[Federal Register Volume 80, Number 18 (Wednesday, January 28, 2015)]
[Rules and Regulations]
[Pages 4489-4497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01575]
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Rules and Regulations
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Federal Register / Vol. 80, No. 18 / Wednesday, January 28, 2015 /
Rules and Regulations
[[Page 4489]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) hereby
amends its regulations governing how jurisdiction is established over
Board appeals.
DATES: Effective March 30, 2015, and applicable in any appeal filed on
or after March 30, 2015.
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: The Board has been considering for several
years changes to its regulations governing how jurisdiction is
established over MSPB appeals. On June 7, 2012, the Board proposed
amendments to 5 CFR 1201.56. 77 FR 33663. In that 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 nonfrivolous allegations. The Board therefore
proposed to amend this regulation to allow the use of nonfrivolous
allegations to establish certain jurisdictional elements.
On October 12, 2012, after receiving numerous thoughtful comments
concerning the proposed rule, the Board withdrew its proposed
amendments to 5 CFR 1201.56 in order to reconsider the matter. 77 FR
62350. The Board thereafter directed the MSPB regulations working group
to thoroughly reevaluate the Board's regulations relating to the
establishment of jurisdiction. The MSPB regulations working group
developed four options (A-D) and on November 8, 2013, the Board
published a request for public comments in the Federal Register. 78 FR
67076.
On April 3, 2014, after considering each of the four options
developed by the MSPB regulations working group and comments from the
public, the Board published a proposed rule. 79 FR 18658. This proposed
rule included a section-by-section analysis of the proposed amendments
to the Board's regulations.
Comments, Responses, and Changes to the Proposed Amendments
In response to publication of the proposed rule, the MSPB received
104 pages of comments from 19 commenters. These comments are available
for review by the public at: www.mspb.gov/regulatoryreview/index.htm.
As explained below, the Board carefully considered all public comments
and has decided to adopt the proposed rule as final with several
relatively minor changes.
A commenter criticized the MSPB for failing to explain in the
proposed rule why it had rejected the other options (A, C, and D). This
commenter further suggested that the proposed rule therefore would not
be entitled to deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984) (setting
forth the legal test for determining if a court should grant deference
to a Federal agency's interpretation of a statute which it
administers).
The Board appreciates the commenter's observation. The Board did
indeed consider all options, A-D. The Board used the MSPB regulations
working group (a committee of seasoned MSPB employees formed for the
accomplishment of this important task) to carefully review and present
options for the Board's consideration. The options initially developed
by the regulations working group were presented to the Board and
published for public comment in the Federal Register on November 8,
2013. Following several months of additional review by the regulations
working group, the options and public comments were presented to the
Board Members for a decision regarding how to proceed. Following
extensive review, the Board Members unanimously selected a revised
option B as the best choice and published it as a proposed rule on
April 3, 2014.
The Board Members selected revised option B because it was largely
consistent with current precedent and would clarify certain matters
without requiring potentially disruptive changes that, in the end,
would contribute little to the transparency and efficiency of MSPB
adjudications. For these reasons, the Board Members also believed that
option B was much less likely than options C and D to be successfully
challenged on appeal. Finally, the Board determined that option B was
unlikely to cause possible unintended consequences or process
disruption that would adversely affect the parties who appear before
the Board. Thus, in selecting option B, the Board decided that it was
the best option for all parties concerned, including pro se and
represented appellants, agencies, unions, attorneys, and the MSPB
itself.
Option A set forth a general framework for jurisdictional
determinations and informed the parties of only the general rules the
Board follows in allocating burdens of proof. This option also stressed
the important role that administrative judges play in explaining
applicable burdens of proof and requirements for establishing MSPB
jurisdiction. As to the latter point, option B likewise envisions an
important role for administrative judges. The Board declined to adopt
option A because this option, while consistent with current law and
practice, included minimal additional information but not the helpful
information contained in option B. Therefore, option A did not satisfy
the Board's intention to make the Board's regulations more
comprehensive and user-friendly.
The Board Members also carefully considered options C and D but
decided against adopting them for several reasons. First, as noted
above, the Board determined that the numerous major changes suggested
in options C and D would change the current scheme in a manner
inconsistent with long-standing precedent and procedures without
offering any real advantage to the Board or MSPB litigants. The Board
also was concerned that adoption of the more radical changes in these
two options might not be accorded Chevron deference and that the lack
of any real
[[Page 4490]]
advantage to options C and D made running such a risk unappealing.
The Board Members thus chose the option that they believed would
most efficiently serve the Board's critical mission of adjudicating
appeals. In addition, the Board, as the promulgator of these
regulations, has considerable discretion regarding, and is particularly
well-suited to speak to, its intent in adopting these regulations and
thus is entitled to Chevron deference as to its interpretation of these
regulations. See, e.g., Reizenstein v. Shinseki, 583 F.3d 1331, 1335
(Fed. Cir. 2009); Gose v. U.S. Postal Service, 451 F.3d 831, 837 (Fed.
Cir. 2006).
Finally, the MSPB would further note that other commenters, such as
the Office of Personnel Management (OPM), lauded the careful
consideration exhibited by the Board and had no significant objection
to the Board's selection of option B.
A commenter expressed the concern that new section 1201.57 would
improperly bar appellants from raising the ``principles'' embodied in
affirmative defenses in individual right of action (IRA), Veterans
Employment Opportunities Act of 1998 (VEOA), and Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) appeals as
required under 5 U.S.C. 7701(c)(2).
This commenter chiefly relies upon a nonprecedential Board decision
(Robinson v. Department of Housing and Urban Development, MSPB Docket
No. CH-3330-11-0845-I-1, 119 M.S.P.R. 21 (Table), Nonprecedential Final
Order (Dec. 26, 2012)), that appears to state that an affirmative
defense under 5 U.S.C. 7701(c)(2) may be raised in a VEOA appeal. Such
a holding is, however, inconsistent with longstanding Board precedent.
Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ] 12 (2001) (in
a VEOA appeal the Board cannot consider a claim of prohibited
discrimination under 5 U.S.C. 2302(b)(1) because VEOA does not grant
the Board the authority to consider claims for violations of laws other
than veterans' preference rules). Thus, the Board will not amend the
proposed rule as suggested by this commenter.
