about 

how best to construe an ambiguous term in light of competing policy 

interests—from the agencies that administer the statutes to federal courts. 

We have cautioned that ‘judges ought to refrain from substituting their own 

interstitial lawmaking’ for that of an agency.” Id. at 1872-73 (quoting 

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980) (footnote 

deleted). 

Identifying jurisdictional requirements in Board appeals falls 

squarely within the Chevron principle that agencies are authorized to 

interpret a statute that is “silent or ambiguous” with respect to a particular 

matter. That Congress and OPM did not unambiguously and with precision 

identify jurisdictional elements or specify applicable burdens of proof for 

establishing jurisdiction would be an understatement. Accordingly, as the 

agency charged with administering (by adjudication) the various laws and 

regulations authorizing the Board to hear various types of appeals, the 

Board is authorized to resolve Congress’s and OPM’s silence and/or 

ambiguity by notice-and-comment rulemaking, and the Federal Circuit 

would be required to defer to the Board’s interpretation as long as it is a 

permissible one. 

Because the MSPB is the agency charged with administering the 

statutes and regulations in question for purposes of determining whether 

jurisdiction has been established in a particular case, the Federal Circuit is 

required to give Chevron deference to properly promulgated notice-andcomment rules. For purposes of determining jurisdiction over an appeal to 
21

the Board, the MSPB is the only agency that could be said to administer a 

particular law. OPM might be said to be the “administering agency” for 

some purposes, but not for determining whether the Board has jurisdiction 

over an appeal. 

Deference to the Board under Chevron applies to all appeals under 5 

U.S.C. § 7701, i.e., all appeals listed in section 1201.3(a), because that 

statute expressly gives the MSPB rulemaking authority. In its en banc 

decision in Garcia v. Department of Homeland Security, 437 F.3d 1322, 

1338 (Fed. Cir. 2006), the Federal Circuit explained that Chevron

deference applied to the rule in section 1201.56 requiring preponderant 

evidence as to jurisdictional issues because Congress had not “directly 

spoken” to this issue and because section 7701 specifically authorized the 

Board to issue regulations. The same reasoning applies to proposed section 

1201.5 as to all matters listed in section 1201.3(a). 

The authority for promulgating a regulation construing jurisdictional 

requirements in IRA, VEOA, and USERRA appeals has to be considered 

separately, as the Board and the Federal Circuit have determined that these 

are not appeals under section 7701, and the specific authorization of 

section 7701(a) to promulgate regulations would therefore not apply. 

Nevertheless, the absence of specific rulemaking authority does not mean 

that an interpretive regulation covering these appeal types would not be 

entitled to Chevron deference. As the Supreme Court stated in that 

decision, “Sometimes, the legislative delegation to an agency on a 

particular question is implicit rather than explicit. In such a case, a court 

may not substitute its own construction of a statutory provision for a 

reasonable interpretation made by the administrator of an agency.” 467 

U.S. at 844. As the Court further explained in a later decision,

Congress, that is, may not have expressly delegated authority 

or responsibility to implement a particular provision or fill a 

particular gap. Yet it can still be apparent from the agency’s 

generally conferred authority and other statutory 

circumstances that Congress would expect the agency to be 

able to speak with the force of law when it addresses 

ambiguity in the statute or fills a space in the enacted law, 

even one about which “Congress did not actually have an 

intent” as to a particular result. When circumstances implying 

such an expectation exist, a reviewing court has no business 

rejecting an agency’s exercise of its generally conferred 

authority to resolve a particular statutory ambiguity simply 
22

because the agency’s chosen resolution seems unwise, but is 

obliged to accept the agency’s position if Congress has not 

previously spoken to the point at issue and the agency’s 

interpretation is reasonable . . . .

United States v. Mead Corp., 533 U.S. 218, 229 (2001) (citations deleted).

The Federal Circuit would be required to give Chevron deference to 

proposed section 1201.5 insofar as it applies to IRA, VEOA, and USERRA 

appeals because a delegation to construe ambiguities in these statutes as to 

how jurisdiction is established is implicit in the grant of authority to the 

Board to adjudicate these three types of appeals. 

In the opinion of the drafter, the proposed change to section 1201.24(d) 

regarding the right to a hearing codifies well-established case law and is 

necessary in light of changes to how jurisdiction is determined in Board 

proceedings. 

Proposed section 1201.24(d) provides that an 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 rule is fully supported by long-established case law. 

Setting forth this well-established case law in the Board’s regulations so 

that everyone would have fair notice of this rule would be a sufficient basis 

for promulgating this regulation. Doing so is especially important in light 

of proposed section 1201.5(b)-(c), which modifies current case law that 

requires nonfrivolous allegations of merits issues in order to establish 

jurisdiction. 

