[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66813-66815]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33353]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 245 / Monday, December 22, 1997 / 
Rules and Regulations  

[[Page 66813]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim rule; 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 to implement provisions of 
the Uniformed Services Employment and Reemployment Rights Act of 1994 
(USERRA). The purpose of these amendments is to provide guidance to the 
parties to MSPB cases, and their representatives, on how to proceed in 
cases raising claims that an agency employer or the Office of Personnel 
Management (OPM) has not complied with a USERRA provision governing the 
employment and reemployment rights to which a person is entitled after 
service in the uniformed services.

DATES: Effective date December 22, 1997. Submit written comments on or 
before February 20, 1998.

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: The Uniformed Services Employment and 
Reemployment Rights Act of 1994, Pub. L. 103-353 (108 Stat. 3149), 
consists principally of a revision of chapter 43 of title 38 of the 
United States Code, ``Employment and Reemployment Rights of Members of 
the Uniformed Services.''
    Under USERRA, Federal employees have expanded employment and 
reemployment rights and benefits after service in the uniformed 
services, including a new statutory right to appeal USERRA violations 
to MSPB. Previously, a Federal employee had the right to appeal only an 
alleged failure to restore to duty, or improper restoration to duty, 
after military service, a right provided under OPM regulations (5 CFR 
part 353).
    USERRA provides new mechanisms for Federal employees to enforce 
their employment or reemployment rights. In addition to the right to 
appeal to MSPB, a Federal employee has the right to seek assistance 
from the Secretary of Labor, to file a complaint with the Secretary of 
Labor, and to request representation before MSPB by the Special Counsel 
if the Secretary of Labor is unable to resolve the complaint. 38 U.S.C. 
4321, 4322, and 4324.
    USERRA authorizes OPM and the agencies involved in enforcement of 
USERRA rights for Federal employees--the Department of Labor (DOL), 
Office of Special Counsel (OSC), and the Board--to promulgate 
regulations to carry out their functions under the Act. 38 U.S.C. 
4331(b)(2)(A).
    OPM has issued interim regulations, in the form of amendments to 5 
CFR parts 353, 870, and 890, to implement USERRA (60 FR 45650, 
September 1, 1995). As amended, part 353 includes separate MSPB appeal 
right provisions for USERRA appeals at 5 CFR 353.211 and for appeals 
involving restoration to duty after recovery from a compensable injury 
at 5 CFR 353.304.
    The Board is amending its regulation at 5 CFR 1201.3(a), describing 
appealable actions, to conform to this change by OPM. Section 
1201.3(a)(12) is amended to describe only restoration after recovery 
from a compensable injury and to conform the language to that in OPM's 
regulation at 5 CFR 353.304. USERRA actions are described in a new 
section 1201.3(a)(22), which includes citations to both the applicable 
enforcement provision of USERRA (38 U.S.C. 4324) and the OPM regulation 
at 5 CFR 353.211.
    In describing appealable USERRA actions in new section 
1201.3(a)(22), the Board has relied on the following provisions of the 
Act. The enforcement mechanisms for Federal employees under 38 U.S.C. 
4324 apply to an agency employer's or OPM's failure or refusal to 
comply with the provisions of chapter 43 of title 38. 38 U.S.C. 
4322(a)(2)(B). The Act prohibits discrimination against an employee on 
the basis of service in the uniformed services and prohibits acts of 
reprisal for exercising a right or seeking to enforce a protection 
under chapter 43 of title 38. 38 U.S.C. 4311. One kind of action 
related to the rights and benefits afforded by USERRA is specifically 
excluded from the enforcement mechanism--an ``action relating to 
benefits to be provided under the Thrift Savings Plan under title 5.'' 
38 U.S.C. 4322(f).
    USERRA does not prescribe specific procedures that the Board must 
apply to appeals brought under chapter 43 of title 38. The Board has 
determined that all USERRA cases should be processed under its 
appellate jurisdiction procedures and that its original jurisdiction 
procedures, contained in subpart D of part 1201, should not be applied 
to those USERRA appeals filed by the Special Counsel. Appeals involving 
restoration after military service that were authorized by OPM 
regulation have traditonally fallen under the Board's appellate 
jurisdiction. Congress was presumably aware of that practice, and 
nothing in USERRA or its legislative history suggests an intent that 
this practice be changed.
    Subpart B of part 1201 is amended at section 1201.2(a) to exclude 
USERRA appeals from the Special Counsel actions included under the 
Board's ``original jurisdiction,'' at section 1201.3(a) to add USERRA 
actions to the list of appealable actions as new paragraph (a)(22), and 
at section 1201.31 to add a specific provision in new paragraph (e) for 
representation of a person in a USERRA appeal by the Special Counsel. 
Subpart D of part 1201 is amended at sections 1201.121 and 1201.131 to 
exclude USERRA appeals specifically from the original jurisdiction 
procedures applying to corrective actions brought by the Special 
Counsel.
    USERRA does not establish a time limit for appealing to the Board, 
nor does it specifically prohibit the establishment of a time limit. 
Petersen v. Department of the Interior, 71 M.S.P.R. 227 (1996); Duncan 
v. U.S. Postal Service, 73 M.S.P.R. 86 (1997); Jasper v. U.S. Postal 
Service, 73 M.S.P.R. 367 (1997); Wright v.

