97-29312. Practices and Procedures for Appeals and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing

[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 59992-59993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29312]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1209


Practices and Procedures for Appeals and Stay Requests of 
Personnel Actions Allegedly Based on Whistleblowing

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 for whistleblower appeals to change the time 
limits for filing. The amendment to the time limit for filing an 
individual right of action (IRA) appeal is intended to ensure that an 
appellant has the full 60 days required by law to file after being 
provided notification by the Special Counsel that an investigation has 
been terminated. The amendment to the time limit for filing a 
whistleblower appeal after a judge's ruling on a stay request is 
intended to ensure that an appellant has a full 30 days to file after 
receipt of the ruling. 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 1201 with respect to the time limits for filing 
other appeals and petitions for review.

EFFECTIVE DATE: November 6, 1997.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
[phone].

SUPPLEMENTARY INFORMATION: The provisions of the Whistleblower 
Protection Act of 1989 (Pub. L. 101-12) governing a whistleblower's 
filing of an individual right of action (IRA) appeal with the Board 
require that such an appeal be filed no more than 60 days after 
notification by the Special Counsel that an investigation into the 
whistleblower's allegations has been terminated. 5 U.S.C. 
1214(a)(3)(A)(ii) and 1221(a). The statutory language does not specify 
whether the 60-day period begins to run from the date of the Special 
Counsel's notice or the date of the whistleblower's receipt of that 
notice.
    Prior to this amendment, the Board's implementing regulation at 5 
CFR 1209.5(a) required that an IRA appeal be filed no later than 65 
days after the date of issuance of the Office of Special Counsel's 
written notification that it was terminating its investigation of the 
appellant's allegations. This established a clear date on which the 
time for filing began to run and allowed an additional 5 days for the 
notice to be mailed and received by an appellant before the 60-day 
statutory period began.
    Delay by the Office of Special Counsel in mailing the notice and/or 
a delay by the U.S. Postal Service could result in an appellant having 
less than 60 days to file an appeal with MSPB. If an appellant did not 
receive the Special Counsel's notice until after the 65-day time period 
for filing expired, an IRA appeal might be dismissed as untimely.
    To ensure that each IRA appellant has a full 60 days for filing 
with the Board after receipt of a notice from the Special Counsel, the 
Board is amending its regulation at 5 CFR 1209.5(a)(1) to require that 
an IRA appeal be filed no later than 65 days after the date of issuance 
of the Office of Special Counsel's written notification or, if the

[[Page 59993]]

appellant shows that the Special Counsel's notification was received 
more than 5 days after the date of issuance, within 60 days after the 
date the appellant received the Special Counsel's notification.
    This regulatory action does not affect the provisions of law and 
regulation permitting an appellant to file an IRA appeal with the Board 
anytime after 120 days have passed since filing with the Special 
Counsel if he or she has not received notification that the Special 
Counsel will seek corrective action from the Board. 5 U.S.C. 
1214(a)(3)(B) and 5 CFR 1209.5(a)(2).
    A whistleblower affected by an action that is directly appealable 
to the Board may choose to seek corrective action from the Special 
Counsel first or may file an otherwise appealable action (OAA) appeal 
directly with the Board. 5 U.S.C. 1221(b) and 5 CFR 1209.5(b). An 
appellant who chooses to go to the Special Counsel first is subject to 
the same time limit for filing as an IRA appellant under the amended 5 
CFR 1209.5(a)(1). An appellant who appeals directly to the Board is 
subject to the same time limit that applies to other appeals under the 
Board's regulation at 5 CFR 1201.22(b), which is being amended 
simultaneously with this amendment. Under the amended 5 CFR 1201.22(b), 
an appellant must file 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 also amending its regulation at 5 CFR 1209.5(c) to 
ensure that an appellant who has filed a stay request before filing a 
whistleblower appeal (IRA or OAA) has a full 30 days to file after the 
date the appellant receives the judge's ruling on the stay request. 
This amendment corresponds to the amendments being made simultaneously 
to various filing requirements in 5 CFR part 1201.
    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 1209

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1209 as follows:

PART 1209--[AMENDED]

    1. The authority citation for part 1209 continues to read as 
follows:

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.


Sec. 1209.5  [Amended]

    2. Section 1209.5 is amended by revising paragraph (a)(1) and the 
first sentence of paragraph (c) to read as follows:
* * * * *
    (a) * * *
    (1) No later than 65 days after the date of issuance of the Office 
of Special Counsel's written notification to the appellant that it was 
terminating its investigation of the appellant's allegations or, if the 
appellant shows that the Special Counsel's notification was received 
more than 5 days after the date of issuance, within 60 days after the 
date the appellant received the Special Counsel's notification; or,
* * * * *
    (c) * * * Where an appellant has filed a request for a stay with 
the Board without first filing an appeal of the action, the appeal must 
be filed within 30 days after the date the appellant receives the order 
ruling on the stay request. * * *

    Dated: October 31, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-29312 Filed 11-5-97; 8:45 am]
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