Appellate Jurisdiction Update
| Published date | 09 April 2024 |
| Record Number | 2024-07191 |
| Citation | 89 FR 24681 |
| Court | Merit Systems Protection Board |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Page 24681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07191]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 24681]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Appellate Jurisdiction Update
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
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SUMMARY: This final rule updates the list of sources from which the
Merit Systems Protection Board (MSPB) derives appellate jurisdiction.
DATES: Effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT: Gina K. Grippando, Clerk of the Board,
Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419;
phone: (202) 653-7200; fax: (202) 653-7130; or email: [email protected].
SUPPLEMENTARY INFORMATION: On February 6, 2024, the Merit Systems
Protection Board (MSPB or Board) proposed an amendment to 5 CFR 1201.3,
which sets forth a non-exclusive list of the types of appeals within
the MSPB's jurisdiction. 89 FR 8083. In response to publication of the
proposed rule, the MSPB received three comments from three commenters.
The comments received by the MSPB are available for review by the
public at https://www.mspb.gov/foia/e-foiareadingroom.htm.
Comments and Summary of Changes to the Proposed Rule
The MSPB initially proposed amending 5 CFR 1201.3 to include a new
type of appeal proposed by the Office of Personnel Management (OPM) at
5 CFR 302.603. 89 FR 8083. OPM's proposed rule provided that certain
Federal employees moved from the competitive service into the excepted
service, or moved between schedules in the excepted service, would have
a right to appeal to the MSPB any purported loss of civil service
protections stemming from that move. 88 FR 63862.
OPM's Final Rule for 5 CFR 302.603, published elsewhere in this
issue of the Federal Register, adjusted the language of the proposed
regulation providing the appeal right. Generally, OPM's final rule at
section 302.603 permits an appeal for: (1) an agency's assertion that a
Federal employee moved from the competitive service into the excepted
service, or moved between schedules in the excepted service, would lose
appeal rights, competitive status, or other previously accrued
protections as a result of that move; and (2) an agency's failure to
provide required notice to the employee regarding whether the move
would affect the employee's appeal rights, competitive status, or other
accrued protections. An appeal arising under the first part of this
regulation would request that the MSPB correct the assertion from the
agency regarding the individual's alleged loss of appeal rights,
competitive status, or other accrued protections, stemming from the
move and direct the agency to afford such rights, status, and
protections to the employee in subsequent actions under chapters 43 or
75 of title 5, United States Code, except to the extent that any such
order would be inconsistent with an applicable statute. An appeal
arising under the second part of this regulation would request that the
MSPB order the employee's agency to issue the required notice regarding
the asserted effect of the move. The MSPB has thus adjusted the
language of its proposed rule implementing OPM's rule to accord with
OPM's revisions.
Additionally, the MSPB received three comments from three
commenters in response to its proposed rulemaking. Two of the
commenters did not provide any substantive comment on the MSPB's
proposal, but indicated general approval of the proposal. The third
commenter also expressed support for the MSPB's original proposal, but
further suggested that the MSPB clarify its proposal to include all of
the types of appeals provided by OPM in its proposed 5 CFR 302.603.
OPM's proposed rule provided not only appeals when individuals were
involuntarily moved, but also appeals when individuals believed that
their facially voluntary moves were coerced or otherwise involuntary.
The MSPB agrees with the commenter's suggestion and has reformulated
its draft rule to more clearly reflect all of the types of appeals
provided in OPM's final 5 CFR 302.603.
This final rule will become effective 30 days after publication in
the Federal Register.
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Civil rights, Government
employees.
For the reasons set forth above, 5 CFR part 1201 is amended as
follows:
PART 1201--PRACTICES AND PROCEDURES
0
1. The authority citation for part 1201 continues to read as follows:
Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331,
unless otherwise noted.
Sec. 1201.3 [Amended]
0
2. Section 1201.3 is amended by adding paragraph (a)(12) to read as
follows:
Sec. 1201.3 Appellate Jurisdiction.
(a) * * *
(12) Actions Related to Placement or Movement into an Excepted
Service Position Without Civil Service Protections. (i) An agency
assertion that an involuntary (including a facially voluntary, but
alleged to be involuntary) movement or placement of a competitive
service employee into the excepted service, will eliminate competitive
status or any other procedural and appeal rights that the employee had
previously accrued. (5 CFR 302.603(b); 5 CFR 302.603(d));
(ii) An agency assertion that an involuntary (including a facially
voluntary, but alleged to be involuntary) movement or placement of an
excepted service employee into a different schedule of the excepted
service, will eliminate competitive status or any other procedural and
appeal rights that the employee had previously accrued. (5 CFR
302.603(b); 5 CFR 302.603(d));
(iii) An agency's failure to provide the required notice, under 5
CFR 302.602(c)(1), of the effect of the above-described movements or
placements on the employee's status or procedural and appeal rights. (5
CFR 302.603(c)).
* * * * *
Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024-07191 Filed 4-4-24; 8:45 am]
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