Practice and procedure: Whistleblowing; appeals and stay requests of personnel actions,

[Federal Register: August 3, 1998 (Volume 63, Number 148)]

[Rules and Regulations]

[Page 41181]

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

[DOCID:fr03au98-2]

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: Final rule.

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.

EFFECTIVE DATE: August 3, 1998.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, (202) 653-7200.

SUPPLEMENTARY INFORMATION: The Board previously published an interim rule 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, and to include a cross- reference to subpart H of part 1201 regarding awards of attorney fees and consequential damages (62 FR 17047, April 9, 1997). The interim rule requested public comments and allowed 60 days, until June 9, 1997, for receipt of such comments.

Comments were received from one Federal agency suggesting that the Board amend part 1209 to impose a time limit for bringing an action to the Special Counsel as a pre-condition for later bringing an individual right of action (IRA) appeal to the Board. Although the recommendation does not address any of the changes made by the interim rule, the Board will address it.

The Board has concluded that imposing such a time limit would not be a proper exercise of its regulatory authority. That authority is limited to matters within the Board's jurisdiction (5 U.S.C. 1204(h) and 7701(k), and 38 U.S.C. 4331).

Under 5 U.S.C. 7121(g)(2), an employee who has been affected by a prohibited personnel practice (other than discrimination) may elect among three specified remedies: (1) An appeal to MSPB under 5 U.S.C. 7701, (2) a grievance under a negotiated grievance procedure, or (3) an action under subchapters II and III of chapter 12 of title 5. Subchapter II concerns Special Counsel actions (which may lead to corrective action complaints before the Board), and subchapter III covers IRA appeals. Because the conjunctive is used with regard to the Special Counsel and IRA processes, it appears that Congress intended, without limits other than those specified, to allow complainants to go to the Special Counsel and bring IRA appeals to the Board on the same matter. By limiting the matters that can be brought to the Board under subchapter III to only ``timely-raised'' matters brought to OSC under subchapter II, as suggested by the commenter, the Board would be adding a limitation to the IRA appeal choice that is not contained in the statute.

The Board is publishing this rule as a final rule pursuant to 5 U.S.C. 1204(h).

Accordingly, the Board adopts as a final rule, without change, its interim rule published at 62 FR 17047, April 9, 1997.

Dated: July 27, 1998. Robert E. Taylor, Clerk of the Board.

[FR Doc. 98-20448Filed7-31-98; 8:45 am]

BILLING CODE 7400-01-U