[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66813-66815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33353]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 /
Rules and Regulations
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Interim rule; request for comments.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is
amending its rules of practice and procedure to implement provisions of
the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). The purpose of these amendments is to provide guidance to the
parties to MSPB cases, and their representatives, on how to proceed in
cases raising claims that an agency employer or the Office of Personnel
Management (OPM) has not complied with a USERRA provision governing the
employment and reemployment rights to which a person is entitled after
service in the uniformed services.
DATES: Effective date December 22, 1997. Submit written comments on or
before February 20, 1998.
ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC
20419. Comments may be sent via e-mail to mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Uniformed Services Employment and
Reemployment Rights Act of 1994, Pub. L. 103-353 (108 Stat. 3149),
consists principally of a revision of chapter 43 of title 38 of the
United States Code, ``Employment and Reemployment Rights of Members of
the Uniformed Services.''
Under USERRA, Federal employees have expanded employment and
reemployment rights and benefits after service in the uniformed
services, including a new statutory right to appeal USERRA violations
to MSPB. Previously, a Federal employee had the right to appeal only an
alleged failure to restore to duty, or improper restoration to duty,
after military service, a right provided under OPM regulations (5 CFR
part 353).
USERRA provides new mechanisms for Federal employees to enforce
their employment or reemployment rights. In addition to the right to
appeal to MSPB, a Federal employee has the right to seek assistance
from the Secretary of Labor, to file a complaint with the Secretary of
Labor, and to request representation before MSPB by the Special Counsel
if the Secretary of Labor is unable to resolve the complaint. 38 U.S.C.
4321, 4322, and 4324.
USERRA authorizes OPM and the agencies involved in enforcement of
USERRA rights for Federal employees--the Department of Labor (DOL),
Office of Special Counsel (OSC), and the Board--to promulgate
regulations to carry out their functions under the Act. 38 U.S.C.
4331(b)(2)(A).
OPM has issued interim regulations, in the form of amendments to 5
CFR parts 353, 870, and 890, to implement USERRA (60 FR 45650,
September 1, 1995). As amended, part 353 includes separate MSPB appeal
right provisions for USERRA appeals at 5 CFR 353.211 and for appeals
involving restoration to duty after recovery from a compensable injury
at 5 CFR 353.304.
The Board is amending its regulation at 5 CFR 1201.3(a), describing
appealable actions, to conform to this change by OPM. Section
1201.3(a)(12) is amended to describe only restoration after recovery
from a compensable injury and to conform the language to that in OPM's
regulation at 5 CFR 353.304. USERRA actions are described in a new
section 1201.3(a)(22), which includes citations to both the applicable
enforcement provision of USERRA (38 U.S.C. 4324) and the OPM regulation
at 5 CFR 353.211.
In describing appealable USERRA actions in new section
1201.3(a)(22), the Board has relied on the following provisions of the
Act. The enforcement mechanisms for Federal employees under 38 U.S.C.
4324 apply to an agency employer's or OPM's failure or refusal to
comply with the provisions of chapter 43 of title 38. 38 U.S.C.
4322(a)(2)(B). The Act prohibits discrimination against an employee on
the basis of service in the uniformed services and prohibits acts of
reprisal for exercising a right or seeking to enforce a protection
under chapter 43 of title 38. 38 U.S.C. 4311. One kind of action
related to the rights and benefits afforded by USERRA is specifically
excluded from the enforcement mechanism--an ``action relating to
benefits to be provided under the Thrift Savings Plan under title 5.''
38 U.S.C. 4322(f).
USERRA does not prescribe specific procedures that the Board must
apply to appeals brought under chapter 43 of title 38. The Board has
determined that all USERRA cases should be processed under its
appellate jurisdiction procedures and that its original jurisdiction
procedures, contained in subpart D of part 1201, should not be applied
to those USERRA appeals filed by the Special Counsel. Appeals involving
restoration after military service that were authorized by OPM
regulation have traditonally fallen under the Board's appellate
jurisdiction. Congress was presumably aware of that practice, and
nothing in USERRA or its legislative history suggests an intent that
this practice be changed.
Subpart B of part 1201 is amended at section 1201.2(a) to exclude
USERRA appeals from the Special Counsel actions included under the
Board's ``original jurisdiction,'' at section 1201.3(a) to add USERRA
actions to the list of appealable actions as new paragraph (a)(22), and
at section 1201.31 to add a specific provision in new paragraph (e) for
representation of a person in a USERRA appeal by the Special Counsel.
