[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