[Federal Register Volume 65, Number 24 (Friday, February 4, 2000)]
[Rules and Regulations]
[Pages 5410-5414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2339]



[[Page 5410]]

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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1208


Practices and Procedures for Appeals Under the Uniformed Services 
Employment and Reemployment Rights Act and the Veterans Employment 
Opportunities Act

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 
publishing a new part 1208 of its regulations to describe its practices 
and procedures with respect to appeals filed under the Uniformed 
Services Employment and Reemployment Rights Act of 1994, as amended, 
and the Veterans Employment Opportunities Act of 1998. The Uniformed 
Services Employment and Reemployment Rights Act permits a person 
covered by that law to appeal to the Board if a Federal agency employer 
or the Office of Personnel Management fails or refuses to provide an 
employment or reemployment right or benefit to which the person is 
entitled after service in a uniformed service. The Veterans Employment 
Opportunities Act permits a person entitled to veterans' preference to 
appeal to the Board if a Federal agency violates the person's rights 
under any statute or regulation relating to veterans' preference. While 
both of these laws are intended to provide protections for veterans, 
and while there are similarities in the procedures and remedies under 
each of the laws, there are significant differences as well. The 
purpose of this new part is to provide guidance to parties and their 
representatives on how to proceed in cases filed under these laws.
    The Board is simultaneously publishing an amendment to its rules at 
5 CFR part 1201 to conform certain provisions in that part to the new 
part 1208.

DATES:  Effective February 4, 2000. Submit written comments on or 
before April 4, 2000.

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 (USERRA), Public Law 103-353, as 
amended, and the Veterans Employment Opportunities Act of 1998 (VEOA), 
Public Law 105-339, extend the jurisdiction of the Merit Systems 
Protection Board to include complaints filed by covered persons, 
principally veterans, under each of these laws.
    The Board has previously issued regulations to implement provisions 
of USERRA in an amendment to its rules at 5 CFR part 1201 (interim rule 
at 62 FR 66813, December 22, 1997; final rule at 64 FR 54507, October 
7, 1999). Various provisions of VEOA require or permit the Board to 
issue regulations to implement particular procedural requirements of 
that law (5 U.S.C. 3330a(d)(1), 5 U.S.C. 3330a(d)(2)(B), and 5 U.S.C. 
3330b(c)).
    The Board believes that persons who file appeals under USERRA or 
VEOA, their representatives, and the agency parties to such appeals 
will best be served by combining the regulations that apply only to 
USERRA and VEOA appeals in a single place in the Board's rules. 
Therefore, the Board is issuing a new 5 CFR part 1208, titled 
``Practices and Procedures for Appeals under the Uniformed Services 
Employment and Reemployment Rights Act and the Veterans Employment 
Opportunities Act.'' The Board is publishing simultaneouly a rule 
making conforming amendments to part 1201.
    To the extent consistent with the statutory requirements of USERRA 
and VEOA, the Board is processing appeals under these laws in the same 
manner as it processes other appeals under the Board's appellate 
jurisdiction regulations, subparts B and C of 5 CFR part 1201. 
Therefore, the new part 1208 contains only provisions that are unique 
to USERRA and VEOA, and parties should refer to the appellate 
jurisdiction procedures of part 1201 for other applicable requirements.
    The Board's approach in the new part 1208, generally, is to include 
only provisions that restate or implement specific statutory 
requirements of USERRA and VEOA. For both USERRA and VEOA appeals, the 
new part 1208 includes additional requirements for the content of an 
appeal to ensure that information the Board needs to determine whether 
it has jurisdiction over an appeal under USERRA or VEOA is provided 
when the appeal is filed.
    USERRA and VEOA are similar in that both provide new redress 
mechanisms for the protection of certain veterans' rights. They are 
also similar in that an appeal under each law may be filed with the 
Board after an appellant has first asked the Department of Labor to try 
to resolve the matter. (In the Department of Labor, both USERRA and 
VEOA complaints are processed by the Veterans Employment and Training 
Service.) Despite these similarities, there are significant differences 
between USERRA and VEOA, as summarized below.

