[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42685-42686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21288]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 154 / Tuesday, August 11, 1998 / 
Rules and Regulations  

[[Page 42685]]


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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 for original jurisdiction cases to permit 
assignment of certain of these cases to a judge other than an 
administrative law judge, to permit delegation of authority to an 
administrative law judge to decide Special Counsel stay requests, to 
permit delegation of authority to a member of the Board to rule on 
other matters related to a stay that has been granted to the Special 
Counsel (including motions for extension or termination of a stay), and 
to provide for judges to issue initial decisions, rather than 
recommended decisions, in Special Counsel complaints (including alleged 
violations of the Hatch Act) and proposed actions against 
administrative law judges. Certain other changes are made to reorganize 
and update the rules governing adjudication of original jurisdiction 
cases for the benefit of the Board's customers. These changes are 
intended to streamline the Board's adjudicatory procedures so that it 
can manage its original jurisdiction caseload more efficiently and 
effectively.

EFFECTIVE DATE: August 11, 1998.

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

SUPPLEMENTARY INFORMATION: The Board previously published an interim 
rule amending its regulations for the processing of original 
jurisdiction cases (5 CFR part 1201, subpart D) to permit assignment of 
certain of these cases to a judge other than an administrative law 
judge, to permit delegation of authority to an administrative law judge 
to decide Special Counsel stay requests, and to provide for judges to 
issue initial decisions, rather than recommended decisions, in Special 
Counsel complaints (including alleged violations of the Hatch Act) and 
proposed actions against administrative law judges. The interim rule 
made other changes in subpart D to reorganize and update the rules 
governing adjudication of original jurisdiction cases for the benefit 
of the Board's customers. 62 FR 48449, September 16, 1997. In issuing 
the interim rule, the Board allowed 60 days for receipt of public 
comments. No comments were received by the closing date, November 17, 
1997.
    The Board has determined that three changes should be made in the 
interim rule. Amendments are being made to Sec. 1201.125(c)(2), 
concerning exceptions to a recommended decision; Sec. 1201.134(b), 
concerning the deciding official for Special Counsel stay requests and 
related matters; and Sec. 1201.136(b), concerning Special Counsel 
requests for extensions of stays.
    Section 1201.125(c) describes the procedures to be followed where 
an administrative law judge finds in a Hatch Act case involving a 
Federal or District of Columbia Government employee that the Hatch Act 
was violated but that the violation does not warrant removal. In this 
circumstance, the administrative law judge issues a recommended 
decision, rather than an initial decision. Under the interim rule, 
Sec. 1201.125(c)(2) requires that any exceptions to a recommended 
decision be filed within 35 days after the date of service of the 
recommended decision.
    In a final rule published on November 6, 1997 (62 FR 59991), the 
Board amended various filing time limits, including the time limit for 
filing a petition for review of a judge's initial decision. The 
amendments made by that rule to Secs. 1201.113 and 1201.114 govern the 
time for filing a petition for review of an initial decision in 
original jurisdiction cases, as well as in appellate jurisdiction 
cases. No amendment was made at that time, however, to the filing time 
limit for exceptions to a recommended decision.
    To conform the filing time limit for exceptions to a recommended 
decision, therefore, the Board is amending Sec. 1201.125(c)(2) to 
provide that any exceptions to a recommended decision must be filed 
within 35 days after the date of service of the recommended decision 
or, if the filing party shows that the recommended decision was 
received more than 5 days after the date of service, within 30 days 
after the date the filing party received the recommended decision.
    Under the interim rule at Sec. 1201.134(b), any member of the Board 
may delegate his or her authority to decide a Special Counsel request 
for an initial stay to an administrative law judge. To expedite the 
processing of matters related to a stay that has been granted to the 
Special Counsel, including motions for extension or termination of a 
stay, the Board is amending Sec. 1201.134(b) to also provide for 
delegation of the authority to rule on such matters to a single Board 
member. To the extent that Kling v. Department of Justice, 2 M.S.P.R. 
464 (1980), holds that the Board may not delegate unreviewable 
decisionmaking authority, it is overruled.
    Under the interim rule, Sec. 1201.136(b) requires that the Special 
Counsel file any request for extension of a stay, along with its 
supporting brief, at least 15 days before the expiration date of the 
stay. The provision also requires that any agency response be filed 
within 10 days of the date of service of the Special Counsel's brief. 
The intent of prescribing specific time limits in this section was to 
allow sufficient time for Board attorneys to prepare a proposed 
decision on the extension request, and for the Board members to 
consider and vote on it, before the expiration date of the stay.
    Experience operating under the interim rule, however, has 
demonstrated that the time limits prescribed by Sec. 1201.136(b) often 
leave insufficient time for the preparation and consideration of a 
decision on an extension request. Furthermore, an agency may have 
insufficient time to respond to the Special Counsel's extension request 
if it is filed as late as 15 days before the stay expiration date and 
served on the agency by regular mail. Therefore, the Board is amending 
Sec. 1201.136(b) to require that a Special Counsel request for 
extension of a stay, along with its supporting brief, be received by 
the Board and the agency no later than 15 days before the expiration 
date of the stay. The Special Counsel

[[Page 42686]]

may use any method of filing and service described in Sec. 1201.134(f) 
that will ensure receipt by the due date. Section 1201.136(b) is 
further amended to require that any agency response to a Special 
Counsel request for extension of a stay be received by the Board no 
later than 8 days before the expiration date of the stay. The agency 
may use any method of filing described in Sec. 1201.134(f) that will 
ensure receipt by the due date.
    Subsequent to the issuance of the interim rule on September 16, 
1997, the Board issued an interim rule at 62 FR 66813, December 22, 
1997, that, among other things, amended Secs. 1201.121 and 1201.131. 
This final rule, therefore, notes that those two sections continue to 
read as amended on December 22, 1997.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).
    Accordingly, the Board adopts as final its interim rule published 
at 62 FR 48449, September 16, 1997, with the following changes:

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.

    1a. Sections 1201.121 and 1201.131 continue to read as amended by 
62 FR 66813, December 22, 1997.


Sec. 1201.125  [Amended]

    2. Section 1201.125 is amended at paragraph (c)(2) by removing the 
period at the end of the second sentence and by adding in its place the 
following: ``or, if the filing party shows that the recommended 
decision was received more than 5 days after the date of service, 
within 30 days after the date the filing party received the recommended 
decision.''


Sec. 1201.134  [Amended]

    3. Section 1201.134 is amended at paragraph (b) by adding the 
following sentence at the end of the paragraph: ``The Board may 
delegate to a member of the Board the authority to rule on any matter 
related to a stay that has been granted to the Special Counsel, 
including a motion for extension or termination of the stay.''
    4. Section 1201.136 is amended by revising paragraph (b) to read as 
follows:


Sec. 1201.136  [Amended]

* * * * *
    (b) Extension of stay. Upon the Special Counsel's request, a stay 
granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate 
period of time, but only after providing the agency with an opportunity 
to comment on the request. Any request for an extension of a stay under 
5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no 
later than 15 days before the expiration date of the stay. A brief 
describing the facts and any relevant legal authority that should be 
considered must accompany the request for extension. Any response by 
the agency must be received by the Board no later than 8 days before 
the expiration date of the stay.
* * * * *
    Dated: August 4, 1998.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 98-21288 Filed 8-10-98; 8:45 am]
BILLING CODE 7400-01-U