[Federal Register Volume 65, Number 169 (Wednesday, August 30, 2000)]
[Proposed Rules]
[Pages 52674-52675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22080]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 65, No. 169 / Wednesday, August 30, 2000 / 
Proposed Rules  

[[Page 52674]]



GENERAL ACCOUNTING OFFICE

4 CFR Part 28


Personnel Appeals Board; Procedural Rules

AGENCY: General Accounting Office Personnel Appeals Board.

ACTION: Proposed rule.

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SUMMARY: The General Accounting Office Personnel Appeals Board proposes 
to amend its regulations to permit charging parties to bring their 
cases directly to the Board after the passage of 180 days from the 
filing of the charge, if the Board's General Counsel has not yet 
completed the investigation of the charge and issued a Right to Appeal 
Letter. This amendment would conform Board procedures with those of 
other agencies that hear employment-related appeals. The Board invites 
public comments on this proposed change.

DATES: Comments must be received on or before October 30, 2000 in order 
to be considered.

ADDRESSES: Comments may be mailed to: Clerk, General Accounting Office 
Personnel Appeals Board, Suite 560, Union Center Plaza II, 441 G Street 
NW., Washington, DC 20548. Comments may also be submitted by facsimile 
transmission to 202-512-7525.

FOR FURTHER INFORMATION CONTACT: Beth Don, Executive Director, 202-512-
6137.

SUPPLEMENTARY INFORMATION: The General Accounting Office Personnel 
Appeals Board is authorized by Congress to hear and decide certain 
employment-related cases brought by GAO employees. Some of the matters 
that may be heard by the Board include: appeals from removals and 
suspensions for more than 14 days, allegations that agency officials 
have engaged or are engaging in prohibited personnel practices, claims 
of employment discrimination based on race, color, religion, age, sex, 
national origin, political affiliation, marital status, or disability, 
and cases concerning the right of employees to engage in collective 
bargaining. The Board performs for GAO employees the functions 
performed in the executive branch by the Merit Systems Protection 
Board, the Equal Employment Opportunity Commission, and the Federal 
Labor Relations Authority.
    In order to bring a case before the Board, an employee must first 
file a charge with the Board's General Counsel. (The only exception to 
this rule is for cases involving a Reduction in Force.) The General 
Counsel investigates the charge and determines whether there are 
reasonable grounds to believe that the employee's rights have been 
violated. At the end of the investigation, the General Counsel issues 
to the employee a ``report and recommendation'' that explains the 
results of the investigation. If the General Counsel finds that there 
are reasonable grounds to believe that the employee's rights have been 
violated, then the General Counsel offers to represent the employee in 
a proceeding before the Board. If the General Counsel does not find 
``reasonable grounds,'' the General Counsel may not represent the 
employee. The employee, however, may still bring the case to the Board 
by representing him- or herself, or by obtaining private 
representation. Accompanying the report and recommendation, whether 
favorable or unfavorable, is a ``Right to Appeal'' Letter which permits 
the employee to file a petition for review with the Board.
    Under the Board's present regulations, an employee may not bring 
his or her complaint to the Board until the General Counsel's 
investigation is completed and the employee has received a ``Right to 
Appeal'' Letter. The only exception is for employees separated as a 
result of a Reduction in Force. The Board's procedures contrast with 
the procedures in effect at other agencies that hear employment-related 
appeals. A number of other agencies provide a means for employees to 
``opt-out'' of the investigative phase and proceed directly to the 
hearing stage after they have waited a certain period of time. For 
example, under the regulations of the Equal Employment Opportunity 
Commission (EEOC), private employees do not have to await the 
completion of the EEOC investigation before taking their cases to 
court. After the passage of 180 days, an employee may request a ``right 
to sue'' notice from the EEOC and may then have the case heard in 
federal district court. See 29 CFR 1601.28. Similarly, federal 
employees in the executive branch do not have to wait indefinitely for 
the conclusion of the agency investigation into their equal employment 
opportunity complaints. If the employing agency has not completed the 
investigation within 180 days, then the employee may immediately 
request a hearing on the complaint. See 29 CFR 1614.108(g). The Merit 
Systems Protection Board (MSPB) also allows employees complaining of 
discrimination to request a hearing if they have waited for 120 days 
and have not yet received a decision from their agency on their 
complaint. See 5 CFR 1201.154(b)(2). In case alleging retaliation 
against whistleblowers, an employee may request a hearing before the 
MSPB if the Office of Special Counsel has not completed its 
investigation of the matter within 120 days. See 5 CFR 1209.5(a)(2). 
Within GAO itself, the agency permits employees to file appeals with 
the Board concerning equal employment opportunity cases, if GAO has not 
completed its investigation of the matter within 120 days, or to file a 
civil action in federal district court if such as case investigation 
has not been completed within 180 days. See GAO Order 2713.2 ch. 6, 
Paras. 2, 4 (Dec. 2, 1997).
    The Board believes that the approach taken by these agencies is a 
reasonable and fair one. It therefore proposes to adopt a similar 
approach for cases within its jurisdiction. Under the proposed rule set 
forth below, GAO employees will have the option of bringing their cases 
directly to the Board if 180 days have passed and the Board's General 
Counsel has not yet completed the investigation and issued a ``Right to 
Appeal'' Letter concerning their case. If the proposal is adopted, no 
employee will have to wait for more than 180 days to have the 
opportunity to present his or her case to an administrative judge.
    The proposed amendments do not require an employee to file with the 
Board as soon as the 180-day period has expired. An employee would 
still retain the right to wait for the General Counsel to complete the 
investigation, before going forward. The proposed regulation gives 
employees a choice: after 180 days they may either go directly to the 
Board