[[Page 66814]]

Department of Veterans Affairs, 73 M.S.P.R. 453 (1997). 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. The Board is 
also authorized by 38 U.S.C. 4331(b)(2)(A) to promulgate regulations to 
carry out its functions under USERRA.
    The Act provides a person three opportunities to file an appeal 
with MSPB: (1) after the alleged violation, if the person does not file 
a complaint with DOL; (2) after DOL notifies the person that it cannot 
resolve the matter with the agency, if the person chooses not to have 
the matter referred to the Special Counsel; and (3) after being advised 
that the Special Counsel chooses not to represent the person in an 
appeal to MSPB. 38 U.S.C. 4324(b). If a matter is referred to the 
Special Counsel, the Special Counsel may file an appeal with MSPB. 38 
U.S.C. 4324(a)(2).
    Any filing time limit established by the Board by regulation must 
allow sufficient time for a person to explore his or her options, 
including possibly pursuing the matter with DOL and OSC, while not 
allowing the matter to become stale. The Board has ruled that if a 
person files a formal complaint with DOL, the DOL procedure must be 
exhausted before an appeal may be filed with MSPB. Petersen, 71 
M.S.P.R. at 233; Jasper, 73 M.S.P.R. at 370.
    The Board is amending its regulation at 5 CFR 1201.22(b), 
prescribing time limits for filing, to provide that a USERRA appeal may 
be filed directly with MSPB within 180 days of the alleged violation. 
If a person seeks assistance from DOL under 38 U.S.C. 4321 but does not 
file a formal complaint under 38 U.S.C. 4322(a), he or she may 
subsequently file an appeal with MSPB at any time during the 180-day 
period. If a person files a formal complaint with DOL under 38 U.S.C. 
4322(a) and receives notification from DOL that it has been unable to 
resolve the matter, he or she may subsequently file an appeal with MSPB 
within 30 days after receipt of the notification from DOL or within 180 
days of the alleged violation, whichever is later. If DOL refers a 
person's complaint to OSC under 38 U.S.C. 4322(a) and the person 
receives notification from the Special Counsel that OSC will not 
represent the person before MSPB, he or she may subsequently file an 
appeal with MSPB within 30 days after receipt of the notification from 
the Special Counsel or within 180 days of the alleged violation, 
whichever is later.
    This guarantees that a person will have at least six months from 
the time of an alleged violation of USERRA to file an appeal with MSPB. 
If a person files a formal complaint with DOL or seeks OSC 
representation, the time limit for filing with MSPB may be greater than 
six months.
    Where the Special Counsel chooses to represent a person in a USERRA 
appeal before MSPB, the Board has not set a time limit for filing. The 
intent is to allow the Special Counsel time to secure voluntary 
compliance before filing an appeal with MSPB. Because DOL will have 
already tried, and failed, to secure compliance by the agency, the 
Board expects that the Special Counsel will file an appeal with MSPB 
expeditiously where a matter cannot be resolved with the agency.
    In addition to the amendments with respect to USERRA discussed 
above, the Board is making several technical amendments to its 
regulation at 5 CFR 1201.3(a).
    The Board is publishing this rule as an interim rule pursuant to 5 
U.S.C. 1204(h) and 38 U.S.C. 4331.

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.

    2. Section 1201.2 is amended by revising paragraph (a) to read as 
follows:


Sec. 1201.2  Original jurisdiction.