In Bommer v. Department of the Navy, 34 M.S.P.R. 543, 550-51 

(1987), the Board held unequivocally that, under Crispin v. Department of 

Commerce, 732 F.2d 919 (Fed. Cir. 1984), which held that the Board lacks 

summary judgment authority, an appellant has a right to a hearing under 

section 7701(a) even when there are no genuine issues of material fact, but 

emphasized the limitations that an administrative judge can impose on such 

a hearing:

To the extent the evidence and testimony a party seeks to 

introduce at a hearing before the Board concerns undisputed 

matters, and to the extent they concern only matters that are 

otherwise not material to the matter being heard, therefore, the 

administrative judge has the authority to exclude the proffered 

evidence and testimony. If all the proffered evidence and 

testimony concerns only undisputed or otherwise immaterial 
23

matters, the administrative judge has the authority to exclude 

all of it. Under those circumstances, however, in light of our 

holding that an appellant in a reduction-in-force appeal has a 

statutory right to a hearing, the appellant would still be 

entitled to a hearing at which he could present argument in the 

case.

In view of the considerations stated above, we find that, 

when an administrative judge rules that all the evidence an 

appellant intends to introduce is immaterial, irrelevant, or 

repetitious, the administrative judge is not required to hold an 

evidentiary hearing in the appeal. 

Id. at 551-52 (citations deleted). The Board reaffirmed this holding in 

Jordan v. Office of Personnel Management, 108 M.S.P.R. 119, ¶ 20 

(2008). When there are no genuine issues of material fact, an appellant’s 

hearing may be limited to a telephone conference in which the appellant 

has the opportunity to present oral argument on the legal issues involved in 

the appeal. Id. 

As related in the Federal Circuit’s Crispin decision, Congress 

considered but ultimately declined to enact a statute that expressly gave the 

MSPB summary judgment authority. For the reasons set out in cases like 

Bommer and Jordan, however, that does not mean that appellants are 

entitled to a full evidentiary hearing, including the presentation of witness 

testimony and documentary evidence, in cases where there are no genuine 

issues of material fact. Such an entitlement would completely eviscerate 

the authority of MSPB judges to limit witness testimony and other evidence 

to that which is relevant, material, and non-repetitious. See 5 C.F.R. 

§ 1201.41(b)(10). What the statutory right to a hearing does necessarily 

entail is that, for each appeal that is within the Board’s jurisdiction, the 

appellant will get his or her “day in court.” This would include the 

appellant’s right to tell his or her version of events, subject to the judge’s 

authority to limit testimony to that which is relevant, material, and nonrepetitious, but would not extend to introducing the testimony of other 

witnesses and documentary evidence that has not been shown to be 

relevant, material, and non-repetitious. 

In declining to give the MSPB formal summary judgment authority, 

Congress may well have been mindful that, in contrast to federal district 

court proceedings governed by Rule 56 of the Federal Rules of Civil 

Procedure, in which the vast majority of litigants are represented by 

attorneys, proceedings before the MSPB frequently involve individuals 
24

who are representing themselves, and who therefore could not be expected 

to be adept at the motion practice involved in summary judgment 

proceedings. In particular, the preparation of affidavits or declarations 

made under penalty of perjury, combined with the crafting of legal 

arguments that would show that genuine issues of material fact exist, might 

be too difficult for many pro se appellants to handle. In the merits hearing 

required by proposed section 1201.24(d), the Board’s administrative judges 

would be expected not only 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. In cases in which an appellant has not raised a genuine issue of 

fact as to a matter on which he or she bears the burden of proof, judges 

would explain the applicable substantive law, and why the facts as known 

appear to indicate that the appellant cannot prevail on the merits as a 

matter of law. In such a setting, pro se appellants would be in a position to 

articulate why they believe there is a genuine issue of material fact. If they 

can articulate such an issue, the judge would schedule an evidentiary 

hearing. If they are unable to articulate such an issue, the judge would 

issue an initial decision based on the existing record.

Proposed section 1201.24(d) is a reasonable interpretation of an 

appellant’s statutory entitlement in section 7701(a)(1) to a “hearing.” As 

such, the U.S. Court of Appeals for the Federal Circuit would be required 

to give this regulation Chevron deference. 
25

APPENDIX A — JURISDICTIONAL STATUTES AND 

REGULATIONS REQUIRING ALLEGATIONS RELATING TO THE 

MERITS

The following statutes and regulations that authorize the Board to 

adjudicate particular kinds of appeals require allegations relating to the 

merits of the appeal. In no instance does the statute or regulation require 

that the allegations be nonfrivolous.

VEOA, 5 U.S.C. § 3330a:

(a)(1)(A) A preference eligible who alleges that an agency has violated such 

individual’s rights under any statute or regulation relating to veterans’ preference 

may file a complaint with the Secretary of Labor. 

