Regulatory Review Initiative
On June 7, 2012, the Merit Systems Protection Board (MSPB or the Board) published a proposed rule that included a proposed amendment to 5 CFR 1201.56. 77 FR 33663. Now, as then, 5 CFR 1201.56 provides without qualification that the Board's jurisdiction must be proved by preponderant evidence. In the 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.
The MSPB received numerous thoughtful comments concerning the proposed amendments to this regulation and, because many of the comments addressed matters that went well beyond the scope of the original proposed rule, the Board decided to withdraw the proposed rule and reconsider the existing regulation in light of the comments and internal discussions spurred by the comments.
Shortly after the withdrawal of the proposed amendments to 5 CFR 1201.56, the Board directed an internal MSPB working group (regulations working group) to thoroughly review 5 CFR 1201.56 and any related issues concerning the MSPB's jurisdiction. The regulations working group developed several options for the Board to consider, and the Board has determined that it would be appropriate to seek public comment on the various options prior to taking action.
The exact text, summaries, and analyses of the options developed by the MSPB regulations working group are available below.
The Board seeks public input before taking action to amend 5 CFR 1201.56 or otherwise alter its regulations governing how a party can establish jurisdiction over an appeal. Comments are invited concerning the 4 options developed by the regulations working group and/or any alternative approaches to improving the MSPB's regulations governing the establishment of MSPB jurisdiction over an appeal. Please see the Federal Register notice below for information about how to submit comments or if you have any questions.