A commenter expressed concern regarding the clarity of MSPB
regulations, especially for pro se litigants and inexperienced counsel.
The commenter requested that the Board explain in the regulations how a
nonfrivolous allegation of jurisdiction under oath or penalty of
perjury is done. This commenter also suggested that the MSPB redraft
the proposed definitions related to jurisdiction in section 1201.4 and
include examples illustrating how an appellant can establish MSPB
jurisdiction by making nonfrivolous allegations. The commenter also
suggested that such examples should address how to establish MSPB
jurisdiction over constructive adverse actions and IRA appeals.
While we are cognizant that the regulations contain legal concepts
that may be complex and difficult to understand, especially for pro se
litigants, the complexity of the regulations is a product of the
complexity of the law itself. The Board has found that attempting to
clarify some concepts by restating them in plain English, or by
providing illustrative examples of them, may create a misleading or
incomplete definition of the concept. In particular, providing examples
of some of the circumstances that could support jurisdiction over
constructive action appeals raises a danger that they may limit the
circumstances that will be described by pro se appellants to establish
jurisdiction. Furthermore, the statement in the regulation is not
intended to be a detailed substantive description of an appellant's
burden in a particular type of appeal. Rather, the regulations
generally inform the reader that the appellant is expected to provide
specific factual allegations that describe a matter within the Board's
jurisdiction. Under court and Board precedent, the Board already
expects that MSPB administrative judges will fully inform an appellant
with specificity of his or her burden of proving the claim, the burden
of going forward with the evidence, and the types of evidence necessary
to make a nonfrivolous allegation. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). In addition, the
statement that the allegations ``generally'' should be under oath or
penalty of perjury is not an absolute evidentiary requirement. Where
appropriate, the Board may still find a nonfrivolous allegation of
jurisdiction based solely upon the documentation in the appeal file
without relying on a verified factual statement from the appellant.
Furthermore, making a statement under penalty of perjury is not a
significant hurdle. For example, in cases filed using the Board's e-
Appeal Online system (https://e-appeal.mspb.gov), the appellant can
easily meet it by merely checking a box in the initial appeal to verify
under penalty of perjury that the information being asserted on the
form is true and correct, based on the appellant's information and
belief.
In response to sections 1201.56(d) and 1201.57(e), which require
the MSPB administrative judge to provide the parties with information
relating to the requirements for establishing jurisdiction and other
relevant information, a commenter expressed a concern that show cause
orders issued by administrative judges are generally not tailored to
the facts of the particular appeal or written in plain and easily
understood language.
Administrative judges frequently must issue jurisdictional orders
that provide complex legal information early in the processing of a
case, when they still have only a partial understanding of the factual
basis of the appeal. As a result, the orders by necessity often must be
general and cannot be tailored to the specific appeal. In addition, as
with these regulations, it often is not possible to define the
applicable jurisdictional standards with precision, while still using
plain English. The administrative judges, however, are expected to
provide further explanation of the Board's jurisdictional standard in
appropriate cases. See Parker v. Department of Housing and Urban
Development, 106 M.S.P.R. 329, ] 7 (2007) (while the general statement
on jurisdiction in the acknowledgment order was appropriate when it was
issued, the appellant's reply necessitated an additional show cause
order setting forth a more explicit explanation about the evidence and
arguments he would need to present to nonfrivolously allege that his
appeal fell within the Board's jurisdiction).
A commenter suggested that the Board include a provision in its
regulations setting forth an agency's responsibility to disclose
relevant information to an appellant when an issue of jurisdiction or
timeliness is raised in a show cause order.
The Board agrees with the commenter that an agency is obligated to
disclose information relevant to the issue of jurisdiction. This
obligation has already been recognized in MSPB precedent, and
appellants are entitled to discovery of matters relevant to
jurisdiction. See Parker, 106 M.S.P.R. 392, ] 8. The Board, however,
does not feel it is necessary to codify this precedent in these
regulations. With regard to issues of timeliness, the agency generally
completes its duty to disclose relevant information once it establishes
that it provided the appellant with the appropriate notice of appeal
rights.
A commenter stated that it was unrealistic to require an appellant
to establish jurisdiction without first engaging in discovery and that
the proposed amendments would make it
[[Page 4491]]
more difficult to rely upon circumstantial evidence to establish MSPB
jurisdiction.
We believe that the proposed amendments will not result in making
it more difficult for an appellant to show that the Board has
jurisdiction over his appeal. As noted in our response to an earlier
comment, administrative judges issue acknowledgement orders and
additional orders if needed to inform the parties of their burdens. The
Board requires its administrative judges to provide a fair and just
adjudication and to rule on relevant evidence. 5 CFR 1201.41; see also,
e.g., Hall v. Department of Defense, 119 M.S.P.R. 180, ]] 4, 5 (2013).
Administrative judges also have wide discretion in matters pertaining
to discovery, and an administrative judge's discovery rulings will not
stand if they are too restrictive. See, e.g., Jenkins v. Environmental
Protection Agency, 118 M.S.P.R. 161, ] 27 (2012).
A commenter questioned why the Board did not include USERRA
reemployment claims under proposed section 1201.57 and suggested that
this section be amended to cover such claims.
From 1979 until 1994, a claim that an agency violated an
individual's right under USERRA's predecessor statute to return to
civilian employment following military duty was within the Board's
appellate jurisdiction under regulations issued by OPM. See 1979
through 1993 versions of 5 CFR part 353, subparts C & D. Such
reemployment appeals were governed by section 7701 procedures. See
Britton v. Department of Agriculture, 23 M.S.P.R. 170, 173 (1984).
USERRA, enacted in 1994, made, among other things, the basis for Board
jurisdiction over reemployment appeals statutory. See 38 U.S.C. 4324.