Subpart D of part 1201 is amended at sections 1201.121 and 1201.131 to
exclude USERRA appeals specifically from the original jurisdiction
procedures applying to corrective actions brought by the Special
Counsel.
USERRA does not establish a time limit for appealing to the Board,
nor does it specifically prohibit the establishment of a time limit.
Petersen v. Department of the Interior, 71 M.S.P.R. 227 (1996); Duncan
v. U.S. Postal Service, 73 M.S.P.R. 86 (1997); Jasper v. U.S. Postal
Service, 73 M.S.P.R. 367 (1997); Wright v.
[[Page 66814]]
Department of Veterans Affairs, 73 M.S.P.R. 453 (1997). The Board is
authorized by 5 U.S.C. 1204(h) to promulgate regulations to carry out
its functions and has used this authority since its inception to
prescribe time limits for filing appeals with the Board. The Board is
also authorized by 38 U.S.C. 4331(b)(2)(A) to promulgate regulations to
carry out its functions under USERRA.
The Act provides a person three opportunities to file an appeal
with MSPB: (1) after the alleged violation, if the person does not file
a complaint with DOL; (2) after DOL notifies the person that it cannot
resolve the matter with the agency, if the person chooses not to have
the matter referred to the Special Counsel; and (3) after being advised
that the Special Counsel chooses not to represent the person in an
appeal to MSPB. 38 U.S.C. 4324(b). If a matter is referred to the
Special Counsel, the Special Counsel may file an appeal with MSPB. 38
U.S.C. 4324(a)(2).
Any filing time limit established by the Board by regulation must
allow sufficient time for a person to explore his or her options,
including possibly pursuing the matter with DOL and OSC, while not
allowing the matter to become stale. The Board has ruled that if a
person files a formal complaint with DOL, the DOL procedure must be
exhausted before an appeal may be filed with MSPB. Petersen, 71
M.S.P.R. at 233; Jasper, 73 M.S.P.R. at 370.
The Board is amending its regulation at 5 CFR 1201.22(b),
prescribing time limits for filing, to provide that a USERRA appeal may
be filed directly with MSPB within 180 days of the alleged violation.
If a person seeks assistance from DOL under 38 U.S.C. 4321 but does not
file a formal complaint under 38 U.S.C. 4322(a), he or she may
subsequently file an appeal with MSPB at any time during the 180-day
period. If a person files a formal complaint with DOL under 38 U.S.C.
4322(a) and receives notification from DOL that it has been unable to
resolve the matter, he or she may subsequently file an appeal with MSPB
within 30 days after receipt of the notification from DOL or within 180
days of the alleged violation, whichever is later. If DOL refers a
person's complaint to OSC under 38 U.S.C. 4322(a) and the person
receives notification from the Special Counsel that OSC will not
represent the person before MSPB, he or she may subsequently file an
appeal with MSPB within 30 days after receipt of the notification from
the Special Counsel or within 180 days of the alleged violation,
whichever is later.
This guarantees that a person will have at least six months from
the time of an alleged violation of USERRA to file an appeal with MSPB.
If a person files a formal complaint with DOL or seeks OSC
representation, the time limit for filing with MSPB may be greater than
six months.
Where the Special Counsel chooses to represent a person in a USERRA
appeal before MSPB, the Board has not set a time limit for filing. The
intent is to allow the Special Counsel time to secure voluntary
compliance before filing an appeal with MSPB. Because DOL will have
already tried, and failed, to secure compliance by the agency, the
Board expects that the Special Counsel will file an appeal with MSPB
expeditiously where a matter cannot be resolved with the agency.
In addition to the amendments with respect to USERRA discussed
above, the Board is making several technical amendments to its
regulation at 5 CFR 1201.3(a).
The Board is publishing this rule as an interim rule pursuant to 5
U.S.C. 1204(h) and 38 U.S.C. 4331.
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 1201.2 is amended by revising paragraph (a) to read as
follows:
Sec. 1201.2 Original jurisdiction.
