[Federal Register Volume 63, Number 148 (Monday, August 3, 1998)]
[Rules and Regulations]
[Page 41181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20448]


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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: Final rule.

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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.

EFFECTIVE DATE: August 3, 1998.

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

SUPPLEMENTARY INFORMATION: The Board previously published an interim 
rule 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, and to include a cross-
reference to subpart H of part 1201 regarding awards of attorney fees 
and consequential damages (62 FR 17047, April 9, 1997). The interim 
rule requested public comments and allowed 60 days, until June 9, 1997, 
for receipt of such comments.
    Comments were received from one Federal agency suggesting that the 
Board amend part 1209 to impose a time limit for bringing an action to 
the Special Counsel as a pre-condition for later bringing an individual 
right of action (IRA) appeal to the Board. Although the recommendation 
does not address any of the changes made by the interim rule, the Board 
will address it.
    The Board has concluded that imposing such a time limit would not 
be a proper exercise of its regulatory authority. That authority is 
limited to matters within the Board's jurisdiction (5 U.S.C. 1204(h) 
and 7701(k), and 38 U.S.C. 4331).
    Under 5 U.S.C. 7121(g)(2), an employee who has been affected by a 
prohibited personnel practice (other than discrimination) may elect 
among three specified remedies: (1) An appeal to MSPB under 5 U.S.C. 
7701, (2) a grievance under a negotiated grievance procedure, or (3) an 
action under subchapters II and III of chapter 12 of title 5. 
Subchapter II concerns Special Counsel actions (which may lead to 
corrective action complaints before the Board), and subchapter III 
covers IRA appeals. Because the conjunctive is used with regard to the 
Special Counsel and IRA processes, it appears that Congress intended, 
without limits other than those specified, to allow complainants to go 
to the Special Counsel and bring IRA appeals to the Board on the same 
matter. By limiting the matters that can be brought to the Board under 
subchapter III to only ``timely-raised'' matters brought to OSC under 
subchapter II, as suggested by the commenter, the Board would be adding 
a limitation to the IRA appeal choice that is not contained in the 
statute.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).
    Accordingly, the Board adopts as a final rule, without change, its 
interim rule published at 62 FR 17047, April 9, 1997.

    Dated: July 27, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-20448 Filed 7-31-98; 8:45 am]
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