[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 59991-59992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29311]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / 
Rules and Regulations  

[[Page 59991]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Merit Systems Protection Board is amending its rules of 
practice and procedure to change its time limits for filing appeals and 
petitions for review of initial decisions issued by MSPB judges. The 
amendments to the time limits for filing appeals are intended to ensure 
that an appellant has a full 30 days to file after the event from which 
the time period begins to run. The amendment to the time limit for 
filing a petition for review is intended to ensure that a petitioner 
has a full 30 days to file after the date of receipt of the initial 
decision issued by the judge. The purpose of these amendments is to 
provide guidance to the parties to MSPB cases and their representatives 
regarding filing requirements. The Board is simultaneously amending its 
rules at 5 CFR part 1209 with respect to the time limits for filing 
whistleblower appeals.

EFFECTIVE DATE: November 6, 1997.

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

SUPPLEMENTARY INFORMATION: The Board is authorized by 5 U.S.C. 1204(h) 
to promulgate regulations to carry out its functions and has used this 
authority since its inception to prescribe time limits for filing 
appeals with the Board. Prior to this amendment, the regulation at 5 
CFR 1201.22(b), prescribing time limits for filing an appeal, required 
that an appeal of an agency action be filed no later than 30 days after 
the effective date of the action or, where the appeal is from a final 
or reconsideration decision that does not set an effective date, no 
later than 35 days after the date of issuance of the agency's decision. 
In establishing the 35-day time limit where the appeal is from a final 
or reconsideration decision that does not set an effective date, the 
Board, in effect, was providing the same 30-day time period for filing 
as in an appeal of an action with an effective date by allowing 5 
additional days after the date of issuance of the decision for it to be 
mailed and received.
    Where the 35-day time limit applies and there is a delay by the 
agency in mailing the decision after it is issued, and/or a delay by 
the U.S. Postal Service that results in more than 5 days elapsing 
between issuance of the decision and receipt by the appellant, an 
appellant could have less than 30 days to file an appeal with MSPB. 
Should an appellant not receive the agency's decision until after the 
35-day time period for filing has expired, any appeal may be dismissed 
as untimely.
    In order to ensure that each appellant, regardless of the nature of 
the action or decision being appealed, has a full 30 days to file after 
the event from which the time period begins to run, the Board is 
amending its regulation at 5 CFR 1201.22(b) to require that an appeal 
be filed no later than 30 days after the effective date, if any, of the 
action being appealed, or 30 days after the date of receipt of the 
agency's decision, whichever is later.
    The Board is making corresponding amendments to 5 CFR 1201.27(b), 
regarding the time limit for filing individual appeals after a judge 
has denied a request for hearing as a class appeal, and 5 CFR 
1201.154(a), regarding the time limit for filing an appeal in which 
discrimination is alleged (a mixed case appeal).
    Prior to this amendment, the regulation at 5 CFR 1201.114(d), 
prescribing the time limit for filing a petition for review of a 
judge's initial decision, required that the petition for review be 
filed with the Clerk of the Board within 35 days after the initial 
decision is issued. This regulation was based on the statutory 
requirement at 5 U.S.C. 7701(e)(1)(A) that a petition for review be 
filed no later than 30 days after the party's receipt of the initial 
decision. Again, the Board was allowing in its regulation an additional 
5 days from the date of issuance of the initial decision for mailing 
and receipt by the parties.
    To ensure that every party has a full 30 days from the date of 
receipt of an initial decision to file a petition for review of that 
decision, the Board is amending its regulation at 5 CFR 1201.114(d) to 
require that a petition for review be filed within 35 days after the 
initial decision is issued or, if the petitioner shows that the initial 
decision was received more than 5 days after the date of issuance, 
within 30 days after the date the petitioner received the initial 
decision. The Board is making conforming amendments to 5 CFR 
1201.113(a) and (d) by removing the references to a 35-day time limit 
for filing.
    The Board is not amending 5 CFR 1201.113 in the material that 
precedes paragraph (a), which states that the initial decision of the 
judge will become final 35 days after issuance. Where no petition for 
review of an initial decision is filed, and the Board does not reopen 
on its own motion, there must be a date certain when the case is closed 
and the initial decision becomes the final decision of the Board. Such 
a finality date is also needed, for example, to determine when the time 
starts running for the filing of a petition for review of a final Board 
decision in a mixed case by the Equal Employment Opportunity Commission 
under 5 U.S.C. 7702, a petition for judicial review of a final Board 
decision under 5 U.S.C. 7703, or a motion for attorney fees under 5 CFR 
1201.203(d).
    As a result of these amendments to the petition for review 
provisions, initial decisions issued by MSPB judges will continue to 
show a finality date, which will be the date 35 days after the date of 
issuance of the initial decision. That date, however, will no longer be 
the last day on which a petition for review can be filed if the 
petitioner can show that the initial decision was received more than 5 
days after the date it was issued. In that event, the time limit of 30 
days after the date of receipt will apply.
    The Board is making a corresponding amendment to the regulation at 
5 CFR 1201.154(d), regarding the time limit for filing a petition for 
review of a final decision on a grievance in which discrimination is 
alleged.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).

