[Federal Register Volume 65, Number 159 (Wednesday, August 16, 2000)]
[Rules and Regulations]
[Pages 49895-49896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20736]



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  Federal Register / Vol. 65, No. 159 / Wednesday, August 16, 2000 / 
Rules and Regulations  

[[Page 49895]]



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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
publishing final 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 the Act 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 under the 
Act. 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 these regulations is to 
provide guidance to parties and their representatives on how to proceed 
in cases filed under these laws.

EFFECTIVE DATE: August 16, 2000.

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

SUPPLEMENTARY INFORMATION: On Februry 4, 2000, the Board published a 
new part 1208 of its regulations in title 5, Code of Federal 
Regulations (CFR), as an interim rule with request for comments (65 FR 
5409). The new part describes the Board's practices and procedures with 
respect to appeals filed under 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. The Board allowed 60 days, until April 4, 2000, for 
receipt of public comments. The Board received comments from the 
Department of Labor, Office of the Assistant Secretary for Veterans' 
Employment and Training (DOL/VETS), and from one local of a national 
employee organization representing postal workers (union local).
    In addition to suggesting certain changes in the regulatory 
language, DOL/VETS asked that certain statements in the preamble to the 
interim rule be clarified. The SUMMARY section of the interim rule 
included a statement that a USERRA appellant may 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'' (emphasis added). DOL/VETS noted that certain provisions of 
USERRA also protect persons who apply for service, have an obligation 
to perform service, or assist in an investigation, regardless of 
whether the person has actually performed service in a uniformed 
service. In response to the DOL/VETS suggestion, the comparable 
statement in the SUMMARY section of this final rule refers to ``an 
employment or reemployment right or benefit to which the person is 
entitled under the Act'' (emphasis added).
    The first paragraph of the SUPPLEMENTARY INFORMATION section of the 
interim rule stated that USERRA and VEOA extended the Board's 
jurisdiction to include ``complaints filed by covered persons, 
principally veterans, under each of these laws'' (emphasis added). DOL/
VETS pointed out that the majority of USERRA cases opened by that 
office in the past several years have been filed by current members of 
the National Guard and Reserve, rather than by veterans. Without 
deciding who are the principal filers under USERRA, the Board agrees 
that the restrictive language referring to veterans could have been 
confusing to members of the National Guard and Reserve and was 
unnecessary. As noted in the SUMMARY, the Board's VEOA jurisdiction, 
however, is limited to complaints filed by persons entitled to 
veterans' preference.
    Under the heading, ``Termination of Proceeding,'' in the 
Supplementary Information; section of the interim rule, the Board 
distinguished USERRA from VEOA by pointing out that USERRA does not 
provide for termination of a Board proceeding before it has concluded 
with the issuance of a decision. VEOA does provide for such 
termination, if the Board has not issued a judicially reviewable 
decision within 120 days after the appeal was filed, where the 
appellant elects to file a civil action in an appropriate United States 
district court. DOL/VETS suggested that the statement about USERRA, in 
order to make the distinction between the two laws clearer, should have 
said that USERRA does not permit a person to terminate a Board 
proceeding and file a civil action in an appropriate United States 
district court before the Board proceeding has concluded with the 
issuance of a decision. Although the Board believes the original 
statement was clear, it notes that with the additional phrase suggested 
by DOL/VETS, the statement is more specific.
    With respect to the regulatory language of the interim rule, DOL/
VETS asked that sections 1208.11(b) and (c), 1208.12, 1208.13(a)(4), 
1208.22(a) and (b), and 1208.23(a)(5)(i) each be amended to replace the 
words, ``the Secretary has been unable to resolve the complaint,'' with 
``the Secretary's efforts have not resolved the complaint.'' DOL/VETS 
stated that the use of the word ``unable'' suggests that the Secretary 
attempts to resolve all complaints filed with DOL. According to DOL/
VETS, if the Secretary does not believe that the action alleged in a 
USERRA or VEOA complaint occurred, the Secretary will not attempt to 
resolve the complaint. Instead, the Secretary will notify the claimant 
of the results of the investigation and advise him that the

[[Page 49896]]

