[Federal Register Volume 73, Number 25 (Wednesday, February 6, 2008)]
[Rules and Regulations]
[Pages 6833-6834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2104]



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  Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / 
Rules and Regulations  

[[Page 6833]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1207


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules of practice and procedure to clarify a number of 
matters: That the date of receipt of an agency decision is date on 
which the petitioner receives it; that a witness who is not a federal 
employee may obtain an order requiring the payment of witness fees; 
that the time for filing a petition for review begins on the date the 
initial decision is first received by either the appellant or the 
representative; and that complaints of discrimination must be clearly 
marked as raising such an issue. The Board also amends its mixed case 
procedures to make clear that any case older than 120 days is subject 
to the 30 day filing requirement once the appellant receives the 
agency's final decision. The Board also deletes an outdated reference 
to Appendix 1.

DATES: Effective Date: February 6, 2008.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, 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 is amending its rules of practice 
and procedure in 5 CFR part 1201 and 5 CFR Part 1207 as follows:
    Section 1201.22(b)(1) is amended to make clear that the date of 
receipt of the agency's decision is the date on which the petitioner 
receives the decision;
    Section 1201.37(d) and (e) and 1201.182(c) are amended to state 
that a witness who is not a federal employee may obtain an order 
requiring the payment of witness fees and may file a petition for 
enforcement of such an order.
    Section 1201.114(d) is amended to make clear that the time for 
filing a petition for review begins to run from the date of receipt of 
the initial decision by either the appellant or the representative, 
whichever comes first. The rule is consistent with that followed by the 
Federal Circuit with respect to petitions for judicial review. See 
Monzo v. Department of Transportation, 735 F.2d 1335 (Fed. Cir. 1984);
    1201.154(a) & (d) are amended to make clear that the date of 
receipt of the agency's decision is the date on which the petitioner 
receives the decision;
    1201.154(b)(2) is amended to make clear that an agency case older 
than 120 days is subject to the 30 day filing requirement once the 
appellant receives the agency's final decision. This amendment 
addresses an issue that arose in Paine v. MSPB, 467 F.3d 1344 (2006).
    1207.170(b)(2) & (4) are amended to ensure that MSPB administrative 
judges and the Board are aware that a party is raising a complaint of 
discrimination in the adjudication of a Board case.

List of Subjects

5 CFR Part 1201

    Administrative practice and procedure, Government employees.

5 CFR Part 1207

    Administrative practice and procedure, Government employees.


0
Accordingly, the Board amends 5 CFR parts 1201 and 1207 as follows:

PART 1201--[AMENDED]

0
1. The authority citation for part 1201 continues to read as follows:

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


0
2. Revise Sec.  1201.22(b)(1) to read as follows:


Sec.  1201.22  Filing an appeal and responses to appeals.

* * * * *
    (b) * * *
    (1) Except as provided in paragraph (b)(2) of this section, an 
appeal must be filed no later than 30 days after the effective date, if 
any, of the action being appealed, or 30 days after the date of the 
appellant's receipt of the agency's decision, whichever is later. Where 
an appellant and an agency mutually agree in writing to attempt to 
resolve their dispute through an alternative dispute resolution process 
prior to the timely filing of an appeal, however, the time limit for 
filing the appeal is extended by an additional 30 days--for a total of 
60 days. A response to an appeal must be filed within 20 days of the 
date of the Board's acknowledgment order. The time for filing a 
submission under this section is computed in accordance with Sec.  
1201.23 of this part.
* * * * *

0
3. In Sec.  1201.37, add paragraphs (d) and (e) as follows:


Sec.  1201.37  Witness fees.

* * * * *
    (d) A witness who is denied the witness fees and travel costs 
required by paragraphs (b) and (c) of this section may file a written 
request that the judge order the party who requested the presence of 
the witness to provide such fees and travel costs. The judge will act 
on such a request promptly and, where warranted, will order the party 
to comply with the requirements of paragraphs (b) and (c) of this 
section.
    (e) An order obtained under paragraph (d) of this section may be 
enforced as provided under subpart F of this part.

0
4. Revise Sec.  1201.114(d) to read as follows:


Sec.  1201.114  Filing petition and cross petition for review.

