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Director of Legal Services Neil McPhie, Esq. speaks with Bloomberg BNA about a proposed MSPB rule change


MSPB Proposes Regulations on Jurisdiction Over Appeals, Including Change in Standard

MSPB Proposed Rule on Practices and Procedures

Latest Development: Merit Systems Protection Board issues proposed rule that would amend its regulations governing how jurisdiction is established over board appeals.

Next Steps: Comments on proposed rule are due no later than May 5.

By Louis C. LaBrecque

April 3 –The Merit Systems Protection Board is proposing to amend its regulations governing how jurisdiction is established over board appeals, the MSPB said in a proposed rule published in the April 3 Federal Register (79 Fed. Reg. 18,658).

According to the board, which is responsible for hearing federal employee appeals of alleged prohibited personnel practices, 5 C.F.R. § 1201.56 currently provides that “the appellant bears the burden of proving jurisdiction by preponderant evidence.” The agency then bears the burden of supporting a performance-based action by substantial evidence and supporting any other action by preponderant evidence. But “the appellant will prevail if he or she can establish a successful affirmative defense under 5 U.S.C. 7701(c)(2) (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 board said.

These principles do not apply, however, in four categories of appeals, the board said:

• individual right of action (IRA) appeals under the Whistleblower Protection Act at 5 U.S.C. § 1221;

• appeals under the Veterans Employment Opportunities Act at 5 U.S.C. § 1221;

• appeals under the Uniformed Services Employment and Reemployment Rights Act at 38 U.S.C. § 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. § 4311; and

• appeals of denial of restoration under 5 C.F.R. Part 353.

“To correct this anomaly, this proposed rule would amend section 1201.56 to limit its applicability to appeals other than IRA appeals, VEOA appeals, USERRA discrimination and retaliation appeals, and denial of restoration appeals and insert a new regulation, revised section 1201.57, to address the burden and degree of proof and scope of review in such appeals,” the board said.

‘Nonfrivolous’ Standard for Jurisdiction.

Neil McPhie, director of legal services in Tully Rinckey PLLC’s Washington office and the former chairman of the MSPB, told Bloomberg BNA April 3 that the primary intent of the MSPB in issuing the proposed rule appeared to be to conform the board’s regulations in the four types of appeals with current practices based on a number of court rulings.

However, McPhie said the proposed rule would allow appellants in the four types of appeals to support certain jurisdictional matters brought up in their appeals under a “nonfrivolous allegation” standard rather than a “preponderance of the evidence” standard.

The board addressed this point in its summary of the proposed rule, citing the U.S. Court of Appeals for the Federal Circuit’s February 2006 ruling in Garcia v. Homeland Security Department, 437 F.3d 1322 (Fed. Cir. 2006).

According to the MSPB, the court in Garcia stated that “if the Board has a sufficient basis, it may adopt a nonfrivolous allegation standard for an appeal by changing its regulation on jurisdiction in accordance with notice and comment rulemaking procedures.”

“The Board finds that it is appropriate in restoration appeals to apply the nonfrivolous allegation standard,” the board said.

In the proposed text of revised Section 1201.57, the board said, other than for specified exceptions, “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)) with regard to the substantive jurisdictional elements applicable to the particular type of appeal he or she has initiated.”

The new proposed rule replaces an earlier proposal issued by the board in June 2012 that called for wide-ranging changes to the board’s adjudicatory processes . The board announced in November 2013 that it had withdrawn the earlier proposed rule after receiving “numerous thoughtful comments,” many of which “addressed matters that went well beyond the scope of the original proposed rule”

Comments on the proposed rule are due no later than May 5.


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