[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17041-17047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8643]



 ========================================================================
 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.
 
 ========================================================================
 

  Federal Register / Vol. 62, No. 68 / Wednesday, April 9, 1997 / Rules 
and Regulations  

[[Page 17041]]


=======================================================================
-----------------------------------------------------------------------

MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule with request for comments.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules of practice and procedure to: Implement the 
compensatory damages provision of the Civil Rights Act of 1991, Public 
Law 102-166, with respect to MSPB cases where certain kinds of 
discrimination are found; implement the attorney fee provision of the 
Uniformed Services Employment and Reemployment Rights Act of 1994, 
Public Law 103-353; implement the attorney fee, consequential damages, 
and choice of procedures provisions of Public Law 103-424 (MSPB and 
Office of Special Counsel reauthorization of 1994); and amend its 
existing rules governing requests for attorney fees to change the time 
limit for filing and incorporate an evidentiary requirement from the 
Board's case law. The purpose of these amendments is to provide 
guidance to the parties to MSPB cases, and their representatives, on 
how to proceed with respect to requests for attorney fees, 
consequential damages, and compensatory damages, and to inform them of 
the statutory requirement regarding choice of procedures in cases 
involving both an appealable action and a prohibited personnel practice 
other than discrimination. The Board is also making a technical change 
to its rules governing mixed cases to reflect the fact that the Equal 
Employment Opportunity Commission's regulations governing Federal 
employee discrimination complaints are now found at 29 CFR part 1614. 
The Board is implementing other provisions of Public Law 103-424 
through an amendment to its rules at 5 CFR part 1209, which is being 
published simultaneously with this amendment.

DATES: Effective date April 9, 1997. Submit written comments on or 
before June 9, 1997.

ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit 
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC 
20419. Comments may be sent via e-mail to [email protected].

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

SUPPLEMENTARY INFORMATION: This amendment consists principally of the 
addition of a new subpart H to the Board's rules of practice and 
procedure at 5 CFR part 1201. This new subpart sets forth the Board's 
statutory authorities to make awards of attorney fees (plus, where 
applicable, costs, expert witness fees, and litigation expenses), 
consequential damages, and compensatory damages. It combines the 
Board's existing procedural rules governing requests for attorney fees 
(with modifications) with new procedural rules governing requests for 
consequential damages and compensatory damages. Conforming amendments 
are made in appropriate sections of part 1201.

Awards of Attorney Fees

    The Civil Service Reform Act of 1978 (CSRA), Public Law 95-454, 
authorized the newly established Merit Systems Protection Board to 
award attorney fees to an employee or applicant who prevails before the 
Board. The CSRA provided two authorities for attorney fee awards. The 
first, 5 U.S.C. 7701(g)(1), authorizes an award where warranted in the 
interest of justice, including any case in which the agency engaged in 
a prohibited personnel practice or the agency's action was clearly 
without merit. The second, 5 U.S.C. 7701(g)(2), applies only to cases 
where the employee or applicant prevails on a finding of 
discrimination; it authorizes an award under the standards of section 
706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)). The 
Civil Rights Act standard also permits an award for out-of-pocket costs 
such as those for copying, postage, and facsimile (see Chin v. 
Department of the Treasury, 55 M.S.P.R. 84, 86 (1992)).
    Although the CSRA authorities for attorney fee awards were made a 
part of chapter 77 of title 5 of the U.S. Code, which governs appeals 
to MSPB, subsequent case law determined that section 7701(g) provides 
authority for an award of attorney fees in other kinds of MSPB cases as 
well. In Frazier v. MSPB, 672 F.2d 150, 168-170 (D.C. Cir. 1982), the 
U.S. Court of Appeals for the District of Columbia Circuit ruled that 
section 7701(g) permitted the Board to award attorney fees where the 
Special Counsel obtained corrective action from the Board for an 
employee and the employee also was represented by private counsel. In 
Social Security Administration v. Goodman, 28 M.S.P.R. 120, 124-125 
(1985), the Board, citing Frazier, ruled that it could award attorney 
fees to a prevailing administrative law judge in an agency action 
brought under 5 U.S.C. 7521.
    The Whistleblower Protection Act of 1989 (WPA), Public Law 101-12, 
included a new provision--at that time 5 U.S.C. 1221(g)(1), now 5 
U.S.C. 1221(g)(2)--making an agency liable for payment of attorney fees 
and costs in an action before MSPB where an employee, former employee, 
or applicant prevails on a finding of a prohibited personnel practice. 
Although enacted as part of the new chapter 12 of title 5, governing 
individual right of action (IRA) appeals filed by whistleblowers, the 
provision, by its plain language, applies to any MSPB case in which an 
employee, former employee, or applicant prevails on a finding of a 
prohibited personnel practice. The Board has construed ``costs'' in 
this provision to include a prevailing employee's out-of-pocket costs, 
such as those for copying, clerical services, word processing services, 
postage, and facsimile (see Bonggat v. Department of the Navy, 59 
M.S.P.R. 175, 179 (1993)).
    In October 1994, President Clinton signed two new laws that provide 
four additional authorities for the Board to make attorney fee awards. 
The Uniformed Services Employment and Reemployment Rights Act of 1994 
(USERRA), Public Law 103-353, authorized the Board to adjudicate 
Federal employee complaints alleging violation of a right or benefit to 
which an individual is entitled following service in the uniformed 
services and

