00-32503. Personnel Appeals Board; Procedural Rules

AGENCY:

General Accounting Office Personnel Appeals Board.

ACTION:

Final rule.

SUMMARY:

The General Accounting Office Personnel Appeals Board hereby amends its regulations to permit charging parties to bring their cases directly to the Board after the passage of 180 days from the filing of the charge, if the Board's General Counsel has not yet completed the investigation of the charge, if the Board's General Counsel has not yet completed the investigation of the charge and issued a Right to Appeal Letter. This amendment offers employees an option for expedited processing and conforms Board procedures with those of other agencies that hear employment-related appeals.

DATES:

This final rule is effective December 21, 2000.

ADDRESSES:

General Accounting Office Personnel Appeals Board, Suite 560, Union Center Plaza II, 441 G Street, NW., Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT:

Beth Don, Executive Director, 202-512-6137.

SUPPLEMENTARY INFORMATION:

The General Accounting Office Personnel Appeals Board performs for GAO employees the functions performed in the executive branch by the Merit Systems Protection Board, the Equal Employment Opportunity Commission, and the Federal Labor Relations Authority. In order to bring a case before the Board, except in cases involving a Reduction in Force, an employee must first file a charge with the Board's General Counsel. The General Counsel investigates the charge and determines whether there are reasonable grounds to believe that the employee's rights have been violated. At the end of the investigation, the General Counsel issues to the employee a “report and recommendation” that explains the results of the investigation. If the General Counsel finds that there are reasonable grounds to believe that the employee's rights have been violated, then the General Counsel offers to represent the employee in a proceeding before the Board. If the General Counsel does not find “reasonable grounds,” the General Counsel will not represent the employee. The employee, however, may still bring the case to the Board by representing him- or herself, or by obtaining private representation. Accompanying the report and recommendation, whether favorable or unfavorable, is a “Right to Appeal” Letter which permits the employee to file a petition for review with the Board.

Under the Board's current regulations, an employee may not bring his or her complaint to the Board until the General Counsel's investigation is completed and the employee has received a “Right to Appeal” Letter. In other agencies that hear employment-related appeals, employees are able to “opt-out” of the investigative phase and proceed directly to the hearing stage after they have waited a certain period of time.

The Board believes that the approach taken by these agencies is a reasonable and fair one. It therefore is adopting a similar approach for cases within its jurisdiction. The Board published this rule as a proposed rule on August 30, 2000 (65 FR 52674), and invited comments by October 30, 2000. One comment from a current litigant before the Board, supporting the proposed rule, was received within the comment period. The proposed rule is adopted as a final rule without change.

Under the final rule set forth below, GAO employees have the option of bringing their cases directly to the Board if 180 days have passed and the Board's General Counsel has not yet completed the investigation and issued a “Right to Appeal” Letter concerning their case. Thus, no employee will have to wait more than 180 days to have the opportunity to present his or her case to an administrative judge. The amendments do not require an employee to file with the Board as soon as the 180-day period has expired; he or she may file at any time after 180 days have passed, so long as no “Right to Appeal” letter has been issued. An employee still retains the right to wait for the General Counsel to complete the investigation, before going forward.

Under the final regulations, certain consequences flow from an employee's decision to file a petition for review with the Board before the completion of the General Counsel's investigation. First, the investigation by the Board's General Counsel would be terminated as soon as the employee files a petition for review with the Board. The General Counsel would not gather any further evidence after that point, and the employee would not receive a report from the General Counsel analyzing the facts or law relevant to the employee's case. Second, the Board's rules only permit the General Counsel to represent employees before the Board if the General Counsel completes the investigation and finds “reasonable grounds” to believe that the charge is true. Under the final regulations, therefore, an employee who “opts out” of the investigation after 180 days, and files directly with the Board, would forego the opportunity to have the General Counsel present his or her case to the Board. Such an employee could either represent him- or herself, or obtain private representation.

The Board believes that these consequences are necessary features of its final regulation. While the Board wishes to extend a choice to employees, it does not believe that it would be justifiable to permit employees to go forward before both the General Counsel's Office and the Board simultaneously. Nor would it be appropriate to permit an employee to be represented at public expense in the absence of a finding of reasonable cause by the General Counsel.

The Personnel Appeals Board certifies under 5 U.S.C. 605(b), enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not have a significant economic impact on a substantial number of small entities, because it applies exclusively to employees and applicants for employment at the General Accounting Office. For this reason, a regulatory flexibility analysis is not required.

List of Subjects in 4 CFR Part 28

• Administrative practice and procedure
• Claims
• Equal employment opportunity
• Government employees
• Labor-management relations

For the reasons stated in the foregoing preamble, the General Accounting Office Personnel Appeals Board amends 4 CFR Chapter I, Subchapter B, Part 28 as follows:

PART 28—GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT THE GENERAL ACCOUNTING OFFICE

1. The authority citation for Part 28 continues to read as follows:

Authority: 31 U.S.C. 753.

2. Amend § 28.12 by adding a new paragraph (g) to read as follows:

§ 28.12

General Counsel procedures.

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(g) If 180 days have elapsed since the filing of the charge, and the General Counsel has not completed the investigation and issued a Right to Appeal Letter, the charging party may bring his or her case directly to the Board by filing a petition for review in accordance with § 28.18. If a charging party exercises this option to file a petition for review with the Board without waiting for the completion of the investigation, the General Counsel shall not represent the charging party in proceedings before the Board. The charging party may represent him- or herself or obtain other representation. The General Counsel shall close the investigation of the charge upon being notified by the Clerk of the Board that the charging party has filed a petition for review with the Board under this paragraph (g).

3. Amend § 28.18 by revising paragraphs (a) and (b) to read as follows:

§ 28.18

Filing a petition for review with the Board.

(a) Who may file. Any person who is claiming to be affected adversely by GAO action or inaction that is within the Board's jurisdiction under subchapter IV of chapter 7 of title 31, United States Code, or who is alleging that GAO or a labor organization engaged or is engaging in an unfair labor practice, may file a petition for review if one of the following is met:

(1) The person has received a Right to Appeal Letter from the Board's General Counsel; or

(2) At least 180 days have elapsed from the filing of the charge with the Board's General Counsel and the General Counsel has not issued a Right to Appeal Letter; or

(3) The person was separated due to a Reduction in Force and chooses to file an appeal directly with the Board, without first filing with the Board's General Counsel, as provided in § 28.13.

(b) When to file. (1) Petitions for review filed pursuant to paragraph (a)(1) of this section must be filed within 30 days after service upon the charging party of the Right to Appeal Letter from the Board's General Counsel.

(2) Petitions for review filed pursuant to paragraph (a)(2) of this section may be filed at any time after 180 days have elapsed from the filing of the charge with the Board's General Counsel, provided that the General Counsel has not issued a Right to Appeal Letter concerning the charge.

(3) Petitions for review filed pursuant to paragraph (a)(3) of this section must be filed within 30 days after the effective date of the separation due to a Reduction in Force.

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Michael Wolf,

Chair, Personnel Appeals Board, U.S. General Accounting Office.