[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 59991-59992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29311]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 /
Rules and Regulations
[[Page 59991]]
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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 is amending its rules of
practice and procedure to change its time limits for filing appeals and
petitions for review of initial decisions issued by MSPB judges. The
amendments to the time limits for filing appeals are intended to ensure
that an appellant has a full 30 days to file after the event from which
the time period begins to run. The amendment to the time limit for
filing a petition for review is intended to ensure that a petitioner
has a full 30 days to file after the date of receipt of the initial
decision issued by the judge. The purpose of these amendments is to
provide guidance to the parties to MSPB cases and their representatives
regarding filing requirements. The Board is simultaneously amending its
rules at 5 CFR part 1209 with respect to the time limits for filing
whistleblower appeals.
EFFECTIVE DATE: November 6, 1997.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: 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. Prior to this amendment, the regulation at 5
CFR 1201.22(b), prescribing time limits for filing an appeal, required
that an appeal of an agency action be filed no later than 30 days after
the effective date of the action or, where the appeal is from a final
or reconsideration decision that does not set an effective date, no
later than 35 days after the date of issuance of the agency's decision.
In establishing the 35-day time limit where the appeal is from a final
or reconsideration decision that does not set an effective date, the
Board, in effect, was providing the same 30-day time period for filing
as in an appeal of an action with an effective date by allowing 5
additional days after the date of issuance of the decision for it to be
mailed and received.
Where the 35-day time limit applies and there is a delay by the
agency in mailing the decision after it is issued, and/or a delay by
the U.S. Postal Service that results in more than 5 days elapsing
between issuance of the decision and receipt by the appellant, an
appellant could have less than 30 days to file an appeal with MSPB.
Should an appellant not receive the agency's decision until after the
35-day time period for filing has expired, any appeal may be dismissed
as untimely.
In order to ensure that each appellant, regardless of the nature of
the action or decision being appealed, has a full 30 days to file after
the event from which the time period begins to run, the Board is
amending its regulation at 5 CFR 1201.22(b) to require that an appeal
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.
The Board is making corresponding amendments to 5 CFR 1201.27(b),
regarding the time limit for filing individual appeals after a judge
has denied a request for hearing as a class appeal, and 5 CFR
1201.154(a), regarding the time limit for filing an appeal in which
discrimination is alleged (a mixed case appeal).
Prior to this amendment, the regulation at 5 CFR 1201.114(d),
prescribing the time limit for filing a petition for review of a
judge's initial decision, required that the petition for review be
filed with the Clerk of the Board within 35 days after the initial
decision is issued. This regulation was based on the statutory
requirement at 5 U.S.C. 7701(e)(1)(A) that a petition for review be
filed no later than 30 days after the party's receipt of the initial
decision. Again, the Board was allowing in its regulation an additional
5 days from the date of issuance of the initial decision for mailing
and receipt by the parties.
To ensure that every party has a full 30 days from the date of
receipt of an initial decision to file a petition for review of that
decision, the Board is amending its regulation at 5 CFR 1201.114(d) to
require that a petition for review be filed within 35 days after the
initial decision is issued or, if the petitioner shows that the initial
decision was received more than 5 days after the date of issuance,
within 30 days after the date the petitioner received the initial
decision. The Board is making conforming amendments to 5 CFR
1201.113(a) and (d) by removing the references to a 35-day time limit
for filing.
The Board is not amending 5 CFR 1201.113 in the material that
precedes paragraph (a), which states that the initial decision of the
judge will become final 35 days after issuance. Where no petition for
review of an initial decision is filed, and the Board does not reopen
on its own motion, there must be a date certain when the case is closed
and the initial decision becomes the final decision of the Board. Such
a finality date is also needed, for example, to determine when the time
starts running for the filing of a petition for review of a final Board
decision in a mixed case by the Equal Employment Opportunity Commission
under 5 U.S.C. 7702, a petition for judicial review of a final Board
decision under 5 U.S.C. 7703, or a motion for attorney fees under 5 CFR
1201.203(d).
As a result of these amendments to the petition for review
provisions, initial decisions issued by MSPB judges will continue to
show a finality date, which will be the date 35 days after the date of
issuance of the initial decision. That date, however, will no longer be
the last day on which a petition for review can be filed if the
petitioner can show that the initial decision was received more than 5
days after the date it was issued. In that event, the time limit of 30
days after the date of receipt will apply.
The Board is making a corresponding amendment to the regulation at
5 CFR 1201.154(d), regarding the time limit for filing a petition for
review of a final decision on a grievance in which discrimination is
alleged.
The Board is publishing this rule as a final rule pursuant to 5
U.S.C. 1204(h).
[[Page 59992]]
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.
Sec. 1201.22 [Amended]
2. Section 1201.22 is amended by revising paragraph (b) to read as
follows:
* * * * *
(b) Time of filing. 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. The time for filing is computed in accordance with Sec. 1201.23
of this part. A response to an appeal must be filed within 20 days of
the date of the Board's acknowledgment order.
* * * * *
Sec. 1201.27 [Amended]
3. Section 1201.27 is amended at paragraph (b) by revising the
second sentence to read as follows:
* * * * *
(b) * * * If the judge denies the request, the appellants affected
by the decision may file individual appeals within 30 days after the
date of receipt of the decision denying the request to be heard as a
class appeal. * * *
* * * * *
Sec. 1201.113 [Amended]
4. Section 1201.113 is amended by revising paragraphs (a) and (d)
to read as follows:
* * * * *
(a) Exceptions. The initial decision will not become final if any
party files a petition for review within the time limit for filing
specified in Sec. 1201.114 of this part, or if the Board reopens the
case on its own motion.
* * * * *
(d) Extensions. The Board may extend the time limit for filing a
petition for good cause shown as specified in Sec. 1201.114 of this
part.
* * * * *
Sec. 1201.114 [Amended]
5. Section 1201.114 is amended at paragraph (d) by revising the
first sentence to read as follows:
* * * * *
(d) * * * Any petition for review must be filed within 35 days
after the date of issuance of the initial decision or, if the
petitioner shows that the initial decision was received more than 5
days after the date of issuance, within 30 days after the date the
petitioner received the initial decision. * * *
* * * * *
Sec. 1201.154 [Amended]
6. Section 1201.154 is amended by revising paragraph (a) and the
first sentence of paragraph (d) to read as follows:
* * * * *
(a) Where the appellant has been subject to an action appealable to
the Board, he or she may either file a timely complaint of
discrimination with the agency or file an appeal with the Board 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 on the appealable action, whichever is later.
* * * * *
(d) If the appellant has filed a grievance with the agency under
its negotiated grievance procedure in accordance with 5 U.S.C. 7121, he
or she may ask the Board to review the final decision under 5 U.S.C.
7702 within 35 days after the date of issuance of the decision or, if
the appellant shows that the decision was received more than 5 days
after the date of issuance, within 30 days after the date the appellant
received the decision. * * *
* * * * *
Dated: October 31, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-29311 Filed 11-5-97; 8:45 am]
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