[[Page 17042]]

included authority for the Board to award reasonable attorney fees, 
expert witness fees, and other litigation expenses (38 U.S.C. 
4324(c)(4)). Public Law 103-424, which reauthorized MSPB and the Office 
of Special Counsel, included a new provision--5 U.S.C. 1221(g)(1)(B)--
that requires an award of attorney fees and any other reasonable costs 
incurred when the Board orders corrective action under section 1221 of 
title 5, governing IRA appeals and certain other whistleblower appeals. 
(The former section 1221(g)(1) was renumbered section 1221(g)(2).) 
Public Law 103-424 also included two provisions authorizing awards of 
attorney fees in Special Counsel cases. In a corrective action case 
under 5 U.S.C. 1214, where the Special Counsel obtains corrective 
action for an employee, former employee, or applicant, and that 
individual also is represented by private counsel, the Board may award 
attorney fees under 5 U.S.C. 1214(g)(2). Where an employee against whom 
the Special Counsel has brought a disciplinary action under 5 U.S.C. 
1215 is the prevailing party, the Board may award attorney fees under 5 
U.S.C. 1204(m).
    Thus, the Board now has seven--sometimes overlapping-- statutory 
authorities to make awards of attorney fees. (An eighth authority was 
enacted in October 1996 as part of the Presidential and Executive 
Office Accountability Act, Public Law 104-331, but that authority does 
not take effect with respect to cases to be adjudicated by MSPB until 
the President issues implementing regulations or on October 1, 1998, 
whichever is earlier. See section 2(a), adding new 3 U.S.C. 435.)
    The Board's existing rules governing requests for attorney fees, 
found at 5 CFR 1201.37(a), implement only the two original authorities 
provided by the CSRA and the additional authority provided by the WPA 
in 1989. There is a need, therefore, to amend the Board's rules 
governing requests for attorney fees to incorporate the new statutory 
authorities and, in view of the overlap among certain of the 
authorities for attorney fee awards, to provide guidance to parties and 
their representatives as to how the Board will apply its various 
authorities for attorney fee awards to the cases it adjudicates.
    In the course of its review of the rules governing requests for 
attorney fees, the Board also has determined that two changes should be 
made in its existing rules. The current time limit for filing a request 
for attorney fees--30 days after an initial decision becomes final or 
35 days after a final Board decision--is deleted and replaced by a 
requirement that such a request be filed as soon as possible after 
there is a final Board decision but no later than 60 days after the 
date on which a decision becomes final. This change is intended to 
reduce the need for litigation over late-filed attorney fee requests. 
The evidentiary requirements for attorney fee requests are amended, in 
accordance with the Board's established case law, to incorporate the 
requirement for evidence of an established attorney-client 
relationship. Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 427 n.9 
(1980). See Stewart v. Office of Personnel Management, 70 M.S.P.R. 544 
(1996).

Awards of Consequential Damages

    Public Law 103-424 also gave the Board new authority--in two kinds 
of cases only--to order payment of medical costs, travel expenses, and 
any other reasonable and foreseeable consequential damages incurred by 
an employee, former employee, or applicant. This authority applies only 
where the Board orders corrective action in a Special Counsel case 
brought under 5 U.S.C. 1214 (see 5 U.S.C. 1214(g)(2)) or in an IRA or 
other whistleblower appeal to which 5 U.S.C. 1221 applies (see 5 U.S.C. 
1221(g)(1)(A)(ii)).
    Because the Board has no existing rules governing awards of 
consequential damages, there is a need to amend its rules of practice 
and procedure to set forth the statutory authorities for it to make 
such awards and to prescribe procedural rules for making requests for 
such awards. In these new rules, the Board uses the term 
``consequential damages'' to encompass what the statutory provisions at 
5 U.S.C. 1214(g)(2) and 5 U.S.C. 1221(g)(1)(A)(ii) describe as 
``medical costs incurred, travel expenses, and any other reasonable and 
foreseeable consequential damages.'' The legislative history of Public 
Law 103-424 provides no further guidance as to the kinds of costs and 
expenses intended to be covered by these provisions. The Board, 
therefore, will interpret these provisions through its adjudication of 
individual cases.
    The Board has had little opportunity to date to address these new 
provisions for awards of consequential damages in actual cases. Its 
principal ruling thus far is that the consequential damages provisions 
of Public Law 103-424 may not be applied retroactively and, therefore, 
do not apply where the contested personnel action took place before the 
law's effective date, October 29, 1994. See Roman v. Department of the 
Army, 72 M.S.P.R. 409 (1996). In Roman, the Board also ruled that while 
the appellant's claimed mileage costs could not be awarded as 
consequential damages, because of the Board's ruling against 
retroactive application, they could be awarded as ``costs'' under the 
WPA provision for attorney fees and costs (formerly 5 U.S.C. 
1221(g)(1), now 5 U.S.C. 1221(g)(2)). The Board declined in Roman to 
decide what the term ``travel expenses'' means in the new consequential 
damages provisions.
    Despite the paucity of case law dealing with consequential damages, 
the Board has determined that its procedural rules for adjudication of 
requests for consequential damages should be consistent with those 
governing requests for compensatory damages. These rules are discussed 
below under ``Awards of Compensatory Damages.''

