[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Proposed Rules]
[Pages 67076-67077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26783]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 78, No. 217 / Friday, November 8, 2013 / 
Proposed Rules  

[[Page 67076]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Solicitation of Public Comments.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) invites 
public input concerning options the MSPB is considering to revise its 
regulations governing how jurisdiction is established over Board 
appeals.

DATES: Written comments are invited on or before December 9, 2013.

ADDRESSES: Submit your comments concerning this document by one of the 
following methods and in accordance with the relevant instructions:
    Email: [email protected]. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments to the MSPB's Federal 
Register Notice regarding jurisdiction. The MSPB asks that parties use 
email to submit comments if possible. Submission of comments by email 
will assist MSPB to process comments and speed future actions, 
including publication of a proposed rule.
    Fax: (202) 653-7130. Faxes should be addressed to William D. 
Spencer and contain a subject line indicating that the submission 
contains comments concerning the MSPB's Federal Register Notice 
regarding jurisdiction.
    Mail or other commercial delivery: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419.
    Hand delivery or courier: Comments should be addressed to William 
D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW., Washington, DC 20419, and delivered to the 5th floor 
reception window at this street address. Such deliveries are only 
accepted Monday through Friday, 9 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: As noted above, MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
made available online at the Board's Web site, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information or other information whose 
disclosure is restricted by law. Those desiring to submit anonymous 
comments must submit comments in a manner that does not reveal the 
commenter's identity, include a statement that the comment is being 
submitted anonymously, and include no personally-identifiable 
information. The email address of a commenter who chooses to submit 
comments using email will not be disclosed unless it appears in 
comments attached to an email or in the body of a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On June 7, 2012, the Board published a proposed rule that included 
a proposed amendment to 5 CFR 1201.56. 77 FR 33663. Now, as then, 5 CFR 
1201.56 provides without qualification that the Board's jurisdiction 
must be proved by preponderant evidence. In the proposed rule, the 
Board noted that 5 CFR 1201.56 is in conflict with a significant body 
of Board case law holding that certain jurisdictional elements may be 
established by making non-frivolous allegations. The Board therefore 
proposed to amend this regulation to allow the use of non-frivolous 
allegations to establish certain jurisdictional elements.
    The MSPB received numerous thoughtful comments concerning the 
proposed amendments to this regulation and, because many of the 
comments addressed matters that went well beyond the scope of the 
original proposed rule, the Board decided to withdraw the proposed rule 
and reconsider the existing regulation in light of the comments and 
internal discussions spurred by the comments.

Ongoing Review

    Shortly after the withdrawal of the proposed amendments to 5 CFR 
1201.56, the Board directed an internal MSPB working group (regulations 
working group) to thoroughly review 5 CFR 1201.56 and any related 
issues concerning the MSPB's jurisdiction. The regulations working 
group developed several options for the Board to consider, and the 
Board has determined that it would be appropriate to seek public 
comment on the various options prior to taking action.

Options Developed by the MSPB Regulations Working Group

    The exact text, summaries, and analyses of the options developed by 
the MSPB regulations working group are available for review at the 
MSPB's Web site (www.mspb.gov/regulatoryreview/index.htm). Included 
below is a short summary of each of the 4 options developed by the 
working group. In general, Options A and B are intended to make MSPB 
regulations consistent with existing Board and Federal Circuit case 
law. Options C and D would in some instances conflict with and 
supersede Board and Federal Circuit case law.

Option A

    This option would amend section 1201.56(b) to state that: (1) The 
appellant bears the burden of proof, generally by a preponderance of 
the evidence, on issues of jurisdiction, and (2) an administrative 
judge will inform the parties of the proof required in each case. This 
option would also amend section 1201.56(b) to state that an appellant 
generally bears the burden of proof by a preponderance of the evidence 
on issues of jurisdiction, timeliness, and all affirmative defenses, 
and make clear that the administrative judge will inform the parties of 
the proof required as to each defense. Finally, this option would amend 
5 CFR 1201.4 by transferring definitions of ``substantial evidence,'' 
``preponderance of the evidence,'' and ``harmful error'' from 1201.56 
and adding a definition of ``non-frivolous allegation.''

[[Page 67077]]

Option B

    This option amends section 1201.56 to address the burdens and 
degrees of proof applicable in cases other than: (1) An individual 
right of action (IRA) appeal under the Whistleblower Protection Act, 
(2) an appeal under the Veterans Employment Opportunities Act (VEOA), 
and (3) an appeal under the Uniformed Services Employment and 
Reemployment Rights Act (USERRA), in which the appellant alleges 
discrimination or retaliation in violation of 38 U.S.C. Sec.  4311. 
This option would also add a new regulation, 1201.57, that would 
address how an appellant can establish jurisdiction in the three types 
of appeals not covered by revised section 1201.56. Finally, this option 
would amend 5 CFR 1201.4 by transferring definitions of ``substantial 
evidence,'' ``preponderance of the evidence,'' and ``harmful error'' 
from 1201.56 and adding a definition for ``non-frivolous allegation.''

Option C

    This option attempts to clarify how jurisdiction should be 
established in Board proceedings by amending the Board's regulations to 
state that all Board appeals include ``who'' and ``what'' 
jurisdictional elements that must be established by preponderant 
evidence, and identify the 8 appeal types that require allegations as 
to specific merits issues in order to establish jurisdiction. This 
option would also include regulatory language stating that the MSPB is 
not required to hold an evidentiary hearing on matters on which the 
appellant bears the burden of proof when there is no genuine issue of 
material fact to be resolved.

Option D

    This option is the same as Option C, except that it does not 
include the proposed regulatory language authorizing an appeal to be 
decided without an evidentiary hearing when there is no genuine issue 
of material fact to be resolved. 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.

Comments Requested

    The Board seeks public input before taking action to amend 5 CFR 
1201.56 or otherwise alter its regulations governing how a party can 
establish jurisdiction over an appeal. Comments are invited concerning 
the 4 options developed by the regulations working group and/or any 
alternative approaches to improving the MSPB's regulations governing 
the establishment of MSPB jurisdiction over an appeal.
    The Board intends to consider all public comments prior to taking 
further action. However, the Board does not plan to respond to the 
comments it receives, either directly or in a subsequent Federal 
Register notice.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-26783 Filed 11-7-13; 8:45 am]
BILLING CODE 7401-01-P