[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Rules and Regulations]
[Pages 48935-48936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24750]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 181 / Thursday, September 18, 1997 /
Rules and Regulations
[[Page 48935]]
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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 (the Board) is amending its
rules of practice and procedure to prescribe how a Federal employee
witness in a Board proceeding may obtain a Board order that the
employing agency grant him or her official time for participation in
the proceeding. The Board is also amending its rules for enforcement
proceedings to clarify that those rules apply to proceedings for
enforcement of orders issued in the course of the Board's adjudicatory
proceedings, such as an order that an agency provide official time to a
Federal employee or a protective order to protect a witness from
harassment, as well as to final Board decisions.
EFFECTIVE DATE: September 18, 1997.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Board's current rules of practice and
procedure, at 5 CFR 1201.33, provide that a Federal employee who
appears as a witness in a Board proceeding, or furnishes a sworn
statement in connection with such a proceeding, ``will be in official
duty status (i.e., entitled to pay and benefits including travel and
per diem, where appropriate).'' The current rules, however, provide no
explicit guidance as to how a Federal employee is to proceed if his or
her employing agency refuses to provide the official time required by
section 1201.33.
The Board's case law has affirmed its authority to provide official
time to non-parties, but the Board has not addressed the procedures for
non-parties to claim official time. In re Maisto, 28 M.S.P.R. 436
(1985); In re Douglas, 32 M.S.P.R. 389 (1987); and Sapp v. U.S. Postal
Service, 73 M.S.P.R. 189 (1997).
The Board has the authority to order any Federal employee or agency
to comply with any order or decision issued by the Board and to enforce
compliance with any such order. 5 U.S.C. Sec. 1204(a)(2). The Board
also has the authority to prescribe such regulations as may be
necessary for the performance of its functions. 5 U.S.C. Sec. 1204(h).
The Board, therefore, is amending section 1201.33 to prescribe a
specific procedure for a nonparty Federal employee who is participating
as a witness in a Board proceeding to obtain from the judge an order
that the employing agency comply with the official time requirements of
that section. The procedure requires that the nonparty Federal employee
submit the request to the judge in writing. The judge is then required
to act on the request promptly and, where warranted, to order the
employing agency to comply with the Board's official time regulation.
Section 1201.33 is amended further to state specifically that a
judge's order that an agency provide official time as required by that
section may be enforced as provided under subpart F of part 1201, i.e.,
in the same manner as other Board decisions and orders.
The Board also is amending its enforcement regulations at section
1201.182 to clarify that the regulations in subpart F apply to
enforcement proceedings for all Board orders issued in connection with
its adjudicatory proceedings, as well as to enforcement proceedings for
final Board decisions. Both paragraph (a), covering decisions and
orders issued under the Board's appellate jurisdiction, and paragraph
(b), covering decisions and orders issued under the Board's original
jurisdiction, are amended to provide that they apply to both Board
orders and final decisions.
The Board is amending section 1201.182 at paragraph (c) to provide
an exception to the requirement that a nonparty file a motion to
intervene at the same time as a petition for enforcement where the
nonparty is a Federal employee witness seeking enforcement of a Board
order for official time or an individual seeking enforcement of a
protective order.
The Board is publishing this rule as a final rule pursuant to 5
U.S.C. 1204(h).
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Civil rights, Government
employees.
Accordingly, the Board amends 5 CFR part 1201 as follows:
PART 1201--[AMENDED]
1. The authority citation for part 1201 continues to read as
follows:
Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless
otherwise noted.
2. Section 1201.33 is amended by redesignating the existing text as
paragraph (a) and by adding paragraphs (b) and (c) to read as follows:
Sec. 1201.33 Federal witnesses.
* * * * *
(b) A Federal employee who is denied the official time required by
paragraph (a) of this section may file a written request that the judge
order the employing agency to provide such official time. The judge
will act on such a request promptly and, where warranted, will order
the agency to comply with the requirements of paragraph (a) of this
section.
(c) An order obtained under paragraph (b) of this section may be
enforced as provided under subpart F of this part.
Sec. 1201.182 [Amended]
3. Section 1201.182 is amended at paragraph (a) by adding ``or
order'' after ``decision'' in the first sentence.
4. Section 1201.182 is amended at paragraph (b) by removing ``Board
order'' in the first sentence and by adding in its place ``final Board
decision or order.''
5. Section 1201.182 is amended by revising paragraph (c) to read as
follows:
Sec. 1201.182 Petition for enforcement.
* * * * *
(c) Petition by an employee other than a party. (1) Under 5 U.S.C.
1204(e)(2)(B), any employee who is aggrieved by the failure of any
other employee to comply with an order of the Board may petition the
Board for enforcement. Except for a petition filed under paragraph
(c)(2) or (c)(3) of this section, the Board will
[[Page 48936]]
entertain a petition for enforcement from an aggrieved employee who is
not a party only if the employee seeks and is granted party status as a
permissive intervenor under Sec. 1201.34(c) of this part. The employee
must file a motion to intervene at the time of filing the petition for
enforcement. The petition for enforcement must describe specifically
why the petitioner believes there is noncompliance and in what way the
petitioner is aggrieved by the noncompliance. The motion to intervene
will be considered in accordance with Sec. 1201.34(c) of this part.
(2) Under Sec. 1201.33(c) of this part, a nonparty witness who has
obtained an order from a judge that his or her employing agency provide
the witness with official time may petition the Board for enforcement
of the order.
(3) Under Sec. 1201.55(d) of this part, a nonparty witness or other
individual who has obtained a protective order from a judge during the
course of a Board proceeding for protection from harassment may
petition the Board for enforcement of the order.
(4) A petition for enforcement under paragraph (c)(1), (c)(2), or
(c)(3) of this section must be filed promptly with the regional or
field office that issued the order or, if the order was issued by the
Board, with the Clerk of the Board. The petitioner must serve a copy of
the petition on each party or the party's representative. If the
petition is filed under paragraph (c)(1) of this section, the motion to
intervene must be filed and served with the petition.
Dated: September 12, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-24750 Filed 9-17-97; 8:45 am]
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