Practice and procedures: Original jurisdiction cases; delegation of authority, etc.,

[Federal Register: August 11, 1998 (Volume 63, Number 154)]

[Rules and Regulations]

[Page 42685-42686]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr11au98-1]

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. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.

[[Page 42685]]

MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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 filedwithin 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 filedas 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

[[Page 42686]]

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. 98-21288Filed8-10-98; 8:45 am]

   BILLING CODE 7400-01-U