00-28823. Practices and Procedures for Appeals and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing

AGENCY:

Merit Systems Protection Board.

ACTION:

Final rule.

SUMMARY:

The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure in this part to permit an appellant who files a whistleblower appeal with MSPB after first seeking corrective action from the Office of Special Counsel (OSC) to satisfy certain requirements for the information to be included in the appeal by filing a copy of Part 2: Reprisal for Whistleblowing of the complaint form submitted to OSC, Form OSC-11 (Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity), as revised August 2000. On October 31, 2000, OSC amended its rules to require that, effective December 1, 2000, complaints of prohibited personnel practices or other prohibited activity (other than an alleged Hatch Act violation) be submitted on Form OSC-11. The amendment to the Board's rules is intended to assist appellants who file whistleblower appeals after first seeking corrective action from the Special Counsel to provide the information necessary for the Board to determine whether the appellant has satisfied the requirement to exhaust OSC procedures prior to filing with the Board.

EFFECTIVE DATE:

November 13, 2000.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board, [phone].

SUPPLEMENTARY INFORMATION:

On October 31, 2000, the Office of Special Counsel amended its rules at 5 CFR 1800.1, effective December 1, 2000, to require an individual who files a complaint of a prohibited personnel practice or other prohibited activity (other than an alleged Hatch Act violation) to complete and submit Form OSC-11, Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity (65 FR 64881). OSC revised the complaint form in August 2000 to group details of whistleblower reprisal allegations in a separate section of the form. That section, designated as Part 2: Reprisal for Whistleblowing, requires the complainant to describe each whistleblowing disclosure and to identify when and to whom the disclosure was made, the personnel action that was taken or threatened because of the whistleblowing disclosure, and the date of any such action or threat. The form is available on the OSC Web site (www.osc.gov).

Under the Whistleblower Protection Act, a Federal employee, former employee, or applicant for employment may file an appeal with the Board challenging a personnel action that the individual believes was taken or threatened because of whistleblowing activity. If the individual seeks to challenge a personnel action that is not directly appealable to the Board under another law, rule, or regulation, however, he must first seek corrective action from the Special Counsel. Such an individual may file an individual right of action (IRA) appeal with the Board only if the Special Counsel declines to seek corrective action from the Board or does not inform the individual within 120 days of the filing of the complaint that corrective action will be sought. 5 U.S.C. 1214(a)(3), 5 U.S.C. 1221(a), 5 CFR 1209.2(b)(1), 5 CFR 1209.5(a).

An individual who may appeal a personnel action directly to the Board under another law, rule, or regulation may file his appeal with the Board and raise the allegation that the personnel action was based on whistleblowing as a part of that appeal. 5 U.S.C. 1221(b), 5 CFR 1209.2(b)(2). Alternatively, such an individual may first file a complaint with the Special Counsel and subsequently file an otherwise appealable action (OAA) appeal with the Board after exhausting OSC procedures. 5 CFR 1209.5(b); also see Hartfield v. Department of Defense, 70 M.S.P.R. 20 (1996).

The U.S. Court of Appeals for the Federal Circuit held in Ward v. Merit Systems Protection Board, 981 F.2d 521, 526-27 (Fed. Cir. 1992), that in an IRA appeal, the Board may consider only those matters raised by the appellant in the complaint to the Special Counsel. By providing the Board a copy of Part 2 of Form OSC-11, describing each whistleblowing reprisal claim, an appellant who first sought corrective action from the Special Counsel will help ensure that the Board has sufficient information to determine whether the appellant has satisfied the statutory requirement of exhausting the OSC procedures with respect to all matters raised before the Special Counsel before filing an appeal with the Board.

Therefore, the Board is amending its rule at 5 CFR 1209.6 by adding a new subsection (a)(6) to permit an appellant who files a whistleblower appeal with the Board after first seeking corrective action from the Special Counsel to satisfy the requirements of subsections (a)(3) through (a)(5) of that section by filing a copy of Part 2 of Form OSC-11, together with a copy of any continuation sheet with answers to Part 2 questions filed with OSC, and any supplement to the original complaint filed with OSC or completed by OSC and furnished to the appellant.

The Board is making two additional changes to reflect Board rulings that an appellant is protected by the Whistleblower Protection Act if a personnel action is taken against him because the agency believed he made whistleblowing disclosures (Special Counsel v. Department of the Navy, 46 M.S.P.R. 274 (1990)) or because of his close relationship to a whistleblower (Duda v. Department of Veterans Affairs, 51 M.S.P.R. 444 (1991)). In § 1209.6(a)(4), “the appellant's disclosure” is replaced by “each disclosure.” In § 1209.6(a)(5)(ii), “the appellant's whistleblowing” is replaced by “the whistleblowing disclosure.”

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
• Government employees

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

PART 1209—PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING

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

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

2. Amend § 1209.6 at paragraph (a) by revising subparagraphs (a)(4) and (a)(5)(ii) and by adding new subparagraph (a)(6) to read as follows:

§ 1209.6

Content of appeal; right to hearing.

(a) * * *

(4) A description of each disclosure evidencing whistleblowing as defined in § 1209.4(b) of this part; and

(5) * * *

(ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure, as described in § 1209.4(b) of this part.

(6) An appellant who first sought corrective action from the Special Counsel may satisfy the requirements of paragraphs (a)(3) through (a)(5) of this section by filing with the appeal a copy of Part 2: Reprisal For Whistleblowing of the complaint form submitted to the Office of Special Counsel (Form OSC-11, Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, Rev. 8/00), together with a copy of any continuation sheet with answers to Part 2 questions filed with the Office of Special Counsel, and any supplement to Part 2 of the original complaint filed with the Office of Special Counsel or completed by the Office of Special Counsel and furnished to the appellant.

* * * * *

Dated: November 6, 2000

Robert E. Taylor,

Clerk of the Board.