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MSPB Issues Final Rule Clarifying How Jurisdiction Is Established over Board Appeals
Practical Law Legal Update 6-598-4025 (Approx. 5 pages)
MSPB Issues Final Rule Clarifying How Jurisdiction Is Established over Board Appeals
by Practical Law Labor & Employment
| Published on 03 Feb 2015 • USA (National/Federal) |
The Merit Systems Protection Board (MSPB) issued a Final Rule amending its regulations regarding how jurisdiction is established in appeals before the MSPB under 5 C.F.R. part 1201.
The Merit Systems Protection Board (MSPB) issued a Final Rule amending its regulations regarding how jurisdiction is established in appeals before the MSPB under 5 C.F.R. part 1201. The final rule was issued following a lengthy rulemaking process in which the MSPB invited public comment on four proposed options for amending MSPB's jurisdictional regulations to make them consistent with long-standing MSPB procedures and case law. The MSPB chose to mainly adopt what was known as "Option B" because the Board found this proposed rule to be consistent with established precedent. According to the Board, adopting this option was a sensible approach because it would not require making substantive changes that could be disruptive to the overall MSPB process.
The final rule adopted by the Board:
- Defines degrees of evidence required in proving appeals (for example, substantial evidence, preponderance of evidence).
- Defines the term "harmful error" and indicates that the burden of proof is on the appellant to establish harmful error.
- Defines the term “nonfrivolous allegation” which is frequently used in MSPB appeals.
- Describes the burden of proof and affirmative defenses under various statutes that permit an appeal to the MSPB.
The Final Rule clarifies the burden and degree of proof standards for:
- MSPB appeals brought under 5 U.S.C. § 7701, which is part of the Civil Service Reform Act of 1978 (CSRA).
- Individual right of action appeals under the Whistleblower Protection Act (WPA).
- Appeals under the Veterans Employment Opportunities Act (VEOA).
- Appeals alleging retaliation and discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
- Appeals involving restoration to duty from uniformed service.
The Final Rule takes effect on March 30, 2015. It will apply to any appeal filed on or after that date.