Developments at the MSPB: On April 3, 2014, the Merit Systems Protection Board (MSPB) published a notice of proposed rulemaking in the Federal Register (79 Fed.Reg. 18,658-18,661). This proposed rulemaking affects the MSPB's jurisdictional standards in the major categories of appeals within the MSPB's jurisdiction. Comments on the proposed rulemaking are due by May 5, 2014.
This proposed rule follows up on MSPB's 2013 request for public comment on several proposed options for changing the MSPB's jurisdictional regulations, which was previously analyzed in this blog. The MSPB's proposed rule essentially adopts "Option B" from the 2013 request for public comment, which takes the approach of expressly codifying jurisdictional burdens of proof for parties in MSPB appeals in the Code of Federal Regulations. Previously, such matters were often defined in MSPB and Federal Circuit case precedent rather than regulation. In some categories of appeals (for example, whistleblower reprisal complaints with an Independent Right of Action and constructive adverse action cases), these jurisdictional issues can be highly contentious.
Perhaps the most important aspect of the MSPB's proposed rulemaking is its rejection of "Option C" from the 2013 request for public comment. "Option C" would have extended summary judgment-type procedures into the MSPB appellate arena. By dropping "Option C", the MSPB has signaled it continuing commitment to its long-standing policy of giving appellants their 'day in court' by ensuring that cases go to a hearing whenever possible for a decision on the merits.