Awards of Compensatory Damages

    Section 102 of the Civil Rights Act of 1991, Public Law 102-166, 
authorizes an award of compensatory damages where there is a finding of 
intentional discrimination or a failure to provide reasonable 
accommodation, where such discrimination is prohibited by the Civil 
Rights Act of 1964, the Rehabilitation Act of 1973, or the Americans 
with Disabilities Act of 1990 (42 U.S.C. 1981a). In late 1992, the 
Equal Employment Opportunity Commission ruled that compensatory damages 
under the Civil Rights Act of 1991 are available to Federal employees 
in administrative proceedings (Jackson v. U.S. Postal Service, EEOC 
Appeal No. 01923399, Nov. 12, 1992).
    The Board issued its first decision on a request for compensatory 
damages in July of 1994. Hocker v. Department of Transportation, 63 
M.S.P.R. 497, 503-508 (1994), aff'd. 64 F.3d 676 (Fed. Cir. 1995) 
(table), cert. denied, 116 U.S. 918, 116 S.Ct. 918 (1996). Citing the 
EEOC ruling in Jackson, the Board ruled in Hocker that compensatory 
damages are available in MSPB proceedings where there is a finding of 
discrimination to which section 102 of the Civil Rights Act of 1991 
applies. The Board further ruled that it would not apply the 
compensatory damages provision of the Civil Rights Act of 1991 
retroactively to cases pending on the effective date of the Act, 
November 21, 1991. In addition, the Board stated that a request for 
compensatory damages may not be made for the first time in a petition 
for enforcement of a Board order (unless the non-compliance with the 
order constituted a separate, intentional act of discrimination) but 
must be made in the proceeding on the merits before the judge.

[[Page 17043]]

    In Yates v. U.S. Postal Service, 70 M.S.P.R. 170, 179-180 (1996), 
the Board distinguished the Hocker requirement that a request for 
compensatory damages must be made in the proceeding on the merits 
before the judge as dictum, ruling that an appellant who prevails on a 
finding of discrimination to which section 102 of the Civil Rights Act 
of 1991 applies has a right to seek compensatory damages. Finding that 
the appellant was not notified of his right to seek compensatory 
damages or the time for doing so, the Board gave the appellant 30 days 
from the date of the decision to file a request for compensatory 
damages with the judge. (Accord Spencer v. Department of the Navy, MSPB 
Docket No. DC-0752-96-0116-I-1, Jan. 3, 1997, and Callagan v. 
Department of Agriculture, MSPB Docket No. DE-0752-95-0588-I-2, Feb. 
26, 1997).
    Other key cases in which the Board has ruled on compensatory 
damages issues include Schultz v. U.S. Postal Service, 70 M.S.P.R. 633, 
639-640 (1996) (remand to judge for adjudication of compensatory 
damages claim necessary where appellant made claim early on in the 
appeal), and Currier v. U.S. Postal Service, 72 M.S.P.R. 191, 195-198 
(1996) (where appellant has made a nonfrivolous claim of discrimination 
to which section 102 of the Civil Rights Act of 1991 applies but has 
not specifically made a claim for compensatory damages, judge should 
afford opportunity to make such a claim before dismissing appeal as 
moot; judge may bifurcate proceeding by deferring a decision on a claim 
for compensatory damages for a separate proceeding after there is a 
final decision in the merits proceeding).
    Because the Board has no existing rules governing awards of 
compensatory damages, there is a need to amend its rules of practice 
and procedure to set forth the statutory authority for it to make such 
awards and to prescribe procedural rules for making requests for such 
awards. Based on its rulings in cases involving compensatory damages to 
date, the Board in these rules calls for a request for compensatory 
damages to be made as early as possible in a Board proceeding before an 
administrative judge or administrative law judge. Such a request is to 
be made no later than the time the first pleading is filed with the 
three-member Board. In permitting a request for compensatory damages to 
be made as late as the time of the first filing with the three-member 
Board, the Board is following the lead of the EEOC (the lead agency in 
interpreting compensatory damages provisions). Hocker, supra. See 
Thorne v. Department of Education, EEOC No. 01922524, slip op. at 3 
(Dec. 23, 1993); Square v. Department of Veterans Affairs, EEOC No. 
0193053, slip op. at 5 (Aug. 25, 1994); and Simpkins v. U.S. Postal 
Service, EEOC No. 01942339, slip op. at 2-3 (Sep. 28, 1995).
    The rules permit the judge or the Board, as applicable, to waive 
the time limit for good cause shown. The rules also permit the judge or 
the Board, as applicable, to decide a request for compensatory damages 
in the merits proceeding or to defer it for an addendum proceeding.