[[Page 52675]]

or wait for the conclusion of the investigation.
    Under the proposed regulations, certain consequences flow from an 
employee's decision to file a petition for review with the Board before 
the completion of the General Counsel's investigation. First, the 
investigation by the Board's General Counsel would be terminated as 
soon as the employee files a petition for review with the Board. The 
General Counsel would not gather any further evidence after that point, 
and the employee would not receive a report from the General Counsel 
analyzing the facts or law relevant to the employee's case. Second, the 
Board's rules only permit the General Counsel to represent employees 
before the Board if the General Counsel completes the investigation and 
finds ``reasonable grounds'' to believe that the charge is true. Under 
the proposed regulations, therefore, an employee who ``opts out'' of 
the investigation after 180 days, and files directly with the Board, 
would forego the opportunity to have the General Counsel present his or 
her case to the Board. Such an employee could either represent him- or 
herself, or obtain private representation.
    The Board believes that these consequences are necessary features 
of its proposed regulation. While the Board wishes to extend a choice 
to employees, it does not believe that it would be justifiable to 
permit employees to go forward before both the General Counsel's Office 
and the Board simultaneously. Nor would it be appropriate to permit an 
employee to be represented at public expense in the absence of a 
finding of reasonable cause by the General Counsel

List of Subjects in 4 CFR Part 28

    Administrative practice and procedure, Equal employment 
opportunity, Government employees, Labor-management relations.
    For the reasons stated in the foregoing preamble, the General 
Accounting Office Personnel Appeals Board proposes to amend 4 CFR 
Chapter I, Subchapter B, Part 28 as follows:

PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GENERAL ACCOUNTING OFFICE

    1. The authority citation for Part 28 continues to read as follows:

    Authority: 31 U.S.C. 753.

    2. Amend Sec. 28.12 by adding a new paragraph (g) to read as 
follows:


Sec. 28.12  General Counsel procedures.

* * * * *
    (g) If 180 days have elapsed since the filing of the charge, and 
the General Counsel has not completed the investigation and issued a 
Right to Appeal Letter, the charging party may bring his or her case 
directly to the Board by filing a petition for review in accordance 
with Sec. 28.18. If a charging party exercises this option to file a 
petition for review with the Board without waiting for the completion 
of the investigation, the General Counsel shall not represent the 
charging party in proceedings before the Board. The charging party may 
represent him- or herself or obtain other representation. The General 
Counsel shall close the investigation of the charge upon being notified 
by the Clerk of the Board that the charging party has filed a petition 
for review with the Board under this paragraph (g).
    3. Amend Sec. 28.18 by revising paragraphs (a) and (b) to read as 
follows:


Sec. 28.18  Filing a petition for review with the Board.

    (a) Who may file. Any person who is claiming to be affected 
adversely by GAO action or inaction that is within the Board's 
jurisdiction under subchapter IV of chapter 7 of title 31, United 
States Code, or who is alleging that GAO or a labor organization 
engaged or is engaging in an unfair labor practice, may file a petition 
for review if one of the following is met:
    (1) The person has received a Right to Appeal Letter from the 
Board's General Counsel; or
    (2) At least 180 days have elapsed from the filing of the charge 
with the Board's General Counsel and the General Counsel has not issued 
a Right to Appeal Letter; or
    (3) The person was separated due to a Reduction in Force and 
chooses to file an appeal directly with the Board, without first filing 
with the Board's General Counsel, as provided in Sec. 28.13.
    (b) When to file. (1) Petitions for review filed pursuant to 
paragraph (a)(1) of this section must be filed within 30 days after 
service upon the charging party of the Right to Appeal Letter from the 
Board's General Counsel.
    (2) Petitions for review filed pursuant to paragraph (a)(2) of this 
section may be filed at any time after 180 days have elapsed from the 
filing of the charge with the Board's General Counsel, provided that 
the General Counsel has not issued a Right to Appeal Letter concerning 
the charge.
    (3) Petitions for review filed pursuant to paragraph (a)(3) of this 
section must be filed within 30 days after the effective date of the 
separation due to a Reduction in Force.
* * * * *

Michael Wolf,
Chair, Personnel Appeals Board, General Accounting Office.
[FR Doc. 00-22080 Filed 8-29-00; 8:45 am]
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