[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17306]


[[Page Unknown]]

[Federal Register: July 18, 1994]


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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 772

RIN 3206-AF76

 

Interim Relief

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is publishing 
final regulations which reflect administrative case law on taking 
personnel actions to provide interim relief under the Whistleblower 
Protection Act of 1989. These regulations also reflect OPM's initiative 
to sunset the Federal Personnel Manual.

EFFECTIVE DATE: July 18, 1994.

FOR FURTHER INFORMATION CONTACT:
Gary D. Wahlert (202) 606-2920.

SUPPLEMENTARY INFORMATION: OPM published for comment proposed changes 
to the regulations on this subject in the Federal Register on February 
17, 1994 (59 FR 7909). Comments and suggestions were received from 
three agencies and eighteen individuals. These comments and 
suggestions, along with the rationale for and explanations of changes 
to the regulations, are discussed below.
    The Whistleblower Protection Act of 1989 (WPA), Pub. L. 101-12 
codified at 5 U.S.C. 7701(b)(2)(A), provided that prevailing parties in 
an appeal to the Merit Systems Protection Board (MSPB) ``* * * shall be 
granted the relief provided in the decision, and remaining in effect 
pending the outcome of any petition for review * * *.'' OPM published 
final regulations on this subject in the Federal Register on January 
31, 1992 (57 FR 3707-3715). The final regulations authorized agencies 
to take interim personnel actions to provide a prevailing applicant or 
employee the interim relief ordered in an MSPB initial decision. 
Interim personnel actions include, but are not limited to, interim 
appointments, interim repromotions after demotions, and interim within-
grade increases.
    After these regulations were published, the Merit Systems 
Protection Board (MSPB) issued an administrative decision in Leonard 
Ginocchi v. Department of Treasury, 53 M.S.P.R. 62 (1992), which 
explained MSPB's interpretation of the WPA with regard to interim 
relief. In Ginocchi, the Board ruled that it would not look behind the 
agency's determination under 5 U.S.C. 7701(b)(2)(A) that returning an 
employee to the workplace would be unduly disruptive. It also held that 
an agency making a determination of undue disruption did not have to 
keep the employee on excused absence (administrative leave), but could 
place the employee in other duties. OPM believes this facet of Ginocchi 
is a reasonable and persuasive interpretation of the WPA. Since this 
interpretation is inconsistent with a portion of OPM's regulations 
(which was based on a more restrictive interpretation), OPM proposed to 
delete that portion of the regulations--section 772.102(d). This change 
helps reduce any confusion by practitioners before the Board about 
their respective rights and responsibilities regarding interim relief.
    With regard to the proposed change to the regulations, one 
commenter expressed concern that deletion of the paragraph describing 
the actions an agency may take to provide interim relief might be 
misconstrued or misunderstood to mean that an agency no longer would 
have the flexibility to place an employee in a non-duty, paid status 
during interim relief. (Several commenters did misconstrue the proposed 
change in this manner.) OPM emphasizes that this is not the intent of 
the change. OPM believes that the statute itself and MSPB's 
administrative case law noted above clearly show that an agency may 
place an employee or applicant in a non-duty, pay status when an 
``unduly disruptive'' determination is made provided the employee or 
applicant receives ``pay, compensation, and all other benefits as terms 
and conditions of employment during the period pending the outcome of 
any petition for review * * *.'' [5 U.S.C. 7701(b)(2)(B)]
    Another commenter noted that the current regulations refer to an 
agency's authority to place an employee ``in the same or similar 
position previously occupied'' and wondered whether that authority 
would remain intact under the proposed change. An agency may continue 
to place an employee in a ``similar'' position under the change but 
under MSPB administrative case law the agency would be required to make 
a determination of ``undue disruption'' whenever the employee is not 
placed in the exact position he or she previously held.
    Several commenters stated that they believed that the ``unduly 
disruptive part of the law'' has been used against union personnel as a 
``union busting tactic'' and that OPM proposes to ``advance the anti 
labor tactics'' of the MSPB. The basis for this belief is unclear. OPM 
does note that Federal unions with consultation rights under 5 U.S.C. 
7117(d)(2) were afforded an opportunity to provide their views and 
recommendations on the proposed regulations. Similar concerns or 
beliefs were not raised by these organizations.
    Finally, several commenters stated that they believed that MSPB 
will not enforce its own regulations on interim relief. Another 
commenter stated that his had occurred in his individual appeal. OPM's 
changes do not address these concerns about MSPB's enforcement of its 
regulations.
    Since Federal Personnel Manual Supplement 296-33 was discontinued 
under OPM's initiative to sunset the FPM, OPM has deleted the reference 
to it in part 772 which provided that interim relief actions needed to 
be prepared in accordance with the FPM. Now, agencies may rely on The 
Guide to Processing Personnel Actions, an OPM handbook effective on 
January 1, 1994 for guidance on how to prepare interim relief actions. 
No concerns were raised by commenters about this portion of the 
proposed change.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it applies 
only to Federal employees.

List of Subjects in 5 CFR Part 772

    Administrative practice and procedure; Government employees.

U.S. Office of Personnel Management.
James B. King.
Director.

    Accordingly, OPM amends part 772 of title 5 of the Code of Federal 
Regulations as follows:

PART 772--INTERIM RELIEF

    1. The authority citation for part 772 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.


Sec. 772.102  [Amended]

    2. Section 772.102 is amended by removing paragraphs (d) and (g); 
redesignating paragraphs (e) and (f) as paragraphs (d) and (e) 
respectively; and by removing the semicolon and the word ``and'' at the 
end of paragraph (e) and inserting a period in its place.

[FR Doc. 94-17306 Filed 7-15-94; 8:45 am]
BILLING CODE 6325-01-M