Violations Covered

    USERRA: The provisions of USERRA (codified at chapter 43 of title 
38, United States Code) covering Federal employees apply to claims that 
a Federal agency employer or the Office of Personnel Management has 
failed or refused to provide an employment or reemployment right or 
benefit to which a person is entitled after service in a uniformed 
service (other than claims relating to benefits under the Thrift 
Savings Plan for Federal employees). USERRA also applies to claims of 
discrimination based on uniformed service in connection with initial 
employment, reemployment, retention in employment, promotion, or any 
benefit of employment (38 U.S.C. 4311(a)) and claims of reprisal (38 
U.S.C. 4311(b)).
    VEOA: The redress mechanism established by VEOA (section 3 of the 
Act, codified at 5 U.S.C. 3330a through 3330c) applies to claims that a 
Federal agency has violated a preference eligible's rights under any 
statute or regulation relating to veterans' preference.

Persons Covered

    USERRA: The reemployment provisions of USERRA apply to persons who 
have left their employment for service in a uniformed service, provided 
they satisfy the Act's requirements relating to such matters as advance 
notice to the employer, cumulative length of absence, character of 
service, and the time limits for reporting back to work.
    The USERRA anti-discrimination provision is broader; it applies to 
anyone who has served, applied to serve, or has an obligation to serve 
in a uniformed service. (It applies only to such a person; there is no 
derived right for a parent or spouse to claim discrimination based on a 
person's uniformed service; see Lourens v. MSPB, Fed. Cir. No. 99-3153, 
October 13, 1999.) The prohibition against reprisal in USERRA applies 
to anyone who exercises a right under the Act, assists someone else to 
exercise such a right, or testifies in a proceeding under the Act, 
regardless of whether the person alleging reprisal has served in a 
uniformed service.

[[Page 5411]]

    VEOA: The VEOA redress mechanism applies to preference eligibles. 
The requirements a veteran (and, in certain instances, a mother or 
spouse of a veteran) must satisfy for preference eligible status are 
set forth at 5 U.S.C. 2108.

Choice of Procedure and Exhaustion Requirements

    USERRA: USERRA permits a covered person to initiate a proceeding 
under the Act either by filing with the Secretary of Labor or by filing 
directly with the Board. The Board has ruled that a person who files a 
formal complaint with the Secretary of Labor must exhaust the 
procedures of the Department of Labor before an appeal may be filed 
with the Board. Petersen v. Department of the Interior, 71 M.S.P.R. 227 
(1996). If the person simply seeks assistance from the Department of 
Labor, however, and does not file a formal complaint, the exhaustion 
requirement does not apply.
    VEOA: VEOA requires a preference eligible who alleges a violation 
of veterans' preference to file first with the Secretary of Labor. The 
Board has no jurisdiction over a VEOA appeal until the Department of 
Labor procedures have been exhausted.

Filing Time Limits

    USERRA: USERRA contains no statutory time limit for filing a 
complaint either with the Secretary of Labor or with the Board. The 
Board has determined that it would be inconsistent with the 
Congressional intent in enacting USERRA and its predecessor laws for 
the Board to establish a filing time limit by regulation. Therefore, 
there is no time limit for filing a USERRA appeal.
    VEOA: VEOA establishes statutory filing time limits for each stage 
of the redress procedure. Unless the Secretary of Labor has notified 
the appellant that the Department of Labor has been unable to resolve 
the appellant's VEOA complaint, a VEOA appeal may not be filed with the 
Board before the 61st day after the complaint was filed with the 
Secretary. If the Secretary notifies the appellant that the Department 
of Labor has been unable to resolve the complaint, any VEOA appeal to 
the Board must be filed within 15 days of the date of receipt of the 
Secretary's notice. VEOA does not provide for waiver of any of its 
statutory filing time limits for good cause.