* * * * *
(a) Actions brought by the Special Counsel under 5 U.S.C. 1214,
1215, and 1216;
* * * * *
3. Section 1201.3 is amended by revising paragraph (a)(12), by
removing ``and'' at the end of paragraph (a)(19), by removing the
period at the end of paragraph (a)(20) and adding a semi-colon in its
place, by revising the citation in the parenthetical at the end of
paragraph (a)(21) to read ``(22 U.S.C. 4011)'', by deleting the period
at the end of paragraph (a)(21) and substituting ``; and'', and by
adding a new paragraph (a)(22) to read as follows:
Sec. 1201.3 Appelate jurisdiction
(a)* * *
(12) Failure to restore, improper restoration of, or failure to
return following a leave of absence an employee or former employee of
an agency in the executive branch (including the U.S. Postal Service
and the Postal Rate Commission) following partial or full recovery from
a compensable injury (5 CFR 353.304);
* * * * *
(22) Non-compliance by a Federal executive agency employer or the
Office of Personnel Management with the provisions of chapter 43 of
title 38 of the United States Code relating to the employment or
reemployment rights or benefits to which a person is entitled after
service in the uniformed services (38 U.S.C. 4324, 5 CFR 353.211),
excluding any action related to benefits to be provided under the
Thrift Savings Plan under title 5 of the United States Code (38 U.S.C.
4322(f)).
* * * * *
4. Section 1201.22 is amended by redesignating the text of
paragraph (b) as paragraph (b)(1), by revising the first sentence of
paragraph (b)(1) and by adding a new paragraph (b)(2) to read as
follows:
Sec. 1201.22 Filing an appeal and responses to appeals.
* * * * *
(b) * * * (1) Except as provided in paragraph (b)(2) of this
section, an appeal must be filed no later than 30 days after the
effective date, if any, of the action being appealed, or 30 days after
the date of receipt of the agency's decision, whichever is later. * * *
(2) (i) Where a person alleges non-compliance with the provisions
of chapter 43 of title 38 of the United States Code relating to the
employment or reemployment rights or benefits to which a person is
entitled after service in the uniformed services (see paragraph (a)(22)
of Sec. 1201.3 of this part), he or she may file an appeal directly
with the Board within 180 days after the alleged act or incidence of
non-compliance.
(ii) Where a person seeks assistance from the Secretary of Labor
under 38 U.S.C. 4321 but does not file a complaint under 38 U.S.C.
4322(a), he or she may file an appeal directly with the Board within
180 days after the alleged act or incidence of non-compliance.
(iii) Where a person files a complaint with the Secretary of Labor
under 38 U.S.C. 4322(a) and receives notification under 38 U.S.C.
4322(e) that the Secretary has been unable to resolve the matter, he or
she may subsequently file an appeal with the Board within 30 days after
the date of receipt of the Secretary's notification or within 180 days
after the alleged act or incidence of non-compliance, whichever is
later. A
[[Page 66815]]
copy of the Secretary's notification must be submitted with the appeal.
(iv) Where the Secretary of Labor refers a person's complaint to
the Special Counsel under 38 U.S.C. 4322(a) and the person receives
notification that the Special Counsel declines to represent the person
in an appeal to the Board, he or she may subsequently file an appeal
with the Board within 30 days after the date of receipt of the Special
Counsel's notification or within 180 days after the alleged act or
incidence of non-compliance, whichever is later. A copy of the Special
Counsel's notification must be submitted with the appeal.
(v) Where the Secretary of Labor refers a person's complaint to the
Special Counsel under 38 U.S.C. 4322(a) and the Special Counsel agrees
to represent the person in an appeal to the Board, the Special Counsel
may file an appeal with the Board at any time thereafter.
* * * * *
5. Section 1201.31 is amended by adding a new paragraph (d) to read
as follows:
Sec. 1201.31 Representatives.
* * * * *
(e) The Special Counsel may represent a person in an appeal
alleging non-compliance with the provisions of chapter 43 of title 38
of the United States Code relating to the employment or reemployment
rights or benefits to which a person is entitled after service in the
uniformed services (see paragraph (a)(22) of Sec. 1201.3 of this part
and 38 U.S.C. 4324). In such an appeal, a copy of any written request
by the person to the Secretary of Labor that the matter be referred to
the Special Counsel for litigation before the Board will be accepted as
the written designation of representative required by paragraph (a) of
this section.
6. Section 1201.121 is amended by adding a new paragraph (c) to
read as follows:
Sec. 1201.121 Scope of jurisdiction; application of subparts B, F, and
H.
* * * * *
(c) The provisions of this subpart do not apply to appeals alleging
non-compliance with the provisions of chapter 43 of title 38 of the
United States Code relating to the employment or reemployment rights or
benefits to which a person is entitled after service in the uniformed
services, in which the Special Counsel appears as the designated
representative of the appellant. Such appeals are governed by subpart B
of this part.
Sec. 1201.131 [Amended]
7. Section 1201.131 is amended at paragraph (a) by adding after
``Special Counsel'' the phrase, ``under this subpart''.
Dated: December 17, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-33353 Filed 12-19-97; 8:45 am]
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