[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17047-17048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8644]
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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: Interim rule with request for comments.
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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is
amending its rules of practice and procedure for whistleblower appeals
to implement the provisions of Public Law 103-424 (MSPB and Office of
Special Counsel reauthorization of 1994) that: Added a new personnel
action and amended another in the statutory provisions governing
prohibited personnel practices; and added a requirement that the Board
refer its findings to the Special Counsel when it determines in a
whistleblower proceeding that a current Federal employee may have
committed a prohibited personnel practice. The Board is also amending
its rules of practice and procedure for whistleblower appeals to
include a cross-reference to subpart H of part 1201 regarding awards of
attorney fees and consequential damages. The purpose of these
amendments is to provide guidance to the parties to MSPB cases and
their representatives regarding the new and amended personnel actions,
to refer parties and their representatives to subpart H of part 1201
for the procedures governing requests for attorney fees and
consequential damages, and to provide public notice of the requirement
that the Board refer certain prohibited personnel practice findings to
the Special Counsel. The Board is implementing other provisions of
Public Law 103-424 through an amendment to its rules at 5 CFR part
1201, which is being published simultaneously with this amendment.
DATES: Effective date April 9, 1997. Submit written comments on or
before June 9, 1997.
ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC
20419. Comments may be sent via e-mail to mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: Public Law 103-424, which reauthorized the
Board and the Office of Special Counsel in October 1994, also included
a number of provisions that affect cases involving prohibited personnel
practices, especially actions based on whistleblowing. This amendment
to the Board's rules at 5 CFR part 1209 reflects two of those
provisions.
New and Amended Personnel Actions
Section 5 of Public Law 103-424 amended 5 U.S.C. 2302(a)(2)(A), the
list of personnel actions that may form the basis for a prohibited
personnel practice, to: (1) add a new personnel action, ``a decision to
order psychiatric testing or examination;'' and (2) replace the
existing provision, ``any other significant change in duties or
responsibilities which is inconsistent with the employee's salary or
grade level,'' with an amended provision, ``any other significant
change in duties, responsibilities, or working conditions.'' Because
the Board's rules at 5 CFR 1209.4(a) incorporate the statutory list of
personnel actions at 5 U.S.C. 2302(a)(2)(A), it is necessary to amend
the Board's rules to reflect the changes made in the statutory
provision by Public Law 103-424.
The Board has ruled that these amendments to 5 U.S.C. 2302(a)(2)(A)
may not be applied retroactively to cases pending on the effective date
of the amendments, October 29, 1994, where the personnel action
occurred prior to the effective date, because the amendments enlarge
the category of conduct that may form the basis of a prohibited
personnel practice. See Caddell v. Department of Justice, 66 M.S.P.R.
347, 352-54 (1995), and Briley v. National Archives and Records
Administration, 71 M.S.P.R. 211, 223-224 (1996).
Referrals to the Special Counsel. Section 4(c) of Public Law 103-
424 amended 5 U.S.C. 1221(f) to add a new requirement that when the
Board determines in a proceeding under section 1221 of title 5
(governing individual right of action appeals and certain other
whistleblower appeals) that a current Federal employee may have
committed a prohibited personnel practice, the Board is to refer the
matter to the Special Counsel for investigation and possible
prosecution under 5 U.S.C. 1215. The Board began making such referrals
to the Special Counsel soon after this provision took effect on October
29, 1994. It is now amending its rules at 5 CFR part 1209 by adding a
new subpart E to provide public notice that it is required to make such
referrals.
[[Page 17048]]
Cross-Reference to Subpart H of Part 1201
This amendment also includes a change to 5 CFR 1209.3,
``Application of 5 CFR part 1201,'' to include a statement that
requests for attorney fees and consequential damages in connection with
appeals under part 1209 are governed by subpart H of part 1201.
Citations
All citations to MSPB decisions are to West Publishing Company's
Merit Systems Protection Board Reporter (M.S.P.R.). This publication is
available in many law libraries and some public libraries. It is also
available in the MSPB Library, 1120 Vermont Avenue, NW, 8th Floor,
Washington, DC, which is open to the public between 1:00 and 5:00 PM,
Monday through Friday (excluding Federal holidays).
The Board is publishing this rule as an interim 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]
1-2. The authority citation for part 1209 continues to read as
follows:
Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.
3. Section 1209.3 is amended by adding at the end of the existing
text the following sentence:
Sec. 1209.3 Application of 5 CFR part 1201.
* * * The Board will apply the provisions of subpart H of part 1201
regarding awards of attorney fees and consequential damages under 5
U.S.C. 1221(g) to appeals governed by this part.
4. Section 1209.4 is amended by removing ``or'' at the end of
paragraph (a)(9), by redesignating paragraph (a)(10) as (a)(11) and
revising it, and by adding a new paragraph (a)(10) to read as follows:
Sec. 1209.4 Definitions.
(a) * * *
* * * * *
(10) A decision to order psychiatric testing or examination; or
(11) Any other significant change in duties, responsibilities, or
working conditions.
* * * * *
5. Part 1209 is amended by adding subpart E to read as follows:
Subpart E--Referrals to the Special Counsel
Sec. 1209.13 Referral of findings to the Special Counsel.
When the Board determines in a proceeding under this part that
there is reason to believe that a current Federal employee may have
committed a prohibited personnel practice described at 5 U.S.C.
2302(b)(8), the Board will refer the matter to the Special Counsel to
investigate and take appropriate action under 5 U.S.C. 1215.
Dated: April 1, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-8644 Filed 4-8-97; 8:45 am]
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