* * * * *
    (a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 
1215, and 1216;
* * * * *
    3. Section 1201.3 is amended by revising paragraph (a)(12), by 
removing ``and'' at the end of paragraph (a)(19), by removing the 
period at the end of paragraph (a)(20) and adding a semi-colon in its 
place, by revising the citation in the parenthetical at the end of 
paragraph (a)(21) to read ``(22 U.S.C. 4011)'', by deleting the period 
at the end of paragraph (a)(21) and substituting ``; and'', and by 
adding a new paragraph (a)(22) to read as follows:


Sec. 1201.3  Appelate jurisdiction

    (a)* * *
    (12) Failure to restore, improper restoration of, or failure to 
return following a leave of absence an employee or former employee of 
an agency in the executive branch (including the U.S. Postal Service 
and the Postal Rate Commission) following partial or full recovery from 
a compensable injury (5 CFR 353.304);
* * * * *
    (22) Non-compliance by a Federal executive agency employer or the 
Office of Personnel Management with the provisions of chapter 43 of 
title 38 of the United States Code relating to the employment or 
reemployment rights or benefits to which a person is entitled after 
service in the uniformed services (38 U.S.C. 4324, 5 CFR 353.211), 
excluding any action related to benefits to be provided under the 
Thrift Savings Plan under title 5 of the United States Code (38 U.S.C. 
4322(f)).
* * * * *
    4. Section 1201.22 is amended by redesignating the text of 
paragraph (b) as paragraph (b)(1), by revising the first sentence of 
paragraph (b)(1) and by adding a new paragraph (b)(2) to read as 
follows:


Sec. 1201.22  Filing an appeal and responses to appeals.

* * * * *
    (b) * * * (1) Except as provided in paragraph (b)(2) of this 
section, 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. * * *
    (2) (i) Where a person alleges non-compliance with the provisions 
of chapter 43 of title 38 of the United States Code relating to the 
employment or reemployment rights or benefits to which a person is 
entitled after service in the uniformed services (see paragraph (a)(22) 
of Sec. 1201.3 of this part), he or she may file an appeal directly 
with the Board within 180 days after the alleged act or incidence of 
non-compliance.
    (ii) Where a person seeks assistance from the Secretary of Labor 
under 38 U.S.C. 4321 but does not file a complaint under 38 U.S.C. 
4322(a), he or she may file an appeal directly with the Board within 
180 days after the alleged act or incidence of non-compliance.
    (iii) Where a person files a complaint with the Secretary of Labor 
under 38 U.S.C. 4322(a) and receives notification under 38 U.S.C. 
4322(e) that the Secretary has been unable to resolve the matter, he or 
she may subsequently file an appeal with the Board within 30 days after 
the date of receipt of the Secretary's notification or within 180 days 
after the alleged act or incidence of non-compliance, whichever is 
later. A

[[Page 66815]]

copy of the Secretary's notification must be submitted with the appeal.
    (iv) Where the Secretary of Labor refers a person's complaint to 
the Special Counsel under 38 U.S.C. 4322(a) and the person receives 
notification that the Special Counsel declines to represent the person 
in an appeal to the Board, he or she may subsequently file an appeal 
with the Board within 30 days after the date of receipt of the Special 
Counsel's notification or within 180 days after the alleged act or 
incidence of non-compliance, whichever is later. A copy of the Special 
Counsel's notification must be submitted with the appeal.
    (v) Where the Secretary of Labor refers a person's complaint to the 
Special Counsel under 38 U.S.C. 4322(a) and the Special Counsel agrees 
to represent the person in an appeal to the Board, the Special Counsel 
may file an appeal with the Board at any time thereafter.
* * * * *
    5. Section 1201.31 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 1201.31  Representatives.

* * * * *
    (e) The Special Counsel may represent a person in an appeal 
alleging non-compliance with the provisions of chapter 43 of title 38 
of the United States Code relating to the employment or reemployment 
rights or benefits to which a person is entitled after service in the 
uniformed services (see paragraph (a)(22) of Sec. 1201.3 of this part 
and 38 U.S.C. 4324). In such an appeal, a copy of any written request 
by the person to the Secretary of Labor that the matter be referred to 
the Special Counsel for litigation before the Board will be accepted as 
the written designation of representative required by paragraph (a) of 
this section.
    6. Section 1201.121 is amended by adding a new paragraph (c) to 
read as follows:


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

* * * * *
    (c) The provisions of this subpart do not apply to appeals alleging 
non-compliance with the provisions of chapter 43 of title 38 of the 
United States Code relating to the employment or reemployment rights or 
benefits to which a person is entitled after service in the uniformed 
services, in which the Special Counsel appears as the designated 
representative of the appellant. Such appeals are governed by subpart B 
of this part.


Sec. 1201.131  [Amended]

    7. Section 1201.131 is amended at paragraph (a) by adding after 
``Special Counsel'' the phrase, ``under this subpart''.

    Dated: December 17, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-33353 Filed 12-19-97; 8:45 am]
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