Amendment to Choice of Procedures

    Section 9(b) of Public Law 103-424 amended 5 U.S.C. 7121, 
``Grievance procedures,'' by adding a new subsection (g) which imposes 
a new choice of procedures requirement. Where an employee is subject to 
a personnel action that is appealable to MSPB, and the employee may 
grieve the action under a negotiated grievance procedure (NGP), and the 
employee alleges that the action was the result of a prohibited 
personnel practice--other than discrimination--that may form the basis 
of a complaint to the Special Counsel, the employee may elect not more 
than one of the following remedies: an appeal to MSPB, a grievance 
under the NGP, or a corrective action complaint under subchapters II 
(Special Counsel actions) and III (IRA appeals) of chapter 12 of title 
5. The choice among these three procedures is deemed to have been made 
when the employee timely files an appeal with MSPB, a written grievance 
under the NGP, or a complaint with the Special Counsel.
    The Board's existing rules at 5 CFR 1201.3(c) reflect the choice of 
procedures requirements of 5 U.S.C. 7121 prior to its amendment by 
Public Law 103-424. Those rules require a choice between an MSPB appeal 
and a grievance under the NGP where there is an allegation of 
discrimination (see 5 U.S.C. 7121(d)) or where the personnel action is 
a performance-based action under chapter 43 of title 5 or an adverse 
action under chapter 75 of title 5 (see 5 U.S.C. 7121(e)). There is a 
need, therefore, for the Board to amend its rules at 5 CFR 1201.3(c) to 
incorporate the new choice of procedures requirement in 5 U.S.C. 
7121(g).
    Under 5 U.S.C. 7121 as amended by Public Law 103-424, an employee 
who chooses to seek corrective action from the Special Counsel could 
not also appeal to MSPB--unless the prohibited personnel practice 
complained of is an action based on whistleblowing, in which case the 
employee could file an IRA appeal with MSPB after exhausting the 
procedures of the Office of Special Counsel. (See Briley v. National 
Archives and Records Administration, 71 M.S.P.R. 211, 224-226 (1996).)

Technical Amendment

    The Equal Employment Opportunity Commission's regulations governing 
discrimination complaints filed by Federal employees, formerly found at 
29 CFR part 1613, are now found at 29 CFR part 1614. The Board, 
therefore, is amending its mixed case rules at 5 CFR 1201.163 to change 
all references to ``29 CFR part 1613'' to read ``29 CFR part 1614.''

Section-by-Section Guide to Changes

    The following paragraphs constitute a section-by-section guide to 
the changes made in 5 CFR part 1201 by this amendment.
    (1-3) The authority citation for part 1201 is amended to include 
the authority for the Board to issue implementing regulations under 
USERRA, 38 U.S.C. 4331.
    (4) Section 1201.3(b), concerning appeals governed by part 1209, is 
amended to include a statement that the attorney fee and consequential 
damages provisions of subpart H apply to such appeals.
    (5) Section 1201.3(c)(1) is amended to incorporate the choice of 
procedures requirements of 5 U.S.C. 7121(g), as discussed above under 
``Amendment to Choice of Procedures.''
    (6) Section 1201.3(c)(2) is amended to incorporate the provisions 
of 5 U.S.C. 7121(g) regarding when a choice of procedures is deemed to 
have been made, as discussed above under ``Amendment to Choice of 
Procedures.''
    (7) Section 1201.37 is amended to change the title from ``Fees'' to 
``Witness fees;'' to remove paragraph (a)--which is moved to the new 
subpart H (with modifications)--in its entirety; and to redesignate the 
remaining paragraphs.
    (8) Section 1201.55(b), concerning objections to motions, is 
amended to remove the reference to a motion for attorney fees; new 
section 1201.203(d) in subpart H will now apply to such objections.
    (9) Section 1201.111(b)(6), concerning the statement in a judge's 
initial decision of any further processes available, is amended to 
state that such further processes include, as appropriate, a motion for 
attorney fees under new section 1201.203 of subpart H, and, where a 
claim for consequential damages or compensatory damages has been 
deferred for an addendum proceeding, the right to such a