case is being closed, at which point he may file an appeal with MSPB. 
The Board agrees that the change suggested by DOL/VETS should be made 
and amends each of the sections referenced above in this final rule.
    DOL/VETS also suggested that section 1208.26(a) be expanded to 
clarify how the Board will interpret the VEOA provision regarding 
appeals to the Board under any other law, rule, or regulation in lieu 
of administrative redress under VEOA (5 U.S.C. 3330a(e)), including an 
example of how the provision would operate where an appellant makes 
claims covered by both USERRA and VEOA. The Board recognizes that this 
VEOA provision raises several questions of interpretation. Until such 
time as the Board and its reviewing court can interpret the provision 
through decisions in actual cases, however, the Board believes that it 
is best simply to restate the statutory provision in its regulation 
implementing the provision. Accordingly, the Board has not adopted this 
suggestion of DOL/VETS in the final rule.
    The union local suggested that section 1208.13(a)(3), which 
requires a USERRA appellant to identify the provision of chapter 43 of 
title 38, United States Code, that was allegedly violated, be amended 
so that submission of this information would be permissive rather than 
mandatory. The local argued that requiring an appellant to identify the 
statutory provision that was allegedly violated ``is burdensome on pro 
se litigants.'' The local also cited to the Federal Circuit ruling in 
Yates v. MSPB, 145 F.3d 1480, 1485 (Fed. Cir. 1998) and to Board 
rulings, relying on Yates, in Martir v. Department of the Navy, 81 
M.S.P.R. 421 (1999) and Johnson v. United States Postal Service, 85 
M.S.P.R. 1 (1999). The essence of these rulings is that to invoke the 
Board's jurisdiction under USERRA, an appellant need not specifically 
cite USERRA. It is sufficient, for example, for an appellant to show 
that he performed service in a uniformed service, that he was denied a 
right or benefit guaranteed by chapter 43 of title 38, and that the 
right or benefit was denied because of his uniformed service.
    The intent of section 1208.13(a)(3) was to assist an appellant in 
establishing Board jurisdiction over his USERRA appeal. The only basis 
for the Board's jurisdiction over such an appeal is a failure or 
refusal by a Federal agency employer or the Office of Personnel 
Management to provide a right or benefit guaranteed by chapter 43 of 
title 38 (other than a provision relating to benefits under the Thrift 
Savings Plan for Federal employees). In order to determine whether it 
has jurisdiction over a particular USERRA appeal, the Board must know 
what right or benefit guaranteed by chapter 43 of title 38 the 
appellant alleges an agency failed or refused to provide. To the extent 
that the interim rule requires that a USERRA appellant provide a 
statutory citation to the provision(s) allegedly violated or that 
USERRA be cited by name to invoke the Board's jurisdiction, however, it 
is inconsistent with the cases cited above. The Board, therefore, is 
amending Sec. 1208.13(a)(3) in this final rule to require a USERRA 
appellant to describe in detail the basis for the appeal, that is, the 
protected right or benefit that was allegedly denied, including 
reference to the provision(s) of chapter 43 of title 38 allegedly 
violated if possible.
    The Board is making one other change to the interim rule with 
respect to a matter not addressed in the public comments. Section 
1208.14, Representation by Special Counsel, permits satisfaction of the 
Board's requirements for designation of a representative by submitting 
a copy of a USERRA appellant's written request to the Secretary of 
Labor that the complaint be referred to the Special Counsel for 
litigation before the Board. Because the Special Counsel can decline to 
represent a USERRA appellant before the Board, however, the appellant's 
written request to the Secretary, standing alone, is not sufficient to 
show that the Special Counsel has agreed to represent the appellant. 
Therefore, the Board is amending Sec. 1208.14 to require submission of 
a written statement (in any format) that the appellant submitted a 
written request to the Secretary of Labor that the appellant's 
complaint be referred to the Special Counsel for litigation before the 
Board and that the Special Counsel has agreed to represent the 
appellant. Such statement will satisfy the Board's designation of 
representative requirements at 5 CFR 1201.31(a).
    The Board is publishing this rule as a final 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.

List of Subjects in 5 CFR Part 1208

    Administrative practice and procedure, Government employees, 
Veterans.

    Accordingly, the Board adopts the interim rule published at 65 FR 
5409 (February 4, 2000) as final, with the following changes:

PART 1208--[AMENDED]

    1. The authority citation for part 1208 continues to read as 
follows:

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


Secs. 1208.11, 1208.12, 1208.13, 1208.23  [Amended]

    2. Amend sections 1208.11(b) and (c), 1208.12, 1208.13(a)(4), and 
1208.23(a)(5)(i) by removing ``the Secretary has been unable to resolve 
the complaint'' each place it appears and by adding in its place ``the 
Secretary's efforts have not resolved the complaint''.

    3. Amend Sec. 1208.13 by revising paragraph (a)(3) to read as 
follows:


Sec. 1208.13  Content of appeal; request for hearing.

    (a) * * *
    (3) A statement describing in detail the basis for the appeal, that 
is, the protected right or benefit that was allegedly denied, including 
reference to the provision(s) of chapter 43 of title 38, United States 
Code, allegedly violated if possible.
* * * * *

    4. Revise section 1208.14 to read as follows:


Sec. 1208.14  Representation by Special Counsel.

    The Special Counsel may represent an appellant in a USERRA appeal 
before the Board. A written statement (in any format) that the 
appellant submitted a written request 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 and that the Special 
Counsel has agreed to represent the appellant will be accepted as the 
written designation of representative required by 5 CFR 1201.31(a).


Sec. 1208.22  [Amended]

    5. Amend Secs. 1208.22(a) and (b) by removing ``the Secretary has 
been unable to resolve the appellant's VEOA complaint'' each place it 
appears and by adding in its place ``the Secretary's efforts have not 
resolved the VEOA complaint''.

    Dated: August 10, 2000.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-20736 Filed 8-15-00; 8:45 am]
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