(B) A veteran described in section 3304 (f)(1) who alleges that an agency has 

violated such section with respect to such veteran may file a complaint with the 

Secretary of Labor. 

(d)(1) If the Secretary of Labor is unable to resolve a complaint under subsection 

(a) within 60 days after the date on which it is filed, the complainant may elect to 

appeal the alleged violation to the Merit Systems Protection Board in accordance 

with such procedures as the Merit Systems Protection Board shall prescribe . . . .

USERRA, 38 U.S.C. § 4322(a):

A person who claims that—(1) such person is entitled under this chapter to 

employment or reemployment rights or benefits with respect to employment by an 

employer; and (2). . . (B) in the case that the employer is a Federal executive 

agency, such employer or the Office of Personnel Management has failed or 

refused, or is about to fail or refuse, to comply with the provisions of this chapter, 

may file a complaint with the Secretary in accordance with subsection (b), and the 

Secretary shall investigate such complaint.

§ 4324(b)-(c): Once DOL exhaustion requirement has been established, MSPB 

authorized to adjudicate appeal.

Probationary Termination, 5 C.F.R. § 315.806:

(b) On discrimination. An employee may appeal under this paragraph a 

termination not required by statute which he or she alleges was based on partisan 

political reasons or marital status.

(d) An employee may appeal to the Board under this section a termination which 

the employee alleges was based on discrimination . . . .

Probationary Termination (supervisory or managerial position), 5 C.F.R. 

§ 315.908(b):
26

(b) An employee who alleges that an agency action under this subpart was based 

on partisan political affiliation or marital status, may appeal to the Merit Systems 

Protection Board.

Employment Practices under 5 C.F.R. § 300.104:

(a) Employment practices. A candidate who believes that an employment practice 

which was applied to him or her by the Office of Personnel Management violates a 

basic requirement in § 300.103 is entitled to appeal to the Merit Systems 

Protection Board under the provisions of its regulations. 

Furlough appeals under 5 C.F.R. § 359.805: A career appointee who has been 

furloughed and who believes this subpart or the agency's procedures have not been 

correctly applied may appeal to the Merit Systems Protection Board under 

provisions of the Board's regulations. 

Reemployment Rights appeal under 5 C.F.R. § 330.214: An RPL registrant 

who believes the agency violated his or her reemployment rights under this 

subpart by employing another person who otherwise could not have been 

appointed properly may appeal to the Merit Systems Protection Board under the 

Board's regulations in part 1200 of this chapter. 

Priority Consideration appeal under 5 C.F.R. § 302.501: An individual who is 

covered by 5 U.S.C. 8101(1) and is entitled to priority consideration under this 

part (see § 302.103) may appeal a violation of his/her restoration rights to the 

Merit Systems Protection Board under the provisions of the Board's regulations by 

presenting factual information that he or she was denied restoration rights because 

of the employment of another person. 

Reinstatement under 5 C.F.R. § 352.508: (c) If an employee considers that his 

reinstatement is not in accordance with the act and this subpart, he or she is 

entitled to appeal to the Merit Systems Protection Board under the provisions of 

the Board's regulations. 

Reemployment under 5 C.F.R. § 352.313: (c) An employee may submit an 

appeal, alleging that the agency has failed to comply with any of the other 

provisions of sections 3343 and 3581-3584 of title 5, United States Code, or of this 

part, to the Merit Systems Protection Board under the provisions of the Board's 

regulations. 

Reemployment under 5 C.F.R. § 352.707: (b) If an employee considers

reemployment to be not in accordance with this subpart, the employee is entitled 

to appeal to the Merit Systems Protection Board under the provisions of the 

Board's regulations. 

Reemployment under 5 C.F.R. § 352.807: An employee may appeal to MSPB, 

under the provisions of the Board's regulations, an agency's decision on his or her 

request for reemployment which he or she believes is in violation of this subpart. 
27

Option D

Option D is the same as option C, except that option D does not 

include the proposed amendments to § 1201.24(d).

Regulatory Changes:

1. Amend § 1201.3(a) as follows:

§ 1201.3 Appellate jurisdiction.

(a) Generally. The Board’s appellate jurisdiction is limited to those matters 

over which it has been given jurisdiction by law, rule or regulation. The 

particular requirements for establishing jurisdiction in Board proceedings 

are set forth in § 1201.5 of this part. The laws and regulations listed 

below—and not this section of part 1201—are the source of the Board’s 

jurisdiction, and should be consulted for additional information: 

* * * * * 

2. Insert new § 1201.5 as follows:

§ 1201.5 Establishing appellate jurisdiction.

(a) Burden of proof. The appellant bears the burden of establishing that a 

challenged agency action or decision is within the Board’s appellate 

jurisdiction. The Board must give an appellant explicit information as to 

the requirements for establishing jurisdiction in a given case. 