[[Page 17044]]

proceeding, with the time to be established by the judge.
    (10) Section 1201.112(a)(3), concerning a judge's retaining 
jurisdiction to rule on a request for attorney fees after isssuing an 
initial decision, is amended to also authorize the judge to retain 
jurisdiction to rule on a request for consequential damages or 
compensatory damages under subpart H.
    (11) Section 1201.121, concerning actions brought by the Special 
Counsel, is amended by revising the section title to read ``Scope of 
jurisdiction; application of subparts B, F, and H.''
    (12) Section 1201.121 is further amended by revising the heading of 
paragraph (b) to read ``Application of subparts B, F, and H;'' by 
revising paragraph (b) to state that all provisions of subpart B of 
part 1201--not just the hearing procedures--apply to Special Counsel 
cases, except as otherwise expressly provided by this subpart; and by 
including in the revised paragraph (b) cross-references to subpart F 
for enforcement proceedings and to subpart H for requests for attorney 
fees, consequential damages, and compensatory damages.
    (13) Section 1201.131, concerning procedures for actions against 
administrative law judges, is amended by revising it to state that all 
provisions of subpart B of part 1201--not just the hearing procedures--
apply to actions against administrative law judges, except as otherwise 
expressly provided by this subpart, and by including cross-references 
to subpart F for enforcement proceedings and to subpart H for requests 
for attorney fees and compensatory damages.
    (14) Section 1201.163, concerning mixed case procedures, is amended 
at paragraphs (a) and (c) by removing ``29 CFR part 1613'' each place 
it appears and by replacing it with ``29 CFR part 1614.''
    (15) A new subpart H is added after subpart G of part 1201. The 
following is a section-by-section guide to the provisions of subpart H:
    Section 1201.201 states that the purpose of subpart H is to 
prescribe procedures for awards of attorney fees (plus costs, expert 
witness fees, and litigation expenses, where applicable), consequential 
damages, and compensatory damages in MSPB cases. It provides a general 
overview of the Board's statutory authorities to make such awards.
    Section 1201.202(a) provides a ``roadmap'' to each statutory 
authority for the Board to award attorney fees (plus costs, expert 
witness fees, and litigation expenses, where applicable) and describes 
the kind of case or cases with which each authority is associated. 
Section 1201.202(b) sets forth the Board's statutory authorities for 
awards of consequential damages and describes the kind of case with 
which each authority is associated. Section 1201.202(c) sets forth the 
Board's statutory authority to award compensatory damages and 
incorporates the definition of such damages from 42 U.S.C. 1981a.
    Section 1201.203 prescribes procedures for requests for attorney 
fees. The procedures are essentially the same as in the Board's 
existing rules at 5 CFR 1201.37(a)(3), with some modifications. The 
time limit for filing a motion for attorney fees has been changed to 
``as soon as possible after a final decision of the Board but no later 
than 60 days after the date on which a decision becomes final.'' A 
requirement for submission of evidence of ``an established attorney-
client relationship'' has been incorporated, reflecting the Board's 
established case law. Certain changes in wording have been made to 
clarify that the provisions apply to MSPB cases generally--not just to 
appeals, the requirements for an addendum proceeding are set forth more 
fully, and a definition of a ``proceeding on the merits'' has been 
added.
    Section 1201.204 prescribes procedures for requests for 
consequential damages and compensatory damages. Paragraph (a)(1) calls 
for such requests to be made as early as possible in the merits 
proceeding before an administrative judge or administrative law judge. 
Such a request may be made no later than the time the first pleading is 
filed with the three-member Board. Paragraph (a)(2) permits the judge 
or the Board, as applicable, to waive the time limit for filing a 
request for consequential damages or compensatory damages for good 
cause shown. Paragraph (b) sets forth the service requirements.
    Paragraph (c) of section 1201.204 authorizes the judge or the 
Board, as applicable, to decide a request for consequential damages or 
compensatory damages either in the merits proceeding or in an addendum 
proceeding after there is a final decision on the merits. Paragraph (d) 
requires the judge, where a decision on a request for consequential 
damages or compensatory damages has been deferred for an addendum 
proceeding, to schedule that proceeding after there is a final Board 
decision. Paragraph (e) permits the Board, at its discretion, to order 
that an addendum proceeding to decide a request for consequential 
damages or compensatory damages be held prior to the issuance of a 
final decision on the merits.
    Paragraph (f) of section 1201.204 provides for the application of 
appropriate provisions of subpart B in an addendum proceeding to decide 
a request for consequential damages or compensatory damages, and 
paragraph (g) provides for a petition for review of the judge's initial 
decision by the Board and for Board review of a recommended decision of 
an administrative law judge. Paragraph (h) provides for EEOC review of 
a final Board decision on a request for compensatory damages (but not 
consequential damages) in accordance with subpart E of part 1201.
    Section 1201.205 provides that a final Board decision issued under 
subpart H--on a request for attorney fees, consequential damages, or 
compensatory damages--is subject to judicial review in accordance with 
5 U.S.C. 7703.

Citations

    All citations to MSPB decisions are to West Publishing Company's 
Merit Systems Protection Board Reporter (M.S.P.R.). The citation to a 
D.C. Circuit decision is to West Publishing Company's Federal Reporter, 
second series (F.2d). These publications are available in many law 
libraries and some public libraries. They are also available in the 
MSPB Library, 1120 Vermont Avenue, NW, 8th Floor, Washington, DC, which 
is open to the public between 1:00 and 5:00 PM, Monday through Friday 
(excluding Federal holidays).
    The Board is publishing this rule as an interim rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

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

PART 1201--[AMENDED]

    1-3. The authority citation for part 1201 is revised to read as 
follows:

    Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless 
otherwise noted.