Representation

    USERRA: USERRA authorizes the Special Counsel to represent a person 
in a USERRA appeal before the Board. Such representation is available 
only where the person has filed a USERRA complaint with the Secretary 
of Labor, the Secretary has notified the person that the Department of 
Labor cannot resolve the complaint, and the person asks the Secretary 
to refer the complaint to the Special Counsel. There is no provision 
for representation by the Special Counsel where a person files a USERRA 
appeal directly with the Board. Regardless of whether a USERRA 
appellant files with the Board directly, after exhausting the 
procedures of the Department of Labor, or after the Special Counsel has 
declined to represent the appellant, he may choose a representative in 
accordance with the Board's regulations at 5 CFR 1201.31.
    VEOA: VEOA contains no provisions regarding representation of a 
VEOA appellant. The appellant may choose a representative in accordance 
with the Board's regulations at 5 CFR 1201.31.

Termination of Proceeding

    USERRA: There is no provision in USERRA for a person who has filed 
a USERRA appeal with the Board to terminate the Board proceeding before 
it has concluded with the issuance of a decision.
    VEOA: VEOA permits a person who has filed a VEOA appeal to elect to 
terminate the Board proceeding and file a civil action in district 
court if the Board has not issued a judicially reviewable decision 
within 120 days after the appeal was filed. The Board proceeding must 
terminate immediately upon the Board's receipt of the appellant's 
election.

Remedies

    USERRA and VEOA: Both laws provide that if the Board determines 
that the agency has committed a violation, the Board must order the 
agency to comply with the provision(s) violated and award compensation 
for any loss of wages or benefits suffered by the appellant because of 
the violation.
    USERRA: USERRA provides that any compensation received by the 
appellant pursuant to the Board's order shall be in addition to any 
other right or benefit provided for by chapter 43 of title 38, United 
States Code, and shall not diminish any such right or benefit. USERRA 
also permits the Board, when it orders an agency to comply, to award 
reasonable attorney fees, expert witness fees, and other litigation 
expenses.
    VEOA: VEOA provides that where the Board finds that the agency's 
violation was willful, it must award an amount equal to backpay as 
liquidated damages. VEOA also requires the Board, when it orders an 
agency to comply, to award reasonable attorney fees, expert witness 
fees, and other litigation expenses.

Judicial Review

    USERRA: USERRA explicitly provides that a final Board decision on a 
USERRA appeal is subject to judicial review in accordance with 5 U.S.C. 
7703, which provides for judicial review by the United States Court of 
Appeals for the Federal Circuit.
    VEOA: VEOA does not include a judicial review provision comparable 
to that in USERRA. It does, however, implicitly acknowledge that a 
final Board decision on a VEOA appeal is subject to judicial review by 
referring to the Board's issuance of a ``judicially reviewable 
decision.'' In the absence of an explicit judicial review provision, 
the Board relies on precedent construing the applicability of 5 U.S.C. 
7703 to final Board decisions in cases other than those decided under 
chapter 77 of title 5, United States Code (See, e.g., Frazier, et al., 
v. MSPB, 672 F.2d 150, 160 (D.C. Cir. 1982)). Therefore, the Board's 
decisions on VEOA appeals will provide notice that judicial review is 
available in the United States Court of Appeals for the Federal 
Circuit.

Appeals Under Another Law, Rule, or Regulation.

    USERRA: Nothing in USERRA prevents an appellant who may appeal an 
agency action to the Board under any other law, rule, or regulation 
from raising a claim of a USERRA violation in that appeal. The Board 
has ruled that it will treat such a claim as an affirmative defense 
that the agency action was not in accordance with law. See Morgan v. 
United States Postal Service, 82 M.S.P.R. 1 (1999).
    VEOA: VEOA provides that a preference eligible who may appeal 
directly to the Board from an agency action that is appealable under 
any other law, rule, or regulation, may do so in lieu of administrative 
redress under VEOA (emphasis added) (5 U.S.C. 3330a(e)(1)). Such an 
appellant, however, may not pursue redress for an alleged violation of 
veterans' preference under VEOA at the same time he pursues redress for 
the violation under any other law, rule, or regulation (5 U.S.C. 
3330a(e)(2)). An appellant who elects to appeal to the Board under 
another law, rule, or regulation must comply with the provisions of 
subparts B and C of 5 CFR part 1201, including the time of filing 
requirement of 5 CFR Sec. 1201.22(b)(1).
    The Board is publishing this rule as an interim rule pursuant to 5 
U.S.C. 1204(h), 5 U.S.C. 3330a, 5 U.S.C. 3330b, and 38 U.S.C. 4331.

