[Federal Register Volume 65, Number 246 (Thursday, December 21, 2000)]
[Rules and Regulations]
[Pages 80279-80280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32503]



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  Federal Register / Vol. 65, No. 246 / Thursday, December 21, 2000 / 
Rules and Regulations  

[[Page 80279]]



GENERAL ACCOUNTING OFFICE

4 CFR Part 28


Personnel Appeals Board; Procedural Rules

AGENCY: General Accounting Office Personnel Appeals Board.

ACTION: Final rule.

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SUMMARY: The General Accounting Office Personnel Appeals Board hereby 
amends 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, if the Board's General Counsel has not yet 
completed the investigation of the charge and issued a Right to Appeal 
Letter. This amendment offers employees an option for expedited 
processing and conforms Board procedures with those of other agencies 
that hear employment-related appeals.

DATES: This final rule is effective December 21, 2000.

ADDRESSES: General Accounting Office Personnel Appeals Board, Suite 
560, Union Center Plaza II, 441 G Street, NW., Washington, DC 20548.

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

SUPPLEMENTARY INFORMATION: The General Accounting Office Personnel 
Appeals 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, except in cases 
involving a Reduction in Force, an employee must first file a charge 
with the Board's General Counsel. 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 will 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 current 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. In other agencies that hear employment-related 
appeals, employees are able to ``opt-out'' of the investigative phase 
and proceed directly to the hearing stage after they have waited a 
certain period of time.
    The Board believes that the approach taken by these agencies is a 
reasonable and fair one. It therefore is adopting a similar approach 
for cases within its jurisdiction. The Board published this rule as a 
proposed rule on August 30, 2000 (65 FR 52674), and invited comments by 
October 30, 2000. One comment from a current litigant before the Board, 
supporting the proposed rule, was received within the comment period. 
The proposed rule is adopted as a final rule without change.
    Under the final rule set forth below, GAO employees 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. Thus, no 
employee will have to wait more than 180 days to have the opportunity 
to present his or her case to an administrative judge. The amendments 
do not require an employee to file with the Board as soon as the 180-
day period has expired; he or she may file at any time after 180 days 
have passed, so long as no ``Right to Appeal'' letter has been issued. 
An employee still retains the right to wait for the General Counsel to 
complete the investigation, before going forward.
    Under the final 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 final 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 final 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.
    The Personnel Appeals Board certifies under 5 U.S.C. 605(b), 
enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this 
rule will not have a significant economic impact on a substantial 
number of small entities, because it applies exclusively to employees 
and applicants for employment at the General Accounting Office. For 
this reason, a regulatory flexibility analysis is not required.

List of Subjects in 4 CFR Part 28

    Administrative practice and procedure, Claims, Equal employment 
opportunity, Government employees, Labor-management relations.

[[Page 80280]]


    For the reasons stated in the foregoing preamble, the General 
Accounting Office Personnel Appeals Board amends 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, U.S. General Accounting Office.
[FR Doc. 00-32503 Filed 12-20-00; 8:45 am]
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