[Federal Register Volume 64, Number 99 (Monday, May 24, 1999)]
[Rules and Regulations]
[Pages 27899-27901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12976]


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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 (MSPB or the Board) is 
amending its rules of practice and procedure to

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modify the rules regarding what an agency must show when it files a 
petition for review of an initial decision that has ordered interim 
relief for an appellant.

EFFECTIVE DATE: May 24, 1999.

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

SUPPLEMENTARY INFORMATION: Under 5 U.S.C. 7701(b)(2)(A), an employee or 
applicant for employment who prevails in an appeal to the Board must be 
granted interim relief--that is, the relief provided in the MSPB 
administrative judge's initial decision--if a petition for review of 
the initial decision is filed with the Board. Such interim relief must 
be effected as of the date of the initial decision and must remain in 
effect until the Board issues a decision on the petition for review.
    There are two exceptions to the requirement for interim relief. 
Under 5 U.S.C. 7701(b)(2)(A)(i), interim relief will not be granted if 
the administrative judge determines that the granting of such relief is 
not appropriate. Under 5 U.S.C. 7701(b)(2)(A)(ii), complete interim 
relief will not be provided if the initial decision provides that the 
appellant shall return to or be present at the place of employment and 
the agency determines that the return or presence of the appellant 
would be unduly disruptive to the work environment. Under 5 U.S.C. 
7701(b)(2)(B), an agency that makes an undue disruption determination 
under 5 U.S.C. 7701(b)(2)(A)(ii) must provide the appellant with pay 
and benefits during the period pending the outcome of a petition for 
review.
    Under the Board's rule at 5 CFR 1201.115(b), in a case where 
interim relief has been granted, an agency must submit with its 
petition for review evidence that it has provided the interim relief 
required by the initial decision-- paragraph (b)(1)--or evidence that 
it has made an undue disruption determination and is providing the 
appellant with pay and benefits as required--paragraph (b)(2). The rule 
further provides that if the agency does not submit evidence showing 
compliance with either paragraph (b)(1) or (b)(2), the Board will 
dismiss the agency's petition for review.
    Under this rule, a dismissal might occur, for example, where an 
agency shows that it has reinstated an appellant's pay and benefits as 
of the date of the initial decision but fails to submit with its 
petition for review evidence that it has made an undue disruption 
determination to support its failure to restore the appellant to his 
former position. The circumstances of a case may demonstrate, however, 
that the agency's actions are equivalent to an undue disruption 
determination. In other circumstances, evidence of an undue disruption 
determination may be submitted late. In circumstances such as these, 
where the appellant's pay and benefits have been restored effective 
from the date of the initial decision, if there is no harm to the 
appellant, dismissal of the agency's petition for review should not be 
required.
    In keeping with its commitment to resolving disputes on the merits 
rather than dismissing them on the basis of a technical violation of a 
rule, not mandated by statute, the Board has determined that its 
requirements with respect to interim relief should be modified. 
Therefore, the Board is amending its rules at 5 CFR 1201.111 and 
1201.115 as follows:
    Section 1201.111(c) is redesignated as Sec. 1201.111(c)(1). Section 
1201.111(c)(2) is a new rule which ensures that an appellant has notice 
of his rights under an interim relief order.
    Section 1201.115(b)(1) is amended to replace the current 
requirement for submission of evidence at the time of filing a petition 
for review with a requirement that the agency include in its petition 
for review a certification that it has complied with the interim relief 
order either by providing the required interim relief or by satisfying 
the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
    Section 1201.115(b)(2), as amended, is a new rule providing that, 
if the appellant challenges the agency's certification of compliance 
with the interim relief order, the Board will issue an order affording 
the agency the opportunity to submit evidence of its compliance, and 
allowing the appellant to respond to the agency's submission of 
evidence.
    The former Sec. 1201.115(c) is redesignated as Sec. 1201.115(b)(3). 
It is amended to conform to Sec. 1201.115(b)(2), as amended, and to 
clarify that the provision applies only where an appellant or 
intervenor files a petition for review and there is a challenge to the 
agency's compliance with the interim relief order.
    Section 1201.115(b)(4) is amended to provide that a failure by the 
agency to provide the required certification in accordance with 
Sec. 1201.115(b)(1), or to provide evidence of compliance in response 
to a Board order in accordance with Sec. 1201.115(b)(2) or (b)(3), may 
result in the dismissal of the agency's petition or cross petition for 
review.
    The former Sec. 1201.115(b)(3) is redesignated as Sec. 1201.115(c) 
and is amended only to make necessary conforming changes.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).

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--PRACTICES AND PROCEDURES

    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 1201.111 is amended by redesignating the text of 
paragraph (c) as paragraph (c)(1) and by adding new paragraph (c)(2) to 
read as follows:


Sec. 1201.111  Initial decision by judge.

* * * * *
    (c) Interim relief. (1) * * *
    (2) An initial decision that orders interim relief shall include a 
section which will provide the appellant specific notice that the 
relief ordered in the decision must be provided by the agency effective 
as of the date of the decision if a party files a petition for review. 
If the relief ordered in the initial decision requires the agency to 
effect an appointment, the notice required by this section will so 
state, will specify the title and grade of the appointment, and will 
specifically advise the appellant of his right to receive pay and 
benefits while any petition for review is pending, even if the agency 
determines that the appellant's return to or presence in the workplace 
would be unduly disruptive.
    3. Section 1201.115 is amended by revising paragraphs (b) and (c) 
to read as follows:


Sec. 1201.115  Contents of petition for review.

* * * * *
    (b)(1) If the appellant was the prevailing party in the initial 
decision, and the decision granted the appellant interim relief, any 
petition for review or cross petition for review filed by the agency 
must be accompanied by a certification that the agency has complied 
with the interim relief order either by providing the required interim 
relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) 
and (B).
    (2) If the appellant challenges the agency's certification of 
compliance with the interim relief order, the Board will issue an order 
affording the agency the opportunity to submit evidence of its 
compliance. The appellant may

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respond to the agency's submission of evidence within 10 days after the 
date of service of the submission.
    (3) If an appellant or an intervenor files a petition or cross 
petition for review of an initial decision ordering interim relief and 
such petition includes a challenge to the agency's compliance with the 
interim relief order, upon order of the Board the agency must submit 
evidence that it has provided the interim relief required or that it 
has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
    (4) Failure by an agency to provide the certification required by 
paragraph (b)(1) of this section with its petition or cross petition 
for review, or to provide evidence of compliance in response to a Board 
order in accordance with paragraph (b)(2) or (b)(3) of this section, 
may result in the dismissal of the agency's petition or cross petition 
for review.
    (c) Nothing in paragraph (b) of this section shall be construed to 
require any payment of back pay for the period preceding the date of 
the judge's initial decision or attorney fees before the decision of 
the Board becomes final.
* * * * *
    Dated: May 18, 1999.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 99-12976 Filed 5-21-99; 8:45 am]
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