[[Page 5412]]

List of Subjects in 5 CFR Part 1208

    Administrative practice and procedure, Government employees, 
Veterans.

    Accordingly, the Board amends 5 CFR chapter II, subchapter A, by 
adding part 1208 reading as follows:

PART 1208--PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED 
SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS 
EMPLOYMENT OPPORTUNITIES ACT

Subpart A--Jurisdiction and Definitions
Sec.
1208.1   Scope.
1208.2   Jurisdiction.
1208.3   Application of 5 CFR part 1201.
1208.4   Definitions.
Subpart B--USERRA Appeals
1208.11   Choice of procedure under USERRA; exhaustion requirement.
1208.12   Time of filing.
1208.13   Content of appeal; request for hearing.
1208.14   Representation by Special Counsel.
1208.15   Remedies.
1208.16   Appeals under another law, rule, or regulation.
Subpart C--VEOA Appeals
1208.21   VEOA exhaustion requirement.
1208.22   Time of filing.
1208.23   Content of appeal; request for hearing.
1208.24   Election to terminate MSPB proceeding.
1208.25   Remedies.
1208.26   Appeals under another law, rule, or regulation.

    Authority: 5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.

Subpart A--Jurisdiction and Definitions


Sec. 1208.1  Scope.

    This part governs appeals filed with the Board under the provisions 
of 38 U.S.C. 4324, as enacted by the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, as 
amended, or under the provisions of 5 U.S.C. 3330a, as enacted by the 
Veterans Employment Opportunities Act of 1998 (VEOA), Public Law 105-
339. With respect to USERRA appeals, this part applies to any appeal 
filed with the Board on or after October 13, 1994, without regard as to 
whether the alleged violation occurred before, on, or after October 13, 
1994. With respect to VEOA appeals, this part applies to any appeal 
filed with the Board which alleges that a violation occurred on or 
after October 31, 1998.


Sec. 1208.2  Jurisdiction.

    (a) USERRA. Under 38 U.S.C. 4324, a person entitled to the rights 
and benefits provided by chapter 43 of title 38, United States Code, 
may file an appeal with the Board alleging that a Federal agency 
employer or the Office of Personnel Management has failed or refused, 
or is about to fail or refuse, to comply with a provision of that 
chapter (other than a provision relating to benefits under the Thrift 
Savings Plan for Federal employees). In general, the provisions of 
chapter 43 of title 38 that apply to Federal employees guarantee 
various reemployment rights following a period of service in a 
uniformed service, provided the employee satisfies the requirements for 
coverage under that chapter. In addition, chapter 43 of title 38 
prohibits discrimination based on a person's service--or application or 
obligation for service--in a uniformed service (38 U.S.C. 4311). This 
prohibition applies with respect to initial employment, reemployment, 
retention in employment, promotion, or any benefit of employment.
    (b) VEOA. Under 5 U.S.C. 3330a, a preference eligible who alleges 
that a Federal agency has violated his rights under any statute or 
regulation relating to veterans' preference may file an appeal with the 
Board, provided that he has satisfied the statutory requirements for 
first filing a complaint with the Secretary of Labor and allowing the 
Secretary at least 60 days to attempt to resolve the complaint.


Sec. 1208.3  Application of 5 CFR part 1201.

    Except as expressly provided in this part, the Board will apply 
subparts A (Jurisdiction and Definitions), B (Procedures for Appellate 
Cases), C (Petitions for Review of Initial Decisions), and F 
(Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to 
appeals governed by this part. The Board will apply the provisions of 
subpart H (Attorney Fees, and Litigation Expenses, Where Applicable), 
Consequential Damages, and Compensatory Damages) of 5 CFR part 1201 
regarding awards of attorney fees to appeals governed by this part.


