[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42685-42686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21288]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 63, No. 154 / Tuesday, August 11, 1998 /
Rules and Regulations
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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 for original jurisdiction cases to permit
assignment of certain of these cases to a judge other than an
administrative law judge, to permit delegation of authority to an
administrative law judge to decide Special Counsel stay requests, to
permit delegation of authority to a member of the Board to rule on
other matters related to a stay that has been granted to the Special
Counsel (including motions for extension or termination of a stay), and
to provide for judges to issue initial decisions, rather than
recommended decisions, in Special Counsel complaints (including alleged
violations of the Hatch Act) and proposed actions against
administrative law judges. Certain other changes are made to reorganize
and update the rules governing adjudication of original jurisdiction
cases for the benefit of the Board's customers. These changes are
intended to streamline the Board's adjudicatory procedures so that it
can manage its original jurisdiction caseload more efficiently and
effectively.
EFFECTIVE DATE: August 11, 1998.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: The Board previously published an interim
rule amending its regulations for the processing of original
jurisdiction cases (5 CFR part 1201, subpart D) to permit assignment of
certain of these cases to a judge other than an administrative law
judge, to permit delegation of authority to an administrative law judge
to decide Special Counsel stay requests, and to provide for judges to
issue initial decisions, rather than recommended decisions, in Special
Counsel complaints (including alleged violations of the Hatch Act) and
proposed actions against administrative law judges. The interim rule
made other changes in subpart D to reorganize and update the rules
governing adjudication of original jurisdiction cases for the benefit
of the Board's customers. 62 FR 48449, September 16, 1997. In issuing
the interim rule, the Board allowed 60 days for receipt of public
comments. No comments were received by the closing date, November 17,
1997.
The Board has determined that three changes should be made in the
interim rule. Amendments are being made to Sec. 1201.125(c)(2),
concerning exceptions to a recommended decision; Sec. 1201.134(b),
concerning the deciding official for Special Counsel stay requests and
related matters; and Sec. 1201.136(b), concerning Special Counsel
requests for extensions of stays.
Section 1201.125(c) describes the procedures to be followed where
an administrative law judge finds in a Hatch Act case involving a
Federal or District of Columbia Government employee that the Hatch Act
was violated but that the violation does not warrant removal. In this
circumstance, the administrative law judge issues a recommended
decision, rather than an initial decision. Under the interim rule,
Sec. 1201.125(c)(2) requires that any exceptions to a recommended
decision be filed within 35 days after the date of service of the
recommended decision.
In a final rule published on November 6, 1997 (62 FR 59991), the
Board amended various filing time limits, including the time limit for
filing a petition for review of a judge's initial decision. The
amendments made by that rule to Secs. 1201.113 and 1201.114 govern the
time for filing a petition for review of an initial decision in
original jurisdiction cases, as well as in appellate jurisdiction
cases. No amendment was made at that time, however, to the filing time
limit for exceptions to a recommended decision.
To conform the filing time limit for exceptions to a recommended
decision, therefore, the Board is amending Sec. 1201.125(c)(2) to
provide that any exceptions to a recommended decision must be filed
within 35 days after the date of service of the recommended decision
or, if the filing party shows that the recommended decision was
received more than 5 days after the date of service, within 30 days
after the date the filing party received the recommended decision.
Under the interim rule at Sec. 1201.134(b), any member of the Board
may delegate his or her authority to decide a Special Counsel request
for an initial stay to an administrative law judge. To expedite the
processing of matters related to a stay that has been granted to the
Special Counsel, including motions for extension or termination of a
stay, the Board is amending Sec. 1201.134(b) to also provide for
delegation of the authority to rule on such matters to a single Board
member. To the extent that Kling v. Department of Justice, 2 M.S.P.R.
464 (1980), holds that the Board may not delegate unreviewable
decisionmaking authority, it is overruled.
Under the interim rule, Sec. 1201.136(b) requires that the Special
Counsel file any request for extension of a stay, along with its
supporting brief, at least 15 days before the expiration date of the
stay. The provision also requires that any agency response be filed
within 10 days of the date of service of the Special Counsel's brief.
The intent of prescribing specific time limits in this section was to
allow sufficient time for Board attorneys to prepare a proposed
decision on the extension request, and for the Board members to
consider and vote on it, before the expiration date of the stay.
Experience operating under the interim rule, however, has
demonstrated that the time limits prescribed by Sec. 1201.136(b) often
leave insufficient time for the preparation and consideration of a
decision on an extension request. Furthermore, an agency may have
insufficient time to respond to the Special Counsel's extension request
if it is filed as late as 15 days before the stay expiration date and
served on the agency by regular mail. Therefore, the Board is amending
Sec. 1201.136(b) to require that a Special Counsel request for
extension of a stay, along with its supporting brief, be received by
the Board and the agency no later than 15 days before the expiration
date of the stay. The Special Counsel
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may use any method of filing and service described in Sec. 1201.134(f)
that will ensure receipt by the due date. Section 1201.136(b) is
further amended to require that any agency response to a Special
Counsel request for extension of a stay be received by the Board no
later than 8 days before the expiration date of the stay. The agency
may use any method of filing described in Sec. 1201.134(f) that will
ensure receipt by the due date.
Subsequent to the issuance of the interim rule on September 16,
1997, the Board issued an interim rule at 62 FR 66813, December 22,
1997, that, among other things, amended Secs. 1201.121 and 1201.131.
This final rule, therefore, notes that those two sections continue to
read as amended on December 22, 1997.
The Board is publishing this rule as a final rule pursuant to 5
U.S.C. 1204(h).
Accordingly, the Board adopts as final its interim rule published
at 62 FR 48449, September 16, 1997, with the following changes:
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.
1a. Sections 1201.121 and 1201.131 continue to read as amended by
62 FR 66813, December 22, 1997.
Sec. 1201.125 [Amended]
2. Section 1201.125 is amended at paragraph (c)(2) by removing the
period at the end of the second sentence and by adding in its place the
following: ``or, if the filing party shows that the recommended
decision was received more than 5 days after the date of service,
within 30 days after the date the filing party received the recommended
decision.''
Sec. 1201.134 [Amended]
3. Section 1201.134 is amended at paragraph (b) by adding the
following sentence at the end of the paragraph: ``The Board may
delegate to a member of the Board the authority to rule on any matter
related to a stay that has been granted to the Special Counsel,
including a motion for extension or termination of the stay.''
4. Section 1201.136 is amended by revising paragraph (b) to read as
follows:
Sec. 1201.136 [Amended]
* * * * *
(b) Extension of stay. Upon the Special Counsel's request, a stay
granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate
period of time, but only after providing the agency with an opportunity
to comment on the request. Any request for an extension of a stay under
5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no
later than 15 days before the expiration date of the stay. A brief
describing the facts and any relevant legal authority that should be
considered must accompany the request for extension. Any response by
the agency must be received by the Board no later than 8 days before
the expiration date of the stay.
* * * * *
Dated: August 4, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-21288 Filed 8-10-98; 8:45 am]
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