[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Rules and Regulations]
[Pages 17047-17048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8644]


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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: Interim rule with request for comments.

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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.

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: Public Law 103-424, which reauthorized the 
Board and the Office of Special Counsel in October 1994, also included 
a number of provisions that affect cases involving prohibited personnel 
practices, especially actions based on whistleblowing. This amendment 
to the Board's rules at 5 CFR part 1209 reflects two of those 
provisions.

New and Amended Personnel Actions

    Section 5 of Public Law 103-424 amended 5 U.S.C. 2302(a)(2)(A), the 
list of personnel actions that may form the basis for a prohibited 
personnel practice, to: (1) add a new personnel action, ``a decision to 
order psychiatric testing or examination;'' and (2) replace the 
existing provision, ``any other significant change in duties or 
responsibilities which is inconsistent with the employee's salary or 
grade level,'' with an amended provision, ``any other significant 
change in duties, responsibilities, or working conditions.'' Because 
the Board's rules at 5 CFR 1209.4(a) incorporate the statutory list of 
personnel actions at 5 U.S.C. 2302(a)(2)(A), it is necessary to amend 
the Board's rules to reflect the changes made in the statutory 
provision by Public Law 103-424.
    The Board has ruled that these amendments to 5 U.S.C. 2302(a)(2)(A) 
may not be applied retroactively to cases pending on the effective date 
of the amendments, October 29, 1994, where the personnel action 
occurred prior to the effective date, because the amendments enlarge 
the category of conduct that may form the basis of a prohibited 
personnel practice. See Caddell v. Department of Justice, 66 M.S.P.R. 
347, 352-54 (1995), and Briley v. National Archives and Records 
Administration, 71 M.S.P.R. 211, 223-224 (1996).
    Referrals to the Special Counsel. Section 4(c) of Public Law 103-
424 amended 5 U.S.C. 1221(f) to add a new requirement that when the 
Board determines in a proceeding under section 1221 of title 5 
(governing individual right of action appeals and certain other 
whistleblower appeals) that a current Federal employee may have 
committed a prohibited personnel practice, the Board is to refer the 
matter to the Special Counsel for investigation and possible 
prosecution under 5 U.S.C. 1215. The Board began making such referrals 
to the Special Counsel soon after this provision took effect on October 
29, 1994. It is now amending its rules at 5 CFR part 1209 by adding a 
new subpart E to provide public notice that it is required to make such 
referrals.

[[Page 17048]]

Cross-Reference to Subpart H of Part 1201

    This amendment also includes a change to 5 CFR 1209.3, 
``Application of 5 CFR part 1201,'' to include a statement that 
requests for attorney fees and consequential damages in connection with 
appeals under part 1209 are governed by subpart H of part 1201.

Citations

    All citations to MSPB decisions are to West Publishing Company's 
Merit Systems Protection Board Reporter (M.S.P.R.). This publication is 
available in many law libraries and some public libraries. It is 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 1209

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1209 as follows:

PART 1209--[AMENDED]

    1-2. The authority citation for part 1209 continues to read as 
follows:

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

    3. Section 1209.3 is amended by adding at the end of the existing 
text the following sentence:


Sec. 1209.3  Application of 5 CFR part 1201.

    * * * The Board will apply the provisions of subpart H of part 1201 
regarding awards of attorney fees and consequential damages under 5 
U.S.C. 1221(g) to appeals governed by this part.
    4. Section 1209.4 is amended by removing ``or'' at the end of 
paragraph (a)(9), by redesignating paragraph (a)(10) as (a)(11) and 
revising it, and by adding a new paragraph (a)(10) to read as follows:


Sec. 1209.4  Definitions.

    (a) * * *
* * * * *
    (10) A decision to order psychiatric testing or examination; or
    (11) Any other significant change in duties, responsibilities, or 
working conditions.
* * * * *
    5. Part 1209 is amended by adding subpart E to read as follows:

Subpart E--Referrals to the Special Counsel


Sec. 1209.13  Referral of findings to the Special Counsel.

    When the Board determines in a proceeding under this part that 
there is reason to believe that a current Federal employee may have 
committed a prohibited personnel practice described at 5 U.S.C. 
2302(b)(8), the Board will refer the matter to the Special Counsel to 
investigate and take appropriate action under 5 U.S.C. 1215.

    Dated: April 1, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-8644 Filed 4-8-97; 8:45 am]
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