Sec. 1208.4  Definitions.

    (a) Appeal. ``Appeal'' means a request for review of an agency 
action (the same meaning as in 5 CFR Sec. 1201.4(f)) and includes a 
``complaint'' or ``action'' as those terms are used in USERRA (38 
U.S.C. 4324) and a ``complaint'' or ``appeal'' as those terms are used 
in VEOA (5 U.S.C. 3330a).
    (b) Preference eligible. ``Preference eligible'' is defined in 5 
U.S.C. 2108.
    (c) USERRA appeal. ``USERRA appeal'' means an appeal filed under 38 
U.S.C. 4324, as enacted by the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (Public Law 103-353), as amended. The 
term includes an appeal that alleges a violation of a predecessor 
statutory provision of chapter 43 of title 38, United States Code.
    (d) VEOA appeal. ``VEOA appeal'' means an appeal filed under 5 
U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act 
of 1998 (Public Law 105-339).

Subpart B--USERRA Appeals


Sec. 1208.11  Choice of procedure under USERRA; exhaustion requirement.

    (a) Choice of procedure. An appellant may file a USERRA appeal 
directly with the Board under this subpart or may file a complaint with 
the Secretary of Labor under 38 U.S.C. 4322.
    (b) Exhaustion requirement. If an appellant files a complaint with 
the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file 
a USERRA appeal with the Board until the Secretary notifies the 
appellant in accordance with 38 U.S.C. 4322(e) that the Secretary has 
been unable to resolve the complaint. An appellant who seeks assistance 
from the Secretary of Labor under 38 U.S.C. 4321 but does not file a 
complaint with the Secretary under 38 U.S.C. 4322 is not subject to the 
exhaustion requirement of this paragraph.
    (c) Appeals after exhaustion of Department of Labor procedure. When 
an appellant receives notice from the Secretary of Labor in accordance 
with 38 U.S.C. 4322(e) that the Secretary has been unable to resolve 
the complaint, the appellant may file a USERRA appeal directly with the 
Board or may ask the Secretary to refer the complaint to the Special 
Counsel. If the Special Counsel agrees to represent the appellant, the 
Special Counsel may file a USERRA appeal directly with the Board. If 
the Special Counsel does not agree to represent the appellant, the 
appellant may file a USERRA appeal directly with the Board.


Sec. 1208.12  Time of filing.

    Under chapter 43 of title 38, United States Code, there is no time 
limit for filing a USERRA appeal with the Board. However, the Board 
encourages appellants to file a USERRA appeal as soon as possible after 
the date of the alleged violation or, if a complaint is filed with the 
Secretary of Labor, as soon as possible after receiving notice from the 
Secretary in accordance with

[[Page 5413]]

38 U.S.C. 4322(e) that the Secretary has been unable to resolve the 
complaint, or, if the Secretary has referred the complaint to the 
Special Counsel and the Special Counsel does not agree to represent the 
appellant, as soon as possible after receiving the Special Counsel's 
notice.


Sec. 1208.13  Content of appeal; request for hearing.

    (a) Content. A USERRA appeal may be in any format, including letter 
form, but must contain the following:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24(a)(1) through (a)(9);
    (2) Evidence or argument that the appellant has performed service 
in a uniformed service, including the dates of such service (or, where 
applicable, has applied for or has an obligation to perform such 
service), and that the appellant otherwise satisfies the requirements 
for coverage under chapter 43 of title 38, United States Code;
    (3) A statement identifying the provision of chapter 43 of title 
38, United States Code, that was allegedly violated and an explanation 
of how the provision was violated;
    (4) If the appellant filed a complaint with the Secretary of Labor 
under 38 U.S.C. 4322(a), evidence of notice under 38 U.S.C. 4322(e) 
that the Secretary has been unable to resolve the complaint (a copy of 
the Secretary's notice satisfies this requirement); and
    (5) If the appellant's complaint was referred to the Special 
Counsel and the appellant has received notice that the Special Counsel 
will not represent the appellant before the Board, evidence of the 
Special Counsel's notice (a copy of the Special Counsel's notice 
satisfies this requirement).
    (b) Request for hearing. An appellant must submit any request for a 
hearing with the USERRA appeal, or within any other time period the 
judge sets. A hearing may be provided to the appellant once the Board's 
jurisdiction over the appeal is established. The judge may also order a 
hearing if necessary to resolve issues of jurisdiction. The appellant 
has the burden of proof with respect to issues of jurisdiction (5 CFR 
1201.56(a)(2)(i)).