    4. Section 1201.3 is amended in paragraph (b) by adding a sentence 
to the end of the paragraph to read as follows:


Sec. 1201.3  Appellate jurisdiction.

* * * * *
    (b) * * * The provisions of subpart H of this part regarding awards 
of attorney fees and consequential damages under 5

[[Page 17045]]

U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.
* * * * *
    5. Section 1201.3 is amended by revising paragraph (c)(1)(ii) and 
adding paragraph (c)(1)(iii) to read as follows:
* * * * *
    (c) * * *
    (1) * * *
    (ii) An appealable action involving a prohibited personnel practice 
other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under 
not more than one of the following procedures:
    (A) The Board's appellate procedures;
    (B) The negotiated grievance procedures; or
    (C) The procedures for seeking corrective action from the Special 
Counsel under subchapters II and III of chapter 12 of title 5 of the 
United States Code.
    (iii) Except for actions involving discrimination under 5 U.S.C. 
2302(b)(1) or any other prohibited personnel practice, any appealable 
action that is excluded from the application of the negotiated 
grievance procedures may be raised only under the Board's appellate 
procedures.
* * * * *
    6. Section 1201.3 is further amended at paragraph (c) by adding a 
sentence to the end of paragraph (c)(2) to read as follows:
* * * * *
    (c) * * *
    (2) * * * When an employee has the choice of pursuing an appealable 
action involving a prohibited personnel practice other than 
discrimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph 
(c)(1)(ii) of this section, the Board considers the choice among those 
procedures to have been made when the employee timely files an appeal 
with the Board, timely files a written grievance under the negotiated 
grievance procedure, or seeks corrective action from the Special 
Counsel by making an allegation under 5 U.S.C. 1214(a)(1), whichever 
event occurs first.
* * * * *


Sec. 1201.37  [Amended]

    7. Section 1201.37 is amended by revising the heading to read 
``Witness fees''; by removing paragraph (a) in its entirety; by 
removing the heading of paragraph (b), and by redesignating paragraphs 
(b)(1), (b)(2), and (b)(3) as paragraphs (a), (b), and (c), 
respectively.


Sec. 1201.55  [Amended]

    8. Section 1201.55 is amended at paragraph (b) by removing the 
phrase, ``and unless the motion is one for payment of attorney fees 
under Sec. 1201.37(a) of this part,'' in the first sentence.


Sec. 1201.111  [Amended]

    9. Section 1201.111 is amended by removing the phrase, ``and a 
petition for judicial review.'' in paragraph (b)(6) and by adding in 
its place the phrase ``a petition for judicial review, a motion for 
attorney fees under section 1201.203 of this part, and where a claim 
for consequential damages or compensatory damages has been raised, the 
right to an addendum proceeding to determine consequential damages or 
compensatory damages, with the time to be established by the judge.''.


Sec. 1201.112  [Amended]

    10. Section 1201.112 is amended by removing the semi-colon at the 
end of paragraph (a)(3) and by adding in its place the phrase ``, 
consequential damages, or compensatory damages under subpart H of this 
part;''.
    11. Section 1201.121 is amended by revising the heading to read as 
follows:


Sec. 1201.121  Scope of jurisdiction; application of subparts B, F, and 
H.

    12. Section 1201.121 is further amended by revising paragraph (b) 
to read as follows:
* * * * *
    (b) Application of subparts B, F, and H. Except as otherwise 
expressly provided by this subpart, the regulations in subpart B of 
this part apply to complaints or requests filed by the Special Counsel 
under this subpart. Subpart F of this part applies to enforcement 
proceedings in connection with Special Counsel complaints or requests 
decided under this subpart. Subpart H of this part applies to requests 
for attorney fees, consequential damages, or compensatory damages in 
connection with Special Counsel complaints decided under this subpart.
    13. Section 1201.131 is revised to read as follows:


Sec. 1201.131  Procedures.

    When an agency proposes an action against an administrative law 
judge, the regulations in subpart B of this part apply, unless these 
provisions expressly provide otherwise. Initial and subsequent 
pleadings, however, must be filed and served in accordance with 
Sec. 1201.122 of this subpart. Subpart F of this part applies to 
enforcement proceedings in connection with actions against 
administrative law judges decided under this subpart. Subpart H of this 
part applies to requests for attorney fees or compensatory damages in 
connection with actions against administrative law judges decided under 
this subpart.


Sec. 1201.163  [Amended]

    14. Section 1201.163 is amended at paragraphs (a) and (c) by 
removing ``29 CFR part 1613'' each place it appears and by adding in 
its place ``29 CFR part 1614''.
    15. Part 1201 is amended by adding new subpart H to read as 
follows:
Subpart H--Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable), Consequential Damages, and 
Compensatory Damages
Sec.
1201.201  Statement of purpose.
1201.202  Authority for awards.
1201.203  Proceedings for attorney fees.
1201.204  Proceedings for consequential damages and compensatory 
damages.
1201.205  Judicial review.