The Board has no basis for concluding that in enacting USERRA
Congress meant to bring reemployment appeals outside the coverage of 5
U.S.C. 7701; the effect of such a change would have been to place the
burden of proof on the merits on the appellant, when under section
7701(c)(2)(B) it is on the agency, Britton, 23 M.S.P.R. at 173, and to
eliminate an appellant's right to raise an affirmative defense under
section 7701(c)(2). Such changes would have been to the detriment of
individuals seeking to vindicate their reemployment rights following
military duty, and there is no indication that in enacting USERRA
Congress intended such changes to Board procedures. Accordingly, the
Board will not include USERRA reemployment appeals in section 1201.57,
as that section covers appeals in which the appellant bears the burden
of proof on the merits and may not raise affirmative defenses.
Nevertheless, the commenter is correct in stating that the Board
has taken jurisdiction in USERRA reemployment appeals based on
nonfrivolous allegations. See Silva v. Department of Homeland Security,
112 M.S.P.R. 362, ] 19 (2009); Groom v. Department of the Army, 82
M.S.P.R. 221, ] 9 (1999); accord DePascale v. Department of the Air
Force, 59 M.S.P.R. 186, 187 n.1 (1993) (arising under USERRA's
predecessor statute). The current regulatory revisions generally aim to
codify the case law-based methods for establishing jurisdiction in
different types of appeals, however, and there is no reason to use this
occasion to place a higher jurisdictional burden than currently exists
on appellants in USERRA reemployment appeals. Thus, it is appropriate
to except USERRA reemployment appeals from the requirement at section
1201.56(b)(2)(A) that jurisdiction be established by preponderant
evidence. The final rule provides an exception to section
1201.56(b)(2)(A) for cases in which the appellant asserts a violation
of his right to reemployment following military duty under 38 U.S.C.
4312-4314.
Several commenters expressed a concern that the MSPB was raising
jurisdictional standards in constructive adverse action cases without
any stated rationale for such action.
The Board understands the commenters' concerns regarding the
proposed rule Sec. 1201.4(s), but the rule neither raises
jurisdictional standards in cases before the Board, nor alters Board
precedent concerning the type of documentation that can be used to
satisfy the burden of making a nonfrivolous allegation. It is merely to
remind the parties of obligations imposed by 18 U.S.C. 1001(a). The
definition of ``nonfrivolous allegation'' in the first sentence of
proposed rule Sec. 1201.4(s) is based on longstanding Board precedent.
The second sentence in the proposed rule further explains that, when an
allegation is made under oath or penalty of perjury, it will generally
be considered nonfrivolous if it is more than conclusory, plausible on
its face and material to the legal issues in the appeal. The Board
furthers note that, in this context, an allegation is made under oath
or penalty of perjury if it is accompanied by the following: ``I
declare under penalty of perjury that the foregoing is true and correct
to the best of my knowledge, information and belief. Executed on
(date). (Signature).'' See 28 U.S.C. 1746; Cobel v. Norton, 391 F.3d
251, 260 (D.C. Cir. 2004).
Several commenters stated that the MSPB was inappropriately
limiting the type of evidence that could be used for satisfying the
burden of making a nonfrivolous allegation. A commenter was concerned
that the Board was improperly limiting such evidence to a statement
under penalty of perjury while disallowing the use of evidence, such as
an email.
We disagree with the commenter's statement that the Board is
inappropriately limiting the type of evidence that could be used for
satisfying the burden of making a nonfrivolous allegation.
Several commenters questioned whether the MSPB could modify the
definition of ``nonfrivolous allegation'' in a regulation because that
term has already been defined in controlling U.S. Court of Appeals for
the Federal Circuit precedent interpreting jurisdiction-conferring
statutes and OPM regulations.
As previously stated, the definition of ``nonfrivolous allegation''
in proposed rule 1201.4(s) is based on longstanding Board precedent.
Further, while we are cognizant of the U.S. Court of Appeals for the
Federal Circuit's precedent analyzing the Board's case law applying
nonfrivolous allegation standards, we disagree with the commenters'
conclusion that this precedent is binding. The court has routinely held
that the Board has properly applied the nonfrivolous allegation
standard. We believe this court review is instructive, rather than
directive. In addition, we believe it is not appropriate to determine
here whether the court owes deference to the Board's interpretation of
its own jurisdiction under this particular regulation and instead
believe such matters should properly be handled in due course on a
case-by-case basis. See Chevron, 467 U.S. at 842-45.
Several commenters asked the Board to amend 5 CFR 1201.56 to add a
new subparagraph (e) addressing when an appellant is entitled to a
jurisdictional hearing. A commenter also suggested that the MSPB
include in the final rule a procedure under which the Board would not
be required to hold an evidentiary hearing on matters on which an
appellant bears the burden of proof when there is no genuine issue of
material fact to be resolved.
The Board believes that this proposed amendment is not necessary
because the general definition of a nonfrivolous allegation in the
proposed regulations and the show cause orders that administrative
judges routinely issue in appeals tailored to a specific case are
sufficient to inform an appellant of what
[[Page 4492]]
he or she will be required to do to obtain a jurisdictional hearing.
A commenter suggested that the MSPB reconsider drafting section
1201.5 from option C because in the commenter's opinion option C more
clearly identified matters that must be proven by preponderance of the
evidence.
The Board carefully considered the four options (A-D) and decided
against incorporating the referenced language contained in option C
because (a) such information is already communicated to appellants in
show cause orders, and (b) the inclusion of the level of detail set
forth in the referenced section of option C would require frequent
updates to the Board's regulations to reflect changes in the law and
bind the Board to the contents of its regulations when the flexibility
to reconsider past decisions is sometimes needed.
A commenter identified the jurisdiction matrix produced by the MSPB
regulations working group as a useful tool and proposed that the MSPB
include this document in its regulations or on its Web site.
The Board appreciates that the commenter found this table so useful
and will undertake to maintain a similar document summarizing MSPB
jurisdiction on the MSPB Web site.
A commenter suggested that the Board should replace the term
``nonfrivolous allegation'' with a term that, according to the
commenter, could be more easily understood and which has the same
meaning.
While the Board understands the commenter's concern, it believes
that it would simply be impractical to change this well-established
legal term at this stage. The term has been adopted in case law by both
the Board and the U.S. Court of Appeals for the Federal Circuit.
Moreover, revised 5 CFR 1201.4(s) provides a definition for this term
that the Board expects will be easily understood by practitioners and
appellants, including pro se appellants.