(b) Jurisdictional requirements relating to the nature of the challenged 

agency action or decision and the appellant’s status. In all appeals listed 

in § 1201.3, the appellant must establish by preponderant evidence that the 

agency action or decision is appealable to the Board under law, rule, or 

regulation, and that he or she is a person entitled to appeal that action or 

decision. Except for the appeals described in paragraph (c), these are the 

only jurisdictional requirements. An appellant who makes a nonfrivolous 

allegation of both of these jurisdictional elements is entitled to a 

jurisdictional hearing to establish these jurisdictional elements by 

preponderant evidence. A nonfrivolous allegation is an allegation of facts 

and related contentions that, if proven, could establish the matter at issue. 
28

(c) Jurisdictional requirements relating to the merits of an appeal. In the 

following types of appeals, the appellant must also make an allegation 

regarding the merits of the appeal: 

(1) In individual right of action (IRA) appeals under 5 U.S.C. 1221, 

the appellant must allege that a covered personnel action was taken 

in retaliation for whistleblowing or other protected activity; 

(2) In appeals under the Veterans Employment Opportunities Act 

(VEOA), the appellant must allege either that the agency violated the 

appellant’s rights under any statute or regulation relating to veterans’ 

preference (5 U.S.C. 3330a(a)(1)(A)), or that the agency denied the 

appellant the opportunity to compete for a vacant position for which 

the agency making the announcement will accept applications from 

individuals outside its own workforce under merit promotion 

procedures (5 U.S.C. 3330a(a)(1)(B));

(3) In appeals under the Uniformed Services Employment and 

Reemployment Rights Act, 38 U.S.C. 4324, the appellant must allege 

that a Federal executive agency has failed or refused, or is about to 

fail or refuse, to comply with the provisions of 38 U.S.C. chapter 43; 

(4) In appeals challenging the termination of probationary 

employment under 5 CFR 315.806(b) or 315.908(b), the appellant 

must allege that the agency took the action for partisan political 

reasons or because of the appellant’s marital status; 

(5) In appeals challenging the termination of probationary 

employment under 5 CFR 315.806(c), the appellant must allege that 

the termination was taken for pre-appointment reasons and that the 

agency did not comply with the procedural requirements of 

§ 315.805; 

(6) In employment practice appeals under 5 CFR 300.104, the 

appellant must allege that an employment practice which was applied 

to the appellant violated a basic requirement of 5 CFR 300.103; 

(7) In appeals of furloughs involving the Senior Executive Service 

under 5 CFR 359.805, the appellant must allege that the agency did 

not correctly follow required procedures; and 
29

(8) In restoration and reemployment appeals under 5 CFR 330.214, 

302.501, 352.508, 352.707, and 352.807, the appellant must allege a 

violation of his or her rights under the applicable regulations. 

For jurisdictional purposes, such allegations need not be nonfrivolous or 

state a claim upon which relief can be granted. 

(d) Claim processing rules. A requirement that an appellant exhaust an 

administrative process before filing a Board appeal, or that a complaint or 

appeal be filed within a statutory time frame, as in IRA and VEOA appeals, 

is not a jurisdictional requirement; it is a claim processing rule. An 

appellant must establish compliance with such rules by preponderant 

evidence. Failure to satisfy a claim processing rule may be the basis for 

dismissing a Board appeal. 

3. Amend § 1201.56(a) as follows: 

§ 1201.56 Burden and degree of proof; affirmative defenses.

(a) Burden and degree of proof—(1) * * * 

(2) Appellant. The appellant has the burden of proof, by a 

preponderance of the evidence, with respect to issues of timeliness, 

affirmative defenses, and the claim processing rules listed in 

§ 1201.5(d) of this part. The appellant also has the burden of 

establishing jurisdiction over an appeal as described in § 1201.5 of 

this part. In appeals from final decisions of the Office of Personnel 

Management involving retirement benefits, if the appellant filed the 

application, the appellant has the burden of proving, by a 

preponderance of the evidence, entitlement to the benefits. An 

appellant who has received an overpayment from the Civil Service 

Retirement and Disability Fund has the burden of proving, by 

substantial evidence, eligibility for waiver or adjustment. 

* * * * *

Summary and Analysis:

This option is the same as Option C, except that it does not include 

the proposed regulatory language in § 1201.24(d) authorizing an appeal to 

be decided without an evidentiary hearing when there is no genuine issue 
30

of material fact to be resolved. The drafters of this option were concerned 

such a procedure might violate an appellant’s statutory entitlement to a 

hearing under 5 U.S.C. § 7701(a)(1). This concern reflected the drafters’ 

view that Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. 

Cir. 1984) bars summary judgment proceedings. Therefore, Option D 

would continue the Board’s current practice of affording appellants the 

opportunity for a hearing, if requested, in all cases within its jurisdiction.