Timothy Korb
Derwood, Maryland
I am writing to urge the MSPB to withdraw the proposed regulations announced on April 3, 2014 (79 Fed. Reg. 18658) and to instead propose what had been listed as Option C in the solicitation of public comments in the Federal Register Notice the MSPB issued on November 8, 2013, 78 Fed. Reg. 67076. The essence of Option C was simple: All Board appeals include "what" and "who" jurisdictional elements, meaning that the agency action or decision being challenged must be one that is appealable to the Board under a law, rule, or regulation, and that the appellant is a person entitled to appeal that action or decision under the applicable law, rule, or regulation. Under Option C, the "what" and "who" elements must be proved by preponderant evidence. (Associated with Option C was a Jurisdictional Matrix that identified the "what" and "who" elements for each and every type of appeal listed in 5 C.F.R. § 1201.3.) Except for 8 appeal types, which include jurisdictional elements that are also merits issues and require only a simple allegation for jurisdictional purposes, the "what" and "who" elements would be the only jurisdictional requirements.
Option C was premised on several basic principles: (1) Jurisdiction refers to a court or administrative tribunal's authority to adjudicate a particular category of cases; (2) in Board appeals, the "what" and "who" elements are what generally define the categories of cases that the MSPB is authorized to adjudicate; (3) the "what" and "who" elements are never merits issues, and must always be proved by preponderant evidence because they are conditions precedent to reaching the merits of a case; and (4) no merits issue should be regarded as a jurisdictional requirement unless Congress or OPM (where an OPM regulation is the source of Board jurisdiction) has clearly indicated that it should be treated as such. (See Rationale for Option C)
Despite its simplicity, Option C would have superseded a significant amount of MSPB and Federal Circuit case law, which had evolved in an ad hoc manner and which was not based on the sort of fundamental principles on which Option C is based. I note in this regard that much of the case law supporting Option C was articulated in Supreme Court decisions issued after the MSPB and Federal Circuit case law that established the jurisdictional elements in question. In its April 3 proposed rule, the MSPB opted to go with what was described as Option B in the November 2013 solicitation of public comments. With a minor exception involving restoration appeals, the proposed regulations merely codify existing MSPB and Federal Circuit precedent, including precedent that would have been superseded by Option C.
The following is a thumbnail sketch of the problems I see with the proposed jurisdictional regulations.
The proposed
regulations do not recognize that all MSPB appeals include "what" and "who"
jurisdictional elements; nor do they specify that these elements always require
proof by preponderant evidence.
The Board very recently acknowledged and quoted the Supreme Court's decision in Elgin v. Department of the Treasury, 132 S.Ct. 2126, 2130 (2012), which indicated that all MSPB appeals include "what" and "who" jurisdictional elements. Jonson v. Federal Deposit Insurance Corp., 2014 MSPB 22, ¶ 7 ("the CSRA makes [Board] jurisdiction over an appeal dependent only on the nature of the employee and the employment action at issue"). The proposed regulations do not, however, state this fundamental principle. Nor do they provide that "what" and "who" jurisdictional elements always require proof by preponderant evidence because they are conditions precedent to reaching the merits. (Link to Option C Discussion) (discussion in June 7, 2012 Federal Register notice). I note that the Jurisdictional Matrix associated with Option C, which a number of commenters found particularly useful, is not part of the proposed regulations. Indeed, that Matrix could not be associated with the proposed regulations because it is not consistent with the case law endorsed in the current Federal Register notice.
The jurisdictional tests derived from MSPB and Federal Circuit case law that are endorsed in the proposed regulations do not in all instances recognize required "who" elements. For example, the Yunus statement of what is required to establish jurisdiction over an IRA appeal does not include a "who" element. As reflected in the Jurisdictional Matrix, however, the statute includes a "who" element, i.e., the appellant must be "an employee, former employee, or applicant for employment in a covered agency." See 5 U.S.C. § 2302(a)(2). The proposed regulation (1201.57(b)(3)) covers this obliquely by saying that "standing" must be established by preponderant evidence "when disputed by the agency or questioned by the Board." But the proposed regulation does not identify the required "who" element, and I think using the term "standing" is inadvisable, as that is a discretionary jurisprudential principle in Article III courts. In Board proceedings, the "who" element is properly viewed as a matter of subject matter jurisdiction, and it is not discretionary. The "who" element must always be established in order for the Board to exercise jurisdiction.
The MSPB has not provided any justification for requiring "nonfrivolous" allegations of jurisdictional elements that are also merits issues in IRA, VEOA, USERRA, and other types of appeals.
As set forth in the explanation for Option C (Link to Option C Discussion), and as set forth in the Jurisdictional Matrix, there are only 8 types of appeals within the Board's appellate jurisdiction in which the statute or regulation that authorizes the Board to adjudicate appeals can reasonably be construed to include a jurisdictional issue that is also a merits issue. None of these statutes and regulations specify that the element in question requires that a nonfrivolous allegation be made to establish jurisdiction. To the contrary, they provide that an individual who "alleges," "claims," "believes," or "considers" that an agency has acted in a particular wrongful way is entitled to appeal to the MSPB. (IRA appeals require special consideration, as discussed in Option C .) As set forth in Chevron, when the statute or regulation is clear and unambiguous, "that is the end of the matter," i.e., the statute or regulation must be applied as written. That is the case here. The statutes and regulations in question provide for Board jurisdiction when an appellant "alleges," "claims," "believes," or "considers" that an agency has acted in a particular wrongful way. There is simply no legal justification, and the MSPB has posited none, for requiring that appellants must make nonfrivolous allegations that a federal agency has acted wrongfully in order to establish jurisdiction. The MSPB's proposed regulations nevertheless require nonfrivolous of matters that are both jurisdictional and merits in IRA appeals, VEOA appeals, and USERRA appeals. Such allegations are also imposed in other appeals identified in what was proposed as section 1201.5(c) of Option C. I believe the Board's requirement of nonfrivolous allegations to establish jurisdiction in these appeals would be found "not in accordance with law" under 5 U.S.C. § 706(2)(A).