A commenter suggested section 1201.4(s) would be improved if the
MSPB added examples of a ``conclusory statement'' and a statement that
the MSPB would consider to be ``more than conclusory.''
The Board appreciates that examples are often an effective means of
communicating legal concepts and so has included examples elsewhere in
its regulations. However, at the present time, the Board believes it
most appropriate to develop the meaning of these terms through case law
and perhaps add examples to its regulations at a later date.
A commenter criticized the proposed rule for failing to recognize
that all MSPB appeals include ``what'' and ``who'' jurisdictional
elements that always require proof by preponderant evidence.
This comment appears to recommend that the Board adopt a major
structural element of option C, a potential approach to making
jurisdictional determinations that was previously published on the
Board's Web site but that the Board Members chose not to propose in
this rulemaking. The main structural element of option B, the approach
that the Board has proposed (with minor modification), is to
distinguish between categories of appeals that are covered by 5 U.S.C.
7701 procedures and those that are not. Options B and C were formulated
as comprehensive methods for making jurisdictional determinations, and
the Board sees no compelling reason to import a major element of option
C into option B.
A commenter questioned whether the MSPB erred by failing to justify
requiring nonfrivolous allegations of jurisdictional elements that are
also merits issues in IRA, VEOA, USERRA, and other types of appeals.
This commenter explained that requiring nonfrivolous allegations in
such appeals was inappropriate where the relevant statutes provide that
an individual who ``alleges,'' ``claims,'' ``believes,'' or
``considers'' that an agency acted in a particular way is entitled to
appeal to the MSPB. Therefore, the commenter concluded that the Board's
requirement of raising nonfrivolous allegations to establish
jurisdiction in these appeals would be found ``not in accordance with
law'' under the Administrative Procedures Act (APA), 5 U.S.C.
706(2)(A).
The proposed revision in the regulations is primarily intended to
accurately reflect current, controlling Board and court precedent for
establishing MSPB's jurisdiction in various types of appeals. We doubt
that this precedent would be subject to collateral attack in an APA
proceeding because it already has been subjected to years of court
review. In addition, the Board carefully considered a comprehensive
reform of our jurisdictional standards (options C and D) but concluded
that introducing such changes in our standards would not be the best
option to follow.
A commenter expressed his preference for option C and noted his
concern that the proposed rule improperly treated purely merits issues
as jurisdictional issues and left undisturbed case law in which the
MSPB and the U.S. Court of Appeals for the Federal Circuit improperly
classified merits issues as jurisdictional requirements.
The Board does not agree with the comment that the requirement of
raising nonfrivolous allegations to establish jurisdiction in certain
appeals would be found not in accordance with law. The Board has
proposed revisions to its jurisdictional regulations to clarify the
burdens on parties and to insure that the Board's regulations are
consistent with both statutes and case law. The Board is not revising
its jurisdictional regulations for the purpose of reversing controlling
precedent. Therefore, we agree that the regulations codify and endorse
Board and U.S. Court of Appeals for the Federal Circuit precedent. The
Board believes that such consistency and clarification are helpful to
the parties it serves. Also, as noted earlier, the Board expects an
administrative judge to provide notice to an appellant of the specific
jurisdictional burdens raised in an appeal.
A commenter stated that the proposed rule improperly treated the
exhaustion requirement in IRA and VEOA appeals as a jurisdictional
requirement.
According to the commenter, U.S. Supreme Court precedent treats
administrative exhaustion requirements that are ``analogous to those in
IRA and VEOA appeals'' as ``claim processing rules'' and not
jurisdictional requirements. The Supreme Court has never directly
opined on the nature of administrative exhaustion requirements in the
IRA or VEOA context. Furthermore, Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001), an appellate court
decision that is binding on the Board, squarely holds that exhaustion
of the Office of Special Counsel (OSC) complaint process is a
jurisdictional prerequisite to an IRA appeal. The Yunus decision is
consistent with other appellate court decisions holding that filing of
an administrative claim is a jurisdictional prerequisite to suing the
government in tort, GAF Corp. v. United States, 818 F.2d 901, 904 (D.C.
Cir. 1987), in contract, Maropakis Carpentry, Inc. v. United States,
609 F.3d 1323, 1327 (Fed. Cir. 2010), and for discrimination in
employment, Hays v. Postmaster General, 868 F.2d 328, 330-31 (9th Cir.
1989). The Board is not persuaded that it is ``improper'' to treat the
exhaustion requirement in IRA and VEOA appeals as jurisdictional
prerequisites to filing such appeals.
A commenter observed that the Board may not affirm any agency
action or decision, including in IRA, VEOA, and USERRA appeals, where
the agency
[[Page 4493]]
violated the appellant's constitutional rights.
The commenter does not cite any decision in which the Board has
either considered or declined to consider a constitutional claim in an
IRA, VEOA, or USERRA appeal. Moreover, the commenter does not point to
any portion of the laws conferring jurisdiction over these three types
of appeals that gives the Board the authority to consider
constitutional claims. While it is true that in appeals governed by 5
U.S.C. 7701--i.e., appeals other than IRA, VEOA, and USERRA appeals--
the Board will consider constitutional claims, in doing so the Board
will identify the constitutional interest at stake as part of its
analysis. For example, the Board will consider a claim that an agency
removed an individual without affording him minimum due process in
accordance with the Fifth Amendment, so long as the individual was the
type of employee with a constitutionally-protected property interest in
continued Federal employment. E.g., Clark v. U.S. Postal Service, 85
M.S.P.R. 162, ] 1 (2000). At least with respect to VEOA and USERRA
appeals, it is not clear what constitutionally-protected interests
might be implicated in the most frequently-arising fact patterns, where
individuals seek to vindicate statutory interests such as the right to
veterans' preference in initial employment, the right to compete for
employment, the right to reemployment following military duty, and the
right to be free of discrimination in employment based on prior
military service or a present obligation to perform such service. For
these reasons, the Board believes that the basis and scope of its
authority to adjudicate constitutional claims in IRA, VEOA, and USERRA
appeals is best left to development in the case law.
A commenter suggested that 1201.57 should be amended to state with
greater specificity the standards of proof for each of the appeals
covered by that regulation.
