[Federal Register Volume 70, Number 157 (Tuesday, August 16, 2005)]
[Proposed Rules]
[Page 48081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16217]


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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. 70, No. 157 / Tuesday, August 16, 2005 / 
Proposed Rules  

[[Page 48081]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Proposed Amendment to the Rule Regarding the Filing of 
Constructive Removal Complaints by Administrative Law Judges

AGENCY: Merit Systems Protection Board.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Merit Systems Protection Board (MSPB or ``the Board'') is 
revising its regulation governing actions filed by an administrative 
law judge (ALJ) who alleges a constructive removal under 5 U.S.C. 7521. 
The revision repeals the standard stated by the regulation for 
establishing such a removal in light of the Board's determination in 
recent cases that the ALJ must show involuntary separation from the 
position of ALJ. As discussed below, the revised standard for 
establishing the constructive removal of an ALJ is addressed in the 
Board's cases and will not be incorporated in the revised regulation, 
which is retained solely to provide procedural guidance for ALJ-
initiated actions alleging violation of section 7521.

DATES: Written comments should be submitted on or before October 17, 
2005.

ADDRESSES: Send or deliver comments to the Office of Clerk of the 
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., 
Washington, DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Bentley M. Roberts, Jr., Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, 
DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: The Board added 5 CFR 1201.142 to its 
regulations governing actions against ALJs ``to cover the situation in 
which a complaint is filed by an administrative law judge rather than 
an agency.'' 62 FR 48450 (Sept. 16, 1997). As promulgated, section 
1201.142 provides that an ALJ ``who alleges that an agency has 
interfered with the judge's qualified decisional independence so as to 
constitute an unauthorized action under 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart.'' The regulation reflects 
the Board's holding in In re Doyle, 29 M.S.P.R. 170 (1985), that an ALJ 
may be constructively removed for purposes of 5 U.S.C. 7521 by agency 
actions that interfere with the ALJ's qualified decisional 
independence.
    In Tunik v. Social Security Administration, 93 M.S.P.R. 482 (2003), 
the Board held that to establish a constructive removal on this basis 
the ALJ must also be separated from the position of ALJ. The Board 
based its decision on the ordinary meaning of ``removal'' and the need 
to read this term consistently with the interpretation given by the 
case law to the same term in 5 U.S.C. 7512. The Tunik holding was 
followed by the Board in Dethloff v. Social Security Administration, 93 
M.S.P.R. 574 (2003), and Schloss v. Social Security Administration, 93 
M.S.P.R. 578 (2003).
    The U.S. Court of Appeals for the Federal Circuit reviewed the 
Board's Tunik, Dethloff, and Schloss decisions in a consolidated 
appeal, Tunik v. Merit Systems Protection Board, Nos. 03-3286, -3330, -
3331 (Fed. Cir. May 11, 2005). The court agreed with the Board's 
conclusion that the plain language of section 7521 reasonably can be 
read to apply only to cases of actual separation from employment as an 
ALJ. However, the court found that because 5 CFR 1201.142 was issued 
pursuant to the notice and comment requirements of 5 U.S.C. 553, the 
Board lacked authority to overrule the regulation in an adjudication, 
outside the procedural requirements of section 553(b). The court 
reversed in part, vacated in part, and remanded the case, finding that 
the regulation incorporating the Doyle standard applied to the 
petitioners whose claims were not moot. However, the court stated that 
its conclusion did not foreclose the Board from repealing the rule in 
accordance with section 553(b).
    Accordingly, the Board is proposing to revise section 1201.142 to 
delete the stated standard for establishing constructive removal of an 
ALJ and thereby to repeal the Doyle rule. The revised regulation will 
be retained solely to provide procedural guidance for an ALJ who wishes 
to file a complaint alleging constructive removal or other violation of 
section 7521. The standard for establishing a constructive removal 
claim is set forth in Tunik v. Social Security Administration, 93 
M.S.P.R. at 493: the ALJ must establish ``that his decision to leave 
the position of ALJ was involuntary under the test for involuntariness 
used for appeals implicating section 7512.'' Reference should be made 
to the Board's developing case law for further elaboration of this 
standard in connection with claims based on interference with an ALJ's 
qualified decisional independence.

List of Subjects in 5 CFR Part 1201

    Administrative personnel, Actions against administrative law 
judges, Actions filed by administrative law judges.
    For the reasons set forth in the Preamble, the MSPB proposes to 
amend 5 CFR 1201.142 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.

Subpart D--Procedures for Original Jurisdiction Cases

    2. Revise Sec.  1201.142 to read as follows:


Sec.  1201.142  Actions filed by administrative law judges.

    An administrative law judge who alleges a constructive removal or 
other action by an agency in violation of 5 U.S.C. 7521 may file a 
complaint with the Board under this subpart. The filing and serving 
requirements of Sec.  1201.37 apply. Such complaints shall be 
adjudicated in the same manner as agency complaints under this subpart.

Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. 05-16217 Filed 8-15-05; 8:45 am]
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