Developments at the MSPB: On January 28, 2015, the Merit Systems Protection Board (MSPB) published a final rule in the Federal Register (80 Fed.Reg. 4,489-4,497). This final rulemaking affects the MSPB's jurisdictional standards in the major categories of appeals within the MSPB's jurisdiction. The final rule is effective March 30, 2015, and will be applicable to any appeal filed on or after that date.
This final rule is the last-development in a long-running rulemaking process which examined several proposed options for changing the MSPB's jurisdictional regulations, previously analyzed in this blog. The MSPB's final rule essentially adopts "Option B" from the MSPB's 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 final rule is what the MSPB opted not to change. The MSPB repeatedly clarified that its goal in this rulemaking process was merely to codify the prior caselaw, and not to make substantive changes. Most importantly, the MSPB rejected a proposal ("Option C" from the 2013 request for public comment) which would have extended summary judgment-type procedures into the MSPB appellate arena. By not selecting "Option C" and rebuffing comments seeking a summary judgment mechanism, the MSPB has signaled its 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.
The MSPB clarified that the final rule did not limit existing mechanisms for allowing appellants to prove jurisdiction over their claims. For example, the MSPB signaled that jurisdictional hearings and jurisdiction-related discovery still may be authorized by administrative judges, and that appellants can continue to cite to non-sworn witness statements and documents when establishing MSPB jurisdiction over their cases.