The Board has proposed the revisions to its jurisdictional
regulations to insure that they are consistent with statutes, other
regulations, and case law. The Board considered stating the specific
standards or elements for establishing jurisdiction for each type of
appeal in the revised regulations but ultimately concluded that the
inclusion of this information may have the unintended effect of
confusing the reader, especially a pro se appellant. In addition, the
Board's jurisdiction is a continually evolving concept. As a result,
the Board also was concerned that the regulations would quickly become
obsolete or inaccurate if specific standards for establishing
jurisdiction in each type of appeal were provided in the regulations.
Finally, as noted several times earlier, the Board expects
administrative judges to provide notice to the appellant of the
specific jurisdictional burdens raised in the appeal.
A commenter recommended that section 1201.57(e) should be amended
to require the jurisdictional notice to be issued as soon as
practicable and to allow the parties additional time, if needed, to
complete discovery before the jurisdictional question is resolved.
The Board appreciates the commenter's valid concern. As the
commenter correctly notes, administrative judges typically do issue
jurisdictional show cause orders as soon as practicable, often within
weeks after an appeal is filed. However, in certain cases, new
questions of jurisdiction materialize only after the parties file
pleadings that highlight emerging issues. As a result, the Board
believes that its practice is working well for most cases and that, as
a rule, administrative judges usually issue jurisdictional notices at
the appropriate time. As for the comment about allowing the parties
additional time to complete discovery before the jurisdictional
question is resolved, the Board believes, as stated earlier, that such
matters are best left to the administrative judges' discretion on a
case-by-case basis.
A commenter suggested that the Board should undertake additional
study to determine whether its regulations should address any
additional jurisdictional pleading requirements that may arise when
matters are made appealable to the Board by OPM regulation, rather than
by statute.
The commenter notes that options C and D, previously posted on the
Board's Web site as potential approaches to jurisdictional
determinations, contained detailed pleading requirements for some types
of appeals authorized by OPM regulations. The Board is aware that case
law sets forth specific substantive requirements for establishing
jurisdiction over certain kinds of regulatory appeals, such as those
brought by probationers or that challenge employment practices, that
may not be applicable in other kinds of cases. All appeals authorized
by OPM regulations are covered by 5 U.S.C. 7701, however, and the
purpose of the current rulemaking is to distinguish broadly between how
jurisdiction is established in appeals that are covered by, and those
that are not covered by, section 7701. Laying out substantive
jurisdictional tests for different kinds of appeals within one of those
categories is best left to developing case law.
A commenter suggested that the Board reorder paragraphs (b) and (c)
of 1201.57 to reinforce the rule that the Board cannot bypass a
jurisdictional question to reach the merits of a case.
The Board agrees with this suggestion and will make the minor edit
necessary by switching the order of the paragraphs.
A commenter found the language in 1201.57(c) was ambiguous where it
states that the paragraph applies ``[e]xcept for matters described in
subsections (b)(1) and (3) of this section above.''
We agree and have amended this provision to make it clearer.
A commenter proposed a revision of 1201.57(c) on the grounds that
an appellant should be required to make more than a nonfrivolous
allegation that the appeal was timely filed and that the preponderance
of the evidence standard should apply to timeliness issues.
The Board believes that the current language in the regulations is
appropriate and protects the rights of appellants to show by
preponderant evidence that their appeals were timely filed or to
establish good cause for an untimely filing, consistent with long-
established precedent. The current language also accurately reflects
that, for an appellant to be entitled to a hearing on the timeliness
issue, he or she must raise a nonfrivolous allegation that the appeal
was timely filed. That said, the commenter correctly notes that
timeliness and jurisdictional questions are not always inextricably
intertwined and so administrative judges need to carefully review the
record in such cases to provide the parties with the proper notice and
determine if a hearing is warranted under the circumstances.
A commenter asserted that the amendments to the Board's regulations
would increase the number of constructively discharged employees who
are unsuccessful before the Board both on the merits and in
establishing the MSPB's jurisdiction.
The Board does not agree. The regulatory revisions under discussion
are certainly not intended to make it more difficult to establish
jurisdiction or to prevail in a constructive adverse action appeal.
Instead, the Board is attempting to codify principles in case law that
are not fully reflected in the Board's regulations. The commenter's
true concern appears to be that the Board's ``current practice''
results in appellants not ``winning when . . . they ought to'' in
constructive adverse action appeals. However, this rulemaking is not
intended to work a fundamental
[[Page 4494]]
change in the way the Board approaches such appeals.
A commenter objected to Board's use of the term ``conclusory'' as
well as the Board's definition of that term.
The Board believes that the use of the term is clear to convey the
idea that something is conclusory if it is an inference that has no
proof but is stated nonetheless. In other words, something is
conclusory if it consists of or relates to a conclusion or assertion
for which no supporting evidence is offered. The definition of
``conclusory'' is easily obtained with an online search although the
word may not be found in older or abridged dictionaries. Yet as the
commenter correctly notes, recent editions of Blacks' Law Dictionary
define conclusory as ``expressing a factual inference without stating
the underlying facts on which the inference is based.'' BLACK'S LAW
DICTIONARY (7th ed. 1999); id. (8th ed. 2004); id. (9th ed. 2009).
A commenter suggested that the Board should abandon trying to
define what a nonfrivolous allegation is, and should instead decide
jurisdiction the way Federal courts do.
The commenter does not specify how he believes the Board is
determining questions of jurisdiction differently than do Federal
courts. Nonetheless, the commenter correctly observes that the Board is
a tribunal of limited jurisdiction and so the Board believes that it is
properly adjudicating jurisdictional issues that come before it,
including determining if a nonfrivolous allegation has been raised.
A commenter suggested that the Board should revise its definition
of ``preponderance of the evidence'' by adopting ``the standard law
dictionary definition.''
The Board currently defines ``preponderance of the evidence'' as
``[t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.'' The
proposed rule would move this definition from section 1201.56 to
section 1201.4 but would leave the substance of the definition
unchanged. Citing a law dictionary, the commenter suggests that the
Board change the definition to ``evidence which is more convincing than
the evidence offered in opposition to it. It is [the] degree of proof
which is more probable than not.'' The commenter believes that the
current definition creates confusion because it is framed in terms of
what a ``reasonable person'' would find rather than what an
administrative judge should find.