Sec. 1208.14  Representation by Special Counsel.

    The Special Counsel may represent an appellant in a USERRA appeal 
before the Board. A copy of any written request by the appellant to the 
Secretary of Labor that the appellant's complaint under 38 U.S.C. 
4322(a) be referred to the Special Counsel for litigation before the 
Board will be accepted as the written designation of representative 
required by 5 CFR 1201.31(a).


Sec. 1208.15  Remedies.

    (a) Order for compliance. If the Board determines that a Federal 
agency employer or the Office of Personnel
    Management has not complied with a provision or provisions of 
chapter 43 of title 38, United States Code (other than a provision 
relating to benefits under the Thrift Savings Plan for Federal 
employees), the decision of the Board (either an initial decision of a 
judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 
1201.117) will order the Federal agency employer or the Office of 
Personnel Management, as applicable, to comply with such provision(s) 
and to compensate the appellant for any loss of wages or benefits 
suffered by the appellant because of such lack of compliance. Under 38 
U.S.C. 4324(c)(3), any compensation received by the appellant pursuant 
to the Board's order shall be in addition to any other right or benefit 
provided for by chapter 43 of title 38, United States Code, and shall 
not diminish any such right or benefit.
    (b) Attorney fees and expenses. If the Board issues a decision 
ordering compliance under paragraph (a) of this section, the Board has 
discretion to order payment of reasonable attorney fees, expert witness 
fees, and other litigation expenses under 38 U.S.C. 4324(c)(4). The 
provisions of subpart H of part 1201 shall govern any proceeding for 
attorney fees and expenses.


Sec. 1208.16  Appeals under another law, rule, or regulation.

    Nothing in USERRA prevents an appellant who may appeal an agency 
action to the Board under any other law, rule, or regulation from 
raising a claim of a USERRA violation in that appeal. The Board will 
treat such a claim as an affirmative defense that the agency action was 
not in accordance with law (5 CFR 1201.56(b)(3)).

Subpart C--VEOA Appeals


Sec. 1208.21  VEOA exhaustion requirement.

    Before an appellant may file a VEOA appeal with the Board, the 
appellant must first file a complaint under 5 U.S.C. 3330a(a) with the 
Secretary of Labor within 60 days after the date of the alleged 
violation and allow the Secretary at least 60 days from the date the 
complaint is filed to attempt to resolve the complaint.


Sec. 1208.22  Time of filing.

    (a) Unless the Secretary of Labor has notified the appellant that 
the Secretary has been unable to resolve the appellant's VEOA 
complaint, a VEOA appeal may not be filed with the Board before the 
61st day after the date on which the appellant filed the complaint 
under 5 U.S.C. 3330a(a) with the Secretary.
    (b) If the Secretary of Labor notifies the appellant that the 
Secretary has been unable to resolve the appellant's VEOA complaint and 
the appellant elects to appeal to the Board under 5 U.S.C. 3330a(d), 
the appellant must file the VEOA appeal with the Board within 15 days 
after the date of receipt of the Secretary's notice. A copy of the 
Secretary's notice must be submitted with the appeal.


Sec. 1208.23  Content of appeal; request for hearing.