Subpart H--Attorney Fees (Plus Costs, Expert Witness Fees, and 
Litigation Expenses, Where Applicable), Consequential Damages, and 
Compensatory Damages


Sec. 1201.201  Statement of purpose.

    (a) This subpart governs Board proceedings for awards of attorney 
fees (plus costs, expert witness fees, and litigation expenses, where 
applicable), consequential damages, and compensatory damages.
    (b) There are seven statutory provisions covering attorney fee 
awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most 
requests for attorney fees will be governed by Sec. 1201.202(a)(1). 
There are, however, other attorney fee provisions that apply only to 
specific kinds of cases. For example, Sec. 1201.202(a)(4) applies only 
to certain whistleblower appeals. Sections 1201.202 (a)(5) and (a)(6) 
apply only to corrective and disciplinary action cases brought by the 
Special Counsel. Section 1201.202(a)(7) applies only to appeals brought 
under the Uniformed Services Employment and Reemployment Rights Act.
    (c) An award of consequential damages is authorized in only two 
situations: Where the Board orders corrective action in a whistleblower 
appeal under 5 U.S.C. 1221, and where the Board orders corrective 
action in a Special Counsel complaint under 5 U.S.C. 1214. 
Consequential damages include such items as medical costs and travel 
expenses, and other costs as determined by the Board through case law.
    (d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an 
award of compensatory damages to a prevailing party who is found to 
have been intentionally discriminated against based on race, color, 
religion, sex,

[[Page 17046]]

national origin, or disability. Compensatory damages include pecuniary 
losses, future pecuniary losses, and nonpecuniary losses, such as 
emotional pain, suffering, inconvenience, mental anguish, and loss of 
enjoyment of life.


Sec. 1201.202  Authority for awards.

    (a) Awards of attorney fees (plus costs, expert witness fees, and 
litigation expenses, where applicable). The Board may order payment of:
    (1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the 
appellant or respondent is the prevailing party in an appeal under 5 
U.S.C. 7701 or an agency action against an administrative law judge 
under 5 U.S.C. 7521, and an award is warranted in the interest of 
justice;
    (2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the 
appellant or respondent is the prevailing party in an appeal under 5 
U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C. 
7121(d), or an agency action against an administrative law judge under 
5 U.S.C. 7521, and the decision is based on a finding of discrimination 
prohibited under 5 U.S.C. 2302(b)(1);
    (3) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(2), 
where the appellant is the prevailing party in an appeal under 5 U.S.C. 
7701 and the Board's decision is based on a finding of a prohibited 
personnel practice;
    (4) Attorney fees and costs, as authorized by 5 U.S.C. 
1221(g)(1)(B), where the Board orders corrective action in a 
whistleblower appeal to which 5 U.S.C. 1221 applies;
    (5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2), where the 
Board orders corrective action in a Special Counsel complaint under 5 
U.S.C. 1214;
    (6) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the 
respondent is the prevailing party in a Special Counsel complaint for 
disciplinary action under 5 U.S.C. 1215; and
    (7) Attorney fees, expert witness fees, and litigation expenses, as 
authorized by the Uniformed Services Employment and Reemployment Rights 
Act, 38 U.S.C. 4324(c)(4).
    (b) Awards of consequential damages. The Board may order payment of 
consequential damages, including medical costs incurred, travel 
expenses, and any other reasonable and foreseeable consequential 
damages:
    (1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board 
orders corrective action in a whistleblower appeal to which 5 U.S.C. 
1221 applies; and
    (2) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders 
corrective action in a Special Counsel complaint under 5 U.S.C. 1214.
    (c) Awards of compensatory damages. The Board may order payment of 
compensatory damages, as authorized by section 102 of the Civil Rights 
Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful 
intentional discrimination but not on an employment practice that is 
unlawful because of its disparate impact under the Civil Rights Act of 
1964, the Rehabilitation Act of 1973, or the Americans with 
Disabilities Act of 1990. Compensatory damages include pecuniary 
losses, future pecuniary losses, and nonpecuniary losses such as 
emotional pain, suffering, inconvenience, mental anguish, and loss of 
enjoyment of life.


Sec. 1201.203  Proceedings for attorney fees.