The Board declines to adopt this suggestion. Over a period of
decades, the Board's primary reviewing court has cited and applied the
Board's definition of ``preponderance of the evidence'' without
questioning its validity or clarity. E.g., Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002); Jackson v. Veterans
Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985). Changing the
definition would allow parties to argue before the court that the new
definition has a different meaning than the old one, and the Board
would then need to convince the court that no change in meaning was
intended. If the Board agreed with the commenter that the current
definition creates confusion, then it might be worth the risk of having
the court find that a revised definition has a new meaning, but the
Board is not aware of widespread confusion over the wording of the
current definition.
In fact, the current definition of ``preponderance of the
evidence'' stands in clear contrast to the definition of ``substantial
evidence.'' The former definition focuses on what a reasonable person
``would accept'' as sufficient to prove a contested fact, whereas the
latter focuses on what a reasonable person ``might accept'' as
sufficient to prove a contested fact ``even though other reasonable
persons might disagree.'' This clear contrast would be lost if the
reference to a ``reasonable person'' were removed from the definition
of ``preponderance of the evidence'' as the commenter suggests.
A commenter stated that the Board lacks authority to issue 5 CFR
1208.23(b) limiting the right to an evidentiary hearing to cases that
are timely filed and within the Board's jurisdiction.
The commenter appears to object to the Board's reference to 5 CFR
1208 if an individual would like additional information regarding VEOA
or USERRA appeals. However, 5 CFR 1208 is not a proposed rule and
therefore is not subject to the notice and comment of the regulations
at issue. Furthermore, the Board's proposed regulations do not provide
for summary judgment. It is well settled that a VEOA complainant does
not have an unconditional right to a hearing before the Board, and a
USERRA claimant is entitled to a hearing on the merits only upon
establishing Board jurisdiction over his appeal. Downs v. Department of
Veterans Affairs, 110 M.S.P.R. 139, ]] 17-18 (2008). The Board may
decide a VEOA appeal on the merits without an evidentiary hearing only
where there is no genuine dispute of material fact and one party must
prevail as a matter of law. Jarrard v. Department of Justice, 113
M.S.P.R. 502, 506 (2010).
A commenter, citing Kirkendall v. Department of the Navy, 479 F.3d
830, 834 (Fed. Cir. 2009), asserted that 5 U.S.C. 7701 applies to VEOA
appeals and questioned the Board's citation to Goldberg v. Department
of Homeland Security, 99 M.S.P.R. 660 (2005), for the proposition that
the Board lacks jurisdiction to adjudicate an affirmative defense under
5 U.S.C. 7701(c)(2) in these appeals.
After reviewing Kirkendall, Goldberg and related precedent, the
Board remains convinced that it lacks jurisdiction over affirmative
defenses in a VEOA or USERRA appeal. In particular, we note that the
U.S. Court of Appeals for the Federal Circuit found in Kirkendall that
the failure of Congress to specifically reference section 7701 in a
statute, such as USERRA, demonstrates that it did not necessarily want
all provisions of section 7701 to apply to the Board's review of the
claim. Furthermore, we note that the court has affirmed the Board's
interpretation of the VEOA statute. For instance, in a veterans'
preference case, which was decided on the merits, the court affirmed
the Board's finding that it did not have jurisdiction over the
appellant's affirmative defenses of discrimination and harmful
procedural error. Graves v. Department of the Navy, 451 F. App'x 931
(Fed. Cir. 2011). Accordingly, the Board declines to change its
position that it lacks jurisdiction over affirmative defenses in a VEOA
or USERRA appeal.
A commenter asserted that the Board may not ``overrule'' section
1201.56 in VEOA appeals by adjudication because the Board lacks the
delegated authority to do so.
At the outset, the Board notes that it has the authority to review
or modify its regulations. 5 U.S.C. 1204(h) and 7701(k).
The commenter, though, suggests that the Board tried to
``overrule'' 5 CFR 1201.56 by adjudication in the cases of Donaldson v.
Department of Homeland Security, 119 M.S.P.R. 489 (2013) (Table);
Donaldson v. Department of Homeland Security, 119 M.S.P.R. 244 (2013)
(Table); Donaldson v. Department of Homeland Security, 118 M.S.P.R. 219
(2012) (Table); Donaldson v. Department of Homeland Security, 117
M.S.P.R. 609 (2012) (Table); Donaldson v. Department of Homeland
Security, MSPB Docket No. DC-1221-12-0356-B-1 (Initial Decision, Jan.
9, 2013); Donaldson v. Department of Homeland Security, MSPB Docket No.
DC-300A-12-0619-I-1 (Initial Decision, Sep. 17, 2012); Donaldson v.
[[Page 4495]]
Department of Homeland Security, MSPB Docket No. DC-1221-12-0356-W-1
(Initial Decision, June 28, 2012); Donaldson v. Department of Homeland
Security, MSPB Docket No. DC-3330-11-0636-I-1 (Aug. 10, 2011); and
Donaldson v. Department of Homeland Security, MSPB Docket No. DC-3330-
11-0637-I-1 (July 29, 2011).
According to the commenter, the Board's decisions in Donaldson
contravened the U.S. Court of Appeals for the Federal Circuit's holding
in Tunik v. Merit Systems Protection Board, 407 F.3d 1326 (Fed. Cir.