    (a) Content. A VEOA appeal may be in any format, including letter 
form, but must contain the following:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24(a)(1) through (a)(9);
    (2) Evidence or argument that the appellant is a preference 
eligible;
    (3) A statement identifying the statute or regulation relating to 
veterans' preference that was allegedly violated, an explanation of how 
the provision was violated, and the date of the violation;
    (4) Evidence that a complaint under 5 U.S.C. 3330a(a) was filed 
with the Secretary of Labor, including the date the complaint was 
filed; and
    (5)(i) Evidence that the Secretary has notified the appellant in 
accordance with 5 U.S.C. 3330a(c)(2) that the Secretary has been unable 
to resolve the complaint (a copy of the Secretary's notice satisfies 
this requirement); or
    (ii) Evidence that the appellant has provided written notice to the 
Secretary of the appellant's intent to appeal to the Board, as required 
by 5 U.S.C. 3330a(d)(2) (a copy of the appellant's written notice to 
the Secretary satisfies this requirement).
    (b) Request for hearing. An appellant must submit any request for a 
hearing with the VEOA appeal, or within any other time period the judge 
sets. A hearing may be provided to the appellant once the Board's 
jurisdiction over the appeal is established and it has been determined 
that the appeal is timely. The judge may also order a hearing if 
necessary to resolve issues of jurisdiction or timeliness. The 
appellant has the burden of proof with respect to issues of 
jurisdiction and timeliness (5 CFR 1201.56(a)(2)(i) and (ii)).

[[Page 5414]]

Sec. 1208.24  Election to terminate MSPB proceeding.

    (a) Election to terminate. At any time beginning on the 121st day 
after an appellant files a VEOA appeal with the Board, if a judicially 
reviewable Board decision on the appeal has not been issued, the 
appellant may elect to terminate the Board proceeding as provided under 
5 U.S.C. 3330b and file a civil action with an appropriate United 
States district court. Such election must be in writing, filed with the 
Board office where the appeal is being processed, and served on the 
parties. The election is effective immediately on the date of receipt 
by the Board office where the appeal is being processed.
    (b) Termination order. Following receipt by the Board of an 
appellant's written election to terminate the Board proceeding, a 
termination order will be issued to document the termination of the 
proceeding. The termination order will state that the proceeding was 
terminated as of the date of receipt of the appellant's written 
election. Such an order is neither an initial decision under 5 CFR 
1201.111 nor a final Board decision and is not subject to a petition 
for review in accordance with subpart C of part 1201, a petition for 
enforcement in accordance with subpart F of part 1201, or a petition 
for judicial review.


Sec. 1208.25  Remedies.

    (a) Order for compliance. If the Board determines that a Federal 
agency has violated the appellant's VEOA rights, the decision of the 
Board (either an initial decision of a judge under 5 CFR 1201.111 or a 
final Board decision under 5 CFR 1201.117) will order the agency to 
comply with the statute or regulation violated and to compensate the 
appellant for any loss of wages or benefits suffered by the appellant 
because of the violation. If the Board determines that the violation 
was willful, it will order the agency to pay the appellant an amount 
equal to back pay as liquidated damages.
    (b) Attorney fees and expenses. If the Board issues a decision 
ordering compliance under paragraph (a) of this section, the Board will 
order payment of reasonable attorney fees, expert witness fees, and 
other litigation expenses. The provisions of subpart H of part 1201 
shall govern any proceeding for attorney fees and expenses.


Sec. 1208.26  Appeals under another law, rule, or regulation.

    (a) The VEOA provides that 5 U.S.C. 3330a shall not be construed to 
prohibit a preference eligible from appealing directly to the Board 
from any action that is appealable under any other law, rule, or 
regulation, in lieu of administrative redress under VEOA (5 U.S.C. 
3330a(e)(1)). An appellant may not pursue redress for an alleged 
violation of veterans' preference under VEOA at the same time he 
pursues redress for such violation under any other law, rule, or 
regulation (5 U.S.C. 3330a(e)(2)).
    (b) An appellant who elects to appeal to the Board under another 
law, rule, or regulation must comply with the provisions of subparts B 
and C of 5 CFR part 1201, including the time of filing requirement of 5 
CFR 1201.22(b)(1).

    Dated: January 24, 2000.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-2339 Filed 2-3-00; 8:45 am]
BILLING CODE 7400-01-U