[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14590]


  Federal Register / Vol. 59, No. 115 / Thursday, June 16, 1994 /
  
[[Page Unknown]]

[Federal Register: June 16, 1994]


                                                   VOL. 59, NO. 115

                                            Thursday, June 16, 1994

MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201

 

Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Board is amending its practices and procedures to identify 
the evidence which an agency must provide to show compliance with an 
interim relief order and to provide for enforcement of interim relief 
in circumstances where the sanction of dismissing the agency's petition 
for review is ineffective. This amendment revises the Board's 
regulation to more precisely reflect the language of the Whistleblower 
Protection Act of 1989, 5 U.S.C. 7701(b)(2)(A).

EFFECTIVE DATE: June 16, 1994.

FOR FURTHER INFORMATION CONTACT:
Robert Taylor, (202) 653-7200.

SUPPLEMENTARY INFORMATION: Under 5 U.S.C. 7701(k), the Board is 
authorized to prescribe regulations to carry out the purpose of 5 
U.S.C. 7701(b)(2). An appellant who is the prevailing party in an 
initial decision under 5 U.S.C. 7701(b)(1) may be entitled to interim 
relief pending the outcome of any petition for review under 5 U.S.C. 
7701(e). In Ginocchi v. Department of the Treasury, 53 M.S.P.R. 62, 68 
n.4 (1992), the Board ruled that it would not entertain motions for 
compliance with an order of interim relief and that the appellant's 
remedy for an agency's failure to provide the ordered interim relief 
would be a motion to dismiss the agency's petition for review. However, 
this sanction is an ineffective means to obtain compliance in cases 
where the appellant or an intervenor petitions for review of a decision 
entitling the appellant to interim relief, such as a decision 
mitigating the penalty imposed by the agency. The new Sec. 1201.115(c) 
implements the Board's determination that in such cases the appropriate 
enforcement mechanism is the Board's authority to order withholding of 
the salary of the agency official responsible for complying with the 
interim relief order.
    Under Sec. 1201.115(b)(1), a petition for review or cross petition 
for review by the agency must be accompanied by evidence that the 
agency has provided any interim relief ordered (or by the evidence 
relating to an ``undue disruption'' determination which is specified in 
Sec. 1201.115(b)(2)). New Sec. 1201.116(a) implements Ginocchi, supra, 
by providing that the appellant may request dismissal of the agency's 
petition for failure to provide the required interim relief (or the 
required alternative evidence). It clarifies that dismissal may be 
sought in either the appellant's response to the agency's petition or 
in a later motion to dismiss provided the latter is based on 
information not readily available before the time limit for responding 
to the agency's petition for review. New Sec. 1201.116(b) provides for 
petitions for enforcement of interim relief when such relief is still 
due after issuance of the final decision (e.g., a final pay check or a 
lump sum payment of unused annual leave earned during the interim 
period) and the relief sought is not available through a petition for 
enforcement of the final decision because the appellant is not the 
prevailing party.
    The Board is publishing this rule as a final rule pursuant to 
1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Government employees.

    Accordingly, the Merit Systems Protection Board amends 5 CFR part 
1201 as follows:

PART 1201--[AMENDED]

    1. The authority citation for part 1201 continues to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701 unless otherwise noted.

    2. In Sec. 1201.115, paragraph (c) is redesignated as paragraph (d) 
and paragraphs (b)(1) and (b)(2) are revised and a new paragraph (c) is 
added to read as follows:


Sec. 1201.115  Contents of petition for review.

* * * * *
    (b)(1) If the appellant was the prevailing party in the initial 
decision, and the decision granted the appellant interim relief, any 
petition for review or cross petition for review filed by the agency 
must be accompanied by evidence that the agency has provided the 
interim relief required, except when the agency has made a 
determination as described in paragraph (b)(2) of this section. The 
agency may comply by submitting an SF 50 or SF 52, a letter from an 
agency official directing the appellant to return to work and informing 
the appellant of his or her reinstatement as of the date of the initial 
decision, or an affidavit or declaration specifying the manner of the 
agency's compliance. The interim relief must be effected retroactively 
to the date of the initial decision. Cancellation of the appealed 
action or relief effected retroactively to the date of the action will 
result in dismissal of the agency's petition for mootness.
    (2) Under 5 U.S.C. 7701(b)(2), if the initial decision provides 
interim relief which requires that the appellant be returned to his or 
her place of employment pending the outcome of any petition for review 
and the agency determines that the return or presence of the appellant 
will be unduly disruptive to the work environment, the agency must 
notify both the appellant and the judge in writing. The agency must 
also provide evidence of such notification to the Board at the time of 
filing a petition or cross petition for review. The evidence must show 
that the agency has provided that the appellant will receive 
appropriate pay, compensation, and all other benefits as terms and 
conditions of employment from the date of the initial decision until a 
final decision is issued.
* * * * *
    (c) If an appellant or an intervenor files a petition or cross 
petition for review of an initial decision ordering interim relief, 
upon order of the Clerk of the Board the agency must submit evidence 
that it has provided the interim relief required (or, where applicable, 
the evidence specified in paragraph (b)(2) of this section), and it 
must submit the name of the official responsible for compliance. The 
agency's failure to submit acceptable evidence of compliance with the 
interim relief order is a basis for the Board to order the withholding 
of the salary of the responsible official pursuant to 5 U.S.C. 
1204(e)(2)(A) and 5 CFR 1201.183(c). This sanction is in addition to 
the dismissal of an agency petition or cross petition for review 
provided for in paragraph (b)(4) of this section.
* * * * *
    3. Sections 1201.116 through 1201.119 are redesignated as 
Secs. 1201.117 through 1201.120, and a new Sec. 1201.116 is added to 
read as follows:


Sec. 1201.116  Appellant requests for enforcement of interim relief.

    (a) Before a final decision is issued. If the agency files a 
petition for review or a cross petition for review and has not provided 
required interim relief, the appellant may request dismissal of the 
agency's petition. Any such request must be filed with the Clerk of the 
Board within 25 days of the date of service of the agency's petition. A 
copy of the response must be served on the agency at the same time it 
is filed with the Board. The agency may respond with evidence and 
argument to the appellant's request to dismiss within 15 days of the 
date of service of the request. If the appellant files a motion to 
dismiss beyond the time limit, the Board will dismiss the motion as 
untimely unless the appellant shows that it is based on information not 
readily available before the close of the time limit.
    (b) After a final decision is issued. If the appellant is not the 
prevailing party in the final Board order, and if the appellant 
believes that the agency has not provided full interim relief, the 
appellant may file an enforcement petition with the regional office 
under Sec. 1201.182. The appellant must file this petition within 20 
days of learning of the agency's failure to provide full interim 
relief. If the appellant prevails in the final Board order, then any 
interim relief enforcement motion filed will be treated as a motion for 
enforcement of the final decision. Petitions under this subsection will 
be processed under Sec. 1201.183.

    Dated: June 10, 1994.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 94-14590 Filed 6-15-94; 8:45 am]
BILLING CODE 7400-01-M