2005). The Board disagrees with the commenter's characterization of
what the Board did in the Donaldson cases. In any event, the U.S. Court
of Appeals for the Federal Circuit repeatedly concluded that the Board
correctly decided the Donaldson cases, including the jurisdictional
determinations therein. See Donaldson v. Department of Homeland
Security, 528 F. App'x 986 (Fed. Cir. 2013) (Table) (the court affirmed
the Board's decision that the appellant was not entitled to relief
under VEOA); Donaldson v. Merit Systems Protection Board, 527 F. App'x
945 (Fed. Cir. 2013) (Table) (the court held that the Board correctly
ruled that it lacked jurisdiction over the appellant's whistleblower
claim); Donaldson v. Department of Homeland Security, 495 F. App'x 53
(Fed. Cir. 2012) (Table) (the court affirmed the Board's decision that
the agency did not violate USERRA and VEOA when it failed to select him
for positions). Notwithstanding the Board's holdings in the Donaldson
appeals, the court in Tunik pointed out that there are ``numerous
exceptions'' to the notice and comment rulemaking requirements of 5
U.S.C. 553. Tunik, 407 F.3d at 1341-45. In particular, the court in
Tunik indicated that the Board is authorized to repeal a regulation
through notice and comment procedures, which is exactly what the Board
is doing here. Tunik, 407 F.3d at 1345. The commenter appears to
concede this point, when he notes that the Board is not precluded from
repealing the regulation in accordance with section 553(b).
A commenter questioned the validity of 5 CFR part 1208 and 1201.57
because these regulations allegedly inadequately protect veterans'
preference rights.
The commenter asserts that Congress intended greater protection for
preference-eligible veterans than the aforementioned regulations
provide, but the commenter does not provide any examples. Again, the
main purpose of this rulemaking is to make the Board's regulations
consistent with how the Board actually makes jurisdictional
determinations, as explained in the case law.
A commenter questioned why the Board had abandoned beneficial
amendments proposed in 2012, such as allowing litigating parties to
file reply briefs and steps to facilitate settlement.
The amendments proposed by the Board in 2012 (77 FR 33663) were not
abandoned. These proposed amendments were adopted in a final rule
published later that year (77 FR 62350). The final rule authorized the
filing of reply briefs (5 CFR 1201.114(a)) and included steps to
facilitate settlement (5 CFR 1201.28).
A commenter objected to the Board's proposal to limit the issues
that may be raised in an IRA appeal. The commenter specifically
objected to the fact that agencies no longer need to establish the
justification for a personnel action in an IRA appeal.
The Board does not agree with the commenter that the Board's
regulations ease an agency's requirement to prove misconduct if an
employee has first chosen to file with the OSC. The Board reminds the
commenter that 5 U.S.C. 1221 indicates that corrective action will not
be ordered even if an individual establishes that he/she has disclosed
that a protected disclosure was a contributing factor in a personnel
action, if an agency demonstrates by clear and convincing evidence that
it would have taken the same personnel action in the absence of the
disclosure. The agency is thus still required to justify its personnel
action.
A commenter suggested that the Board move proposed paragraph
1201.56(d) and 1201.57(e) to a newly created section ``1201.41(d)
Proof.''
The Board considered merging into a single provision this
requirement for administrative judges to provide the parties notice of
the proof required as to the issues in each type of appeal. However, we
ultimately determined that the parties, particularly pro se appellants,
would be less likely to be confused if it were set forth separately in
1201.56 and 1201.57.
A commenter argued that the term ``standing'' in 1201.57(b)(3) was
an inappropriate way to describe a jurisdictional element that must be
established by a preponderance of the evidence. The commenter suggested
that the term ``coverage'' would be more appropriate.
As the commenter points out, under 1201.57(b)(3), a party must
prove, by preponderant evidence, that he or she ``[h]as standing to
appeal'' an action, but only ``when disputed by the agency or
questioned by the Board.'' The regulation defines ``standing'' to mean
that the individual ``falls within the class of persons who may file an
appeal under the law applicable to the appeal.'' The Board believes
that the term ``standing'' under 1201.57(b)(3) is appropriate and
consistent with court and Board precedent. Standing is a threshold
requirement that implicates jurisdiction and is ```perhaps the most
important' condition for a justiciable claim.'' Allen v. Wright, 468
U.S. 737, 750 (1984). Therefore, the question of standing is a
preliminary issue that may be raised by the agency or the Board, to be
explored as part of the Board's inquiry into whether it has
jurisdiction over a case. Silva, 112 M.S.P.R. 362, ] 6 & n.2
A commenter expressed a concern that the Board's regulations and
case law will impair the ability of appellants in IRA appeals to
establish jurisdiction by requiring the production of documents, such
as an OSC decision to terminate its investigation, to satisfy the OSC
exhaustion requirement. This commenter noted that 5 U.S.C. 1221(f)(2)
states that OSC's decision to terminate its investigation may not be
considered in an IRA appeal.
The commenter does not actually seem to take issue with any portion
of the proposed regulations. Instead, the commenter's true concern is
that the Board has changed the test for OSC exhaustion in recent Board
precedent. The Board believes that such matters are best addressed in
developing case law.
A commenter suggested that information concerning the degree and
burden of proof borne by the appellant should come exclusively from the
administrative judge and the Board should overturn case law that allows
such advice to be exclusively communicated to an appellant in an
agency's motion to dismiss.
It is well-settled that an administrative judge's failure to
provide proper notice, as required by Burgess, 758 F.2d at 643-44, can
be cured if the agency's pleadings contain the notice that was lacking
in the acknowledgement order or if the initial decision itself puts the
appellant on notice of what to do to establish jurisdiction, thus
affording the appellant with the opportunity to meet the jurisdictional
burden in a petition for review. The Board believes that restricting
notice to that which is provided in the acknowledgement order would
unfairly limit the opportunity to later clarify matters that are
complicated or unclear when first filed during the processing of an
appeal.
[[Page 4496]]
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure.
Accordingly, for the reasons set forth in the preamble, the Board
amends 5 CFR part 1201 as follows:
PART 1201--PRACTICES AND PROCEDURES
0
1. The authority citation for 5 CFR part 1201 continues to read as
follows:
Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331,
unless otherwise noted.
0
2. In Sec. 1201.4, add paragraphs (p), (q), (r), and (s) to read as
follows:
Sec. 1201.4 General definitions.
* * * * *
(p) Substantial evidence. The degree of relevant evidence that a
reasonable person, considering the record as a whole, might accept as
adequate to support a conclusion, even though other reasonable persons
might disagree. This is a lower standard of proof than preponderance of
the evidence.
(q) Preponderance of the evidence. The degree of relevant evidence
that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be
true than untrue.
(r) Harmful error. Error by the agency in the application of its
procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence
or cure of the error. The burden is upon the appellant to show that the
error was harmful, i.e., that it caused substantial harm or prejudice
to his or her rights.