The proposed regulations improperly treat purely merits issues as jurisdictional issues.
As developed in the discussion for Option C, merits issues should not be treated as jurisdictional requirements unless the statute or regulation that authorizes the Board to adjudicate a particular type of case clearly requires such treatment, and there are only 8 types of appeals in which the applicable statute or regulation can reasonably be construed as treating a merits issues as a jurisdictional requirement.
Under the proposed regulations, the MSPB would continue to treat some merits issues as jurisdictional requirements, even though the applicable statute or regulation does not warrant such treatment. For example, the MSPB purports to "fix" the problem created by the Federal Circuit's decision in Bledsoe v. Merit Systems Protection Board, 659 F.3d 1097 (Fed. Cir. 2011), by promulgating a rule that jurisdiction may be established in a partial recovery restoration appeal under 5 C.F.R. § 353.304 by making nonfrivolous allegations, instead of by proof by preponderant evidence. The real problem in partial recovery restoration appeals is not the burden of proof for establishing jurisdiction; it is that the Board has wrongfully classified a purely merits issue — whether the agency "is acting arbitrarily and capriciously in denying restoration" — as a jurisdictional element. For the reasons described in Member Rose's dissent in Latham v. U.S. Postal Service, 117 M.S.P.R. 400 (2012) (¶¶ 26-30 of dissent), whether the agency acted arbitrarily and capriciously is purely a merits issue and cannot be reasonably construed as a jurisdictional requirement.
Option C dealt with this situation by making a comprehensive rule that the "what" and "who" jurisdictional requirements are the only jurisdictional requirements in all Board appeals except for 8 specific appeal types that require an allegation — but only an allegation, not a nonfrivolous one — of some matter that is also a merits issue. The regulations now being proposed by the MSPB leave in place case law such as Latham where the Board and/or Federal Circuit has improperly classified a merits issue as a jurisdictional requirement.
The proposed regulations improperly treat the exhaustion requirement in IRA and VEOA appeals as a jurisdictional requirement.
As developed in the discussion for Option C, the Supreme Court has held that exhaustion requirements that are analogous to those in IRA and VEOA appeals are claim processing rules that are not jurisdictional requirements. The proposed regulations continue to treat the exhaustion requirement in IRA and VEOA appeals as jurisdictional requirements. The MSPB's notice of proposed rulemaking provides no explanation why the Supreme Court decisions cited in the Option C discussion do not control. This is particularly surprising in light of the fact that the MSPB is relying on Board and Federal Circuit decisions issued prior to most of the cited Supreme Court decisions.
The Board may not affirm any agency action or decision, including IRA, VEOA, or USERRA appeals, where the agency has violated the appellant's Constitutional rights.
Citing the Board's decision in Marren v. Department of Justice, 51 M.S.P.R. 632 (1991), the Federal Register notice asserts that the Board lacks the authority in IRA, VEOA, and USERRA appeals to adjudicate the affirmative defenses of 5 U.S.C. § 7701(c)(2), i.e., that the agency action or decision resulted from harmful error in the application of the agency's procedures, that the decision was based on a prohibited personnel practice, or that the decision was not in accordance with law. Although I do not argue that section 7701 applies to these three types of appeals, I do contend that one variant of an agency action or decision not being in accordance with law applies to every type of appeal over which the MSPB has jurisdiction, including IRA, VEOA, and USERRA appeals — when the agency action or decision entails a violation of the appellant's rights under the United States Constitution. Because the Constitution is "the supreme law of the land" (Article VI), it must apply in every personnel action or matter that the MSPB has been authorized to adjudicate. This is true regardless of the text of any particular statute such as 5 U.S.C. § 7701 or 5 U.S.C. § 2302. Accordingly, the Board may not sustain an agency action or decision if the agency action or decision was effected by violating the individual's Constitutional rights, such as the right to free speech under the First Amendment or the right to due process under the Fifth Amendment.
The MSPB has not given a reasoned explanation for why it has chosen to propose its jurisdictional regulations and for having rejected the alternatives.
In the adjudication of cases, the Board has from its inception recognized a basic principle: a judge must identify and resolve all material issues of fact and law, including the reasoning justifying the resolution of these issues. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). This common sense principle should be applied to every important organizational decision, i.e., one should list and evaluate the reasons for and against each alternative, and explain why one option was chosen rather than another. In proposing to promulgate what had been one of four options presented to the public, the Board has simply not done this. The proposed jurisdictional regulations merely codify and endorse existing Board and Federal Circuit precedent, without explaining why Option C — and the legal principles on which it was based — was rejected. Under these circumstances, I do not believe that the proposed regulations, if enacted, would or should be entitled to deference, whether under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), Auer v. Robbins, 519 U.S. 452 (1997), or Skidmore v. Swift & Co., 323 U.S. 134 (1944).