Developments at the MSPB: On November 8, 2013, the Merit Systems Protection Board (MSPB) published a Solicitation of Public Comments in the Federal Register (78 Fed.Reg. 67,076-67,077). Comments are due December 9, 2013.
In this Solicitation, the MSPB is seeking public input on proposed changes to the MSPB’s procedural regulations, and in particular on four different options for modifying the regulations that were developed by an MSPB working group. The four options all involve providing more specificity in the regulations for standards for proving jurisdiction in MSPB appeals. In some categories of appeals (for example, whistleblower reprisal complaints with an Independent Right of Action and constructive adverse action cases), these issues can be highly contentious. While some of the options essentially record preexisting standards on jurisdiction developed by the MSPB and the U.S. Court of Appeals for the Federal Circuit in case precedent, other options make more drastic changes. In particular, at least one of the options would significantly modify cut the ability of appellants to present their cases by allowing MSPB administrative judges to bar appellants from presenting claims (including affirmative defenses of USERRA violations and whistleblower reprisal claims) from the hearing in a manner somewhat similar to summary judgment. As a result, these proposed changes carry the possibility of drastically changing the overall dynamic of litigation at the MSPB.