[[Page 59992]]

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

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


Sec. 1201.22  [Amended]

    2. Section 1201.22 is amended by revising paragraph (b) to read as 
follows:
* * * * *
    (b) Time of filing. An appeal must be filed no later than 30 days 
after the effective date, if any, of the action being appealed, or 30 
days after the date of receipt of the agency's decision, whichever is 
later. The time for filing is computed in accordance with Sec. 1201.23 
of this part. A response to an appeal must be filed within 20 days of 
the date of the Board's acknowledgment order.
* * * * *


Sec. 1201.27  [Amended]

    3. Section 1201.27 is amended at paragraph (b) by revising the 
second sentence to read as follows:
* * * * *
    (b) * * * If the judge denies the request, the appellants affected 
by the decision may file individual appeals within 30 days after the 
date of receipt of the decision denying the request to be heard as a 
class appeal. * * *
* * * * *


Sec. 1201.113  [Amended]

    4. Section 1201.113 is amended by revising paragraphs (a) and (d) 
to read as follows:
* * * * *
    (a) Exceptions. The initial decision will not become final if any 
party files a petition for review within the time limit for filing 
specified in Sec. 1201.114 of this part, or if the Board reopens the 
case on its own motion.
* * * * *
    (d) Extensions. The Board may extend the time limit for filing a 
petition for good cause shown as specified in Sec. 1201.114 of this 
part.
* * * * *


Sec. 1201.114  [Amended]

    5. Section 1201.114 is amended at paragraph (d) by revising the 
first sentence to read as follows:
* * * * *
    (d) * * * Any petition for review must be filed within 35 days 
after the date of issuance of the initial decision or, if the 
petitioner shows that the initial decision was received more than 5 
days after the date of issuance, within 30 days after the date the 
petitioner received the initial decision. * * *
* * * * *


Sec. 1201.154  [Amended]

    6. Section 1201.154 is amended by revising paragraph (a) and the 
first sentence of paragraph (d) to read as follows:
* * * * *
    (a) Where the appellant has been subject to an action appealable to 
the Board, he or she may either file a timely complaint of 
discrimination with the agency or file an appeal with the Board no 
later than 30 days after the effective date, if any, of the action 
being appealed, or 30 days after the date of receipt of the agency's 
decision on the appealable action, whichever is later.
* * * * *
    (d) If the appellant has filed a grievance with the agency under 
its negotiated grievance procedure in accordance with 5 U.S.C. 7121, he 
or she may ask the Board to review the final decision under 5 U.S.C. 
7702 within 35 days after the date of issuance of the decision or, if 
the appellant shows that the decision was received more than 5 days 
after the date of issuance, within 30 days after the date the appellant 
received the decision. * * *
* * * * *
    Dated: October 31, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-29311 Filed 11-5-97; 8:45 am]
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