[Federal Register Volume 71, Number 114 (Wednesday, June 14, 2006)]
[Rules and Regulations]
[Pages 34231-34232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9239]



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  Federal Register / Vol. 71, No. 114 / Wednesday, June 14, 2006 / 
Rules and Regulations  

[[Page 34231]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Actions Filed by Administrative Law Judges

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its regulation governing actions filed by an administrative 
law judge (ALJ) under 5 U.S.C. 7521 to repeal the standard for 
establishing a constructive removal under the statute that was formerly 
incorporated in the regulation. The standard for establishing a 
constructive removal is addressed in the Board's case law. The amended 
regulation provides procedural guidance for ALJ-initiated actions 
alleging violation of section 7521.

DATES: Effective Date: June 14, 2006.

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 under 5 U.S.C. 7521 to cover actions 
filed by an ALJ rather than an agency. As promulgated in 1997, the 
regulation codified the Board's holding in In re Doyle, 29 M.S.P.R. 170 
(1985), that a sitting ALJ may be constructively removed under 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 overruled Doyle and held that to 
establish a constructive removal the ALJ must have left the position of 
ALJ and must show that the decision to leave was involuntary under the 
test for involuntariness used in appeals under 5 U.S.C. 7512. In a 
consolidated appeal reviewing Tunik and cases following it, the U.S. 
Court of Appeals for the Federal Circuit approved the Board's 
conclusion that the plain language of section 7521 can reasonably 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. 
The court stated that its conclusion did not foreclose the Board from 
repealing the rule in accordance with section 553(b). Tunik v. Merit 
Systems Protection Board, 407 F.3d 1326 (Fed. Cir. 2005).
    Accordingly, the Board proposed this amendment to section 1201.142 
and published it for comments at 70 FR 48081 (August 16, 2005). The 
time for comments was subsequently extended to November 25, 2005, at 70 
FR 61750 (October 16, 2005). The Board has received comments from two 
associations, an agency and two individuals. After careful 
consideration of the comments received, the Board is adopting the rule 
as proposed.
    1. Four of the commenters urged the Board to retain the Doyle 
standard permitting constructive removal actions by sitting ALJs as 
necessary to protect the their decisional independence and the due 
process rights of claimants before them. Two of the commenters argued 
more specifically that under the amended rule punitive actions could be 
taken against ALJs in order to intimidate them from taking actions or 
to get them to alter their decisions.
    The Board does not find this argument persuasive. Congress has 
protected the independence of ALJs by enacting the statutory 
requirement that there be an MSPB finding of good cause before a 
removal from the position of ALJ (or other specified adverse action) 
can be taken. Since the Board's case law precludes a finding of good 
cause under section 7521 for an action based on how an ALJ decides a 
case, this protection permits ALJs to resist the most serious agency 
pressures that could undermine their independence. The Board sees no 
justification for extending its jurisdiction to provide additional 
protection beyond what Congress has provided through the authority 
given to the Board in the statute.
    2. One commenter suggested that the amended regulation is 
inconsistent with the definition of removal under section 7521 found in 
5 CFR 930.202(f) because under that regulation of the Office of 
Personnel Management, the definition includes reassignment to a non-ALJ 
position.
    This suggestion is based on a mistake. The amended regulation 
requires involuntary separation from the position of ALJ, not 
separation from the civil service. Reassignment to a non-ALJ position 
is clearly covered by the new standard, which is therefore not 
inconsistent with the definition in Sec.  930.202(f).
    3. One commenter suggested that the amended rule is unnecessary 
because the Board's decisions applying the Doyle standard have not 
found a constructive removal in cases involving routine management 
actions. This commenter suggested that the Doyle standard should be 
retained because it has deterred agency interference with ALJ 
independence. The commenter also suggested that under the new standard, 
sitting ALJs may, instead, challenge interference with their 
independence through actions based on the First Amendment in district 
court, with an adverse effect on judicial economy due to the loss of 
the Board's expertise in the decision of those cases.
    The Board finds that the fact that its case law under the Doyle 
standard is largely made up of nonmeritorious cases is not a reason for 
retaining the old standard, nor does it show that the old standard has 
deterred improper agency actions. Moreover, in Tunik the court approved 
the Board's determination that it was unlikely that in enacting section 
7521 Congress intended to require agencies to obtain a good cause 
finding from the Board before taking such routine actions as assigning 
cases and implementing training requirements. Tunik, 407 F.3d at 1340. 
The Board finds that, to whatever extent the First Amendment rights of 
ALJs are actionable in district court, it has no bearing on the Board's 
interpretation of section 7521.
    4. One commenter suggested that the Doyle standard should be 
retained in order to permit sitting ALJs to claim constructive removal 
based on alleged

[[Page 34232]]

violations of the case assignment rotation requirement in 5 U.S.C. 
3105.
    The Board finds that this suggestion fails to state a persuasive 
objection to the amendment of its regulation since the revised standard 
would permit consideration of an ALJ's involuntary resignation claim 
that is based on the agency's improper interference with his 
decisionmaking by assigning cases out of rotation.
    5. One commenter supports the proposed amendment and urges the 
Board to provide upon issuance of the amended regulation that it will 
be applicable to pending cases.
    The Board finds that retroactive application of the amended 
regulation would be contrary to the court's decision in Tunik, which 
held that the cases in that consolidated appeal were subject to the 
standard stated in the former regulation because it could not be 
repealed in an adjudication. Under Bowen v. Georgetown University 
Hospital, 488 U.S. 204 (1988), the Board must have express statutory 
authority to make a substantive rule retroactive, authority which the 
Board does not have. The amended regulation that the Board is issuing 
is such a rule because it repeals the substantive standard for 
constructive removal stated in the old regulation and makes effective 
the standard for such a removal now contained in the Board's case law.

List of Subjects in 5 CFR Part 1201

    Administrative personnel, Actions against administrative law 
judges, Actions filed by administrative law judges.

0
For the reasons set forth in the Preamble, the MSPB is amending 5 CFR 
part 1201 as follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 5 CFR part 1201 is revised to read as 
follows:

    Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.


0
2. Accordingly, the Board revises 5 CFR 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 5 CFR 1201.37 apply. Such complaints shall be 
adjudicated in the same manner as agency complaints under this subpart.

    Dated: June 8, 2006.
Bentley M. Roberts, Jr.,
Clerk of the Board.
[FR Doc. E6-9239 Filed 6-13-06; 8:45 am]
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