(s) Nonfrivolous allegation. A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. An
allegation generally will be considered nonfrivolous when, under oath
or penalty of perjury, an individual makes an allegation that:
(1) Is more than conclusory;
(2) Is plausible on its face; and
(3) Is material to the legal issues in the appeal.
0
3. Revise Sec. 1201.56 to read as follows:
Sec. 1201.56 Burden and degree of proof.
(a) Applicability. This section does not apply to the following
types of appeals which are covered by Sec. 1201.57:
(1) An individual right of action appeal under the Whistleblower
Protection Act, 5 U.S.C. 1221;
(2) An appeal under the Veterans Employment Opportunities Act, 5
U.S.C. 3330a(d);
(3) An appeal under the Uniformed Services Employment and
Reemployment Rights Act, 38 U.S.C. 4324, in which the appellant alleges
discrimination or retaliation in violation of 38 U.S.C. 4311; and
(4) An appeal under 5 CFR 353.304, in which the appellant alleges a
failure to restore, improper restoration of, or failure to return
following a leave of absence.
(b) Burden and degree of proof--(1) Agency. Under 5 U.S.C.
7701(c)(1), and subject to the exceptions stated in paragraph (c) of
this section, the agency bears the burden of proof and its action must
be sustained only if:
(i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is
supported by substantial evidence (as defined in Sec. 1201.4(p)); or
(ii) It is brought under any other provision of law or regulation
and is supported by a preponderance of the evidence (as defined in
Sec. 1201.4(q)).
(2) Appellant. (i) The appellant has the burden of proof, by a
preponderance of the evidence (as defined in Sec. 1201.4(q)), with
respect to:
(A) Issues of jurisdiction, except for cases in which the appellant
asserts a violation of his right to reemployment following military
duty under 38 U.S.C. 4312-4314;
(B) The timeliness of the appeal; and
(C) Affirmative defenses.
(ii) In appeals from reconsideration decisions of the Office of
Personnel Management (OPM) involving retirement benefits, if the
appellant filed the application, the appellant has the burden of
proving, by a preponderance of the evidence (as defined in Sec.
1201.4(q)), entitlement to the benefits. Where OPM proves by
preponderant evidence an overpayment of benefits, an appellant may
prove, by substantial evidence (as defined in Sec. 1201.4(p)),
eligibility for waiver or adjustment.
(c) Affirmative defenses of the appellant. Under 5 U.S.C.
7701(c)(2), the Board is required to reverse the action of the agency,
even where the agency has met the evidentiary standard stated in
paragraph (b) of this section, if the appellant:
(1) Shows harmful error in the application of the agency's
procedures in arriving at its decision (as defined in Sec. 1201.4(r));
(2) Shows that the decision was based on any prohibited personnel
practice described in 5 U.S.C. 2302(b); or
(3) Shows that the decision was not in accordance with law.
(d) Administrative judge. The administrative judge will inform the
parties of the proof required as to the issues of jurisdiction, the
timeliness of the appeal, and affirmative defenses.
Sec. Sec. 1201.57 and 1201.58 [Redesignated as Sec. Sec. 1201.58 and
1201.59]
0
4. Redesignate Sec. Sec. 1201.57 and 1201.58 as Sec. Sec. 1201.58 and
1201.59, respectively.
0
5. Add new Sec. 1201.57 to read as follows:
Sec. 1201.57 Establishing jurisdiction in appeals not covered by
Sec. 1201.56; burden and degree of proof; scope of review.
(a) Applicability. This section applies to the following types of
appeals:
(1) An individual right of action (IRA) appeal under the
Whistleblower Protection Act, 5 U.S.C. 1221;
(2) A request for corrective action under the Veterans Employment
Opportunities Act (VEOA), 5 U.S.C. 3330a(d);
(3) A request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4324, in
which the appellant alleges discrimination or retaliation in violation
of 38 U.S.C. 4311; and
(4) An appeal under 5 CFR 353.304, in which an appellant alleges a
failure to restore, improper restoration of, or failure to return
following a leave of absence (denial of restoration appeal).
(b) Matters that must be supported by nonfrivolous allegations.
Except for proving exhaustion of a required statutory complaint process
and standing to appeal (paragraphs (c)(1) and (3) of this section), in
order to establish jurisdiction, an appellant who initiates an appeal
covered by this section must make nonfrivolous allegations (as defined
in Sec. 1201.4(s)) with regard to the substantive jurisdictional
elements applicable to the particular type of appeal he or she has
initiated.
(c) Matters that must be proven by a preponderance of the evidence.
An appellant who initiates an appeal covered by this section has the
burden of proof, by a preponderance of the evidence (as defined in
Sec. 1201.4(q)), on the following matters:
(1) When applicable, exhaustion of a statutory complaint process
that is preliminary to an appeal to the Board;
(2) Timeliness of an appeal under 5 CFR 1201.22;
(3) Standing to appeal, when disputed by the agency or questioned
by the Board. (An appellant has ``standing'' when he or she falls
within the class of persons who may file an appeal under the law
applicable to the appeal.); and
(4) The merits of an appeal, if the appeal is within the Board's
jurisdiction and was timely filed.
(d) Scope of the appeal. Appeals covered by this section are
limited in scope. With the exception of denial of
[[Page 4497]]
restoration appeals, the Board will not consider matters described at 5
U.S.C. 7701(c)(2) in an appeal covered by this section.
(e) Notice of jurisdictional, timeliness, and merits elements. The
administrative judge will provide notice to the parties of the specific
jurisdictional, timeliness, and merits elements that apply in a
particular appeal.
(f) Additional information. For additional information on IRA
appeals, the reader should consult 5 CFR part 1209. For additional
information on VEOA appeals, the reader should consult 5 CFR part 1208,
subparts A & C. For additional information on USERRA appeals, the
reader should consult 5 CFR part 1208, subparts A and B.
(g) For additional information on denial of restoration appeals,
the reader should consult 5 CFR part 353, subparts A and C.
William D. Spencer,
Clerk of the Board.
[FR Doc. 2015-01575 Filed 1-27-15; 8:45 am]
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