    (a) Form and content of request. A request for attorney fees must 
be made by motion, must state why the appellant or respondent believes 
he or she is entitled to an award under the applicable statutory 
standard, and must be supported by evidence substantiating the amount 
of the request. Evidence supporting a motion for attorney fees must 
include at a minimum:
    (1) Accurate and current time records;
    (2) A copy of the terms of the fee agreement (if any);
    (3) A statement of the attorney's customary billing rate for 
similar work if the attorney has a billing practice or, in the absence 
of that practice, other evidence of the prevailing community rate that 
will establish a market value for the attorney's services; and
    (4) An established attorney-client relationship.
    (b) Addendum proceeding. (1) A request for attorney fees will be 
decided in an addendum proceeding before a judge after issuance of a 
final decision in the proceeding on the merits, including a decision 
accepting the parties' settlement of the case.
    (2) For purposes of this subpart, a ``proceeding on the merits'' is 
a proceeding to decide an appeal of an agency action under 5 U.S.C. 
section 1221 or 7701, an appeal under 38 U.S.C. 4324, a request to 
review an arbitration decision under 5 U.S.C. 7121(d), a Special 
Counsel complaint under 5 U.S.C. section 1214 or 1215, or an agency 
action against an administrative law judge under 5 U.S.C. 7521.
    (3) The final decision in the proceeding on the merits may be an 
initial decision of a judge that has become final under section 
1201.113 of this part or a final decision of the Board.
    (c) Place of filing. Where the decision in the proceeding on the 
merits was issued by a judge in a MSPB regional or field office, a 
motion for attorney fees must be filed with the regional or field 
office that issued the decision. Where the decision in the proceeding 
on the merits was issued by the Board, a motion for attorney fees must 
be filed with the Clerk of the Board.
    (d) Time of filing; service. A motion for attorney fees must be 
filed as soon as possible after a final decision of the Board but no 
later than 60 days after the date on which a decision becomes final. A 
copy of the motion must be served on the other parties or their 
representatives at the time of filing. A party may file a pleading 
responding to the motion within the time limit established by the 
judge.
    (e) Hearing; applicability of subpart B. The judge may hold a 
hearing on a motion for attorney fees and may apply appropriate 
provisions of subpart B of this part to the addendum proceeding.
    (f) Review by the Board. The judge will issue an initial decision 
in the addendum proceeding, which shall be subject to the provisions 
for a petition for review by the Board under subpart C of this part.


Sec. 1201.204  Proceedings for consequential damages and compensatory 
damages.

    (a) Time for making request. (1) In all instances where a request 
for consequential damages or compensatory damages is made, it should be 
made as early as possible in a Board proceeding before an 
administrative judge or administrative law judge but no later than the 
first pleading filed with the three-member Board.
    (2) The judge or the Board, as applicable, may waive the time limit 
for making a request for consequential damages or compensatory damages 
for good cause shown.
    (b) Service. A copy of a request for consequential damages or 
compensatory damages must be served on the other parties or their 
representatives when the request is made. A party may file a pleading 
responding to the request within the time limit established by the 
judge or the Board, as applicable.
    (c) Discretion to decide in merits proceeding or addendum 
proceeding. When a request for consequential damages or compensatory 
damages is made, the judge or the Board, as applicable, may:
    (1) Consider the request during the proceeding on the merits and 
rule on the request in the decision on the merits if the judge or the 
Board, as applicable, determines that such action is in the interest of 
the parties and will promote efficiency and economy in adjudication; or

[[Page 17047]]

    (2) Defer a decision on the request for an addendum proceeding. 
Except as provided in paragraph (e) of this section, the addendum 
proceeding will be held after issuance of a final decision in the 
proceeding on the merits. As used in this section, a ``final decision 
in the proceeding on the merits'' has the same meaning as in 
Sec. 1201.203(b) of this part.
    (d) Initiation of addendum proceeding. If a decision on a request 
for consequential damages or compensatory damages has been deferred for 
an addendum proceeding, the judge will schedule the proceeding after 
issuance of an initial decision that becomes final or a final Board 
decision.
    (e) Discretion of Board to order addendum proceeding. 
Notwithstanding paragraphs (a) through (d) of this section, the Board, 
at its discretion, may order that an addendum proceeding to decide a 
request for consequential damages or compensatory damages be held prior 
to the issuance of a final decision on the merits. If the Board 
exercises this discretion, the Board order will provide for initiation 
of the addendum proceeding.
    (f) Hearing; applicability of subpart B. The judge may hold a 
hearing on a request for consequential damages or compensatory damages 
and may apply appropriate provisions of subpart B of this part to the 
addendum proceeding.
    (g) Review by the Board. (1) An initial decision issued by a judge 
under this section, whether in accordance with paragraph (c)(1) of this 
section or in an addendum proceeding, shall be subject to the 
provisions for a petition for review by the Board under subpart C of 
this part.
    (2) A recommended decision issued by an administrative law judge in 
accordance with paragraph (c)(1) of this section shall be subject to 
the provisions of subpart D of this part.
    (h) EEOC review of decision on compensatory damages. A final 
decision of the Board on a request for compensatory damages pursuant to 
the Civil Rights Act of 1991 shall be subject to review by the Equal 
Employment Opportunity Commission as provided under subpart E of this 
part.


Sec. 1201.205  Judicial review.

    A final Board decision under this subpart is subject to judicial 
review as provided under 5 U.S.C. 7703.

    Dated: April 1, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-8643 Filed 4-8-97; 8:45 am]
BILLING CODE 7400-01-U