* * * * *
    (d) Time for filing. Any petition for review must be filed within 
35 days after the date of issuance of the initial decision or, if the 
petitioner shows that the initial decision was received more than 5 
days after the date of issuance, within 30 days after the date the 
petitioner received the initial decision. If the petitioner is 
represented, the 30-day time period begins to run upon receipt of the 
initial decision by either the representative or the petitioner, 
whichever comes first. A cross petition for review must be filed within 
25 days of the date of service of the petition for review. Any response 
to a petition for review or to a cross petition for review must be 
filed within 25 days after the

[[Page 6834]]

date of service of the petition or cross petition.
* * * * *

0
5. Amend Sec.  1201.154 by revising paragraphs (a), (b)(2), and (d) to 
read as follows:


Sec.  1201.154  Time for filing appeal; closing record in cases 
involving grievance decisions.

* * * * *
    (a) Where the appellant has been subject to an action appealable to 
the Board, he or she may either file a timely complaint of 
discrimination with the agency or file an appeal with the Board no 
later than 30 days after the effective date, if any, of the action 
being appealed, or 30 days after the date of the appellant's receipt of 
the agency's decision on the appealable action, whichever is later.
    (b) * * *
    (2) If the agency has not resolved the matter or issued a final 
decision on the formal complaint within 120 days, the appellant may 
appeal the matter directly to the Board at any time after the 
expiration of 120 calendar days. Once the agency resolves the matter or 
issues a final decision on the formal complaint, an appeal must be 
filed within 30 days after the appellant receives the agency resolution 
or final decision on the discrimination issue.
* * * * *
    (d) This paragraph does not apply to employees of the Postal 
Service or to other employees excluded from the coverage of the federal 
labor-management relations laws at chapter 71 of title 5, United States 
Code. If the appellant has filed a grievance with the agency under a 
negotiated grievance procedure, he may ask the Board to review the 
final decision on the grievance if he alleges before the Board that he 
is the victim of prohibited discrimination. Usually, the final decision 
on a grievance is the decision of an arbitrator. A full description of 
an individual's right to pursue a grievance and to request Board review 
of a final decision on the grievance is found at 5 U.S.C. 7121 and 
7702. The appellant's request for Board review must be filed within 35 
days after the date of issuance of the decision or, if the appellant 
shows that he or she received the decision more than 5 days after the 
date of issuance, within 30 days after the date the appellant received 
the decision. The appellant must file the request with the Clerk of the 
Board, Merit Systems Protection Board, Washington, DC 20419. The 
request for review must contain:
    (1) A statement of the grounds on which review is requested;
    (2) References to evidence of record or rulings related to the 
issues before the Board;
    (3) Arguments in support of the stated grounds that refer 
specifically to relevant documents, and that include relevant citations 
of authority; and
    (4) Legible copies of the final grievance or arbitration decision, 
the agency decision to take the action, and other relevant documents. 
Those documents may include a transcript or tape recording of the 
hearing.
* * * * *

0
6. Amend Sec.  1201.182 as follows:
0
a. Redesignate paragraphs (c)(3) and (c)(4) as paragraphs (c)(4) and 
(c)(5) respectively.
0
b. Add new paragraph (c)(3) and revise newly redesignated paragraph 
(c)(5) to read as follows:


Sec.  1201.182  Petition for enforcement.

* * * * *
    (c) * * *
    (3) Under Sec.  1201.37(e) of this part, a nonparty witness who has 
obtained an order requiring the payment of witness fees and travel 
costs may petition the Board for enforcement of the order.
* * * * *
    (5) A petition for enforcement under paragraph (c)(1), (c)(2), 
(c)(3) or (c)(4) of this section must be filed promptly with the 
regional or field office that issued the order or, if the order was 
issued by the Board, with the Clerk of the Board. The petitioner must 
serve a copy of the petition on each party or the party's 
representative. If the petition is filed under paragraph (c)(1) of this 
section, the motion to intervene must be filed and served with the 
petition.

PART 1207--[AMENDED]

0
7. The authority citation for part 1207 continues to read as follows:

    Authority: 29 U.S.C. 794.


0
8. Amend Sec.  1207.170 by revising paragraphs (b)(2) and (b)(4) to 
read as follows:


Sec.  1207.170  Compliance procedures.

* * * * *
    (b) * * *
    (2) An allegation of discrimination in the adjudication of a Board 
case must be raised within 10 days of the alleged act of discrimination 
or within 10 days from the date the complainant should reasonably have 
known of the alleged discrimination. If the complainant does not submit 
a complaint within that time period, it will be dismissed as untimely 
filed unless a good reason for the delay is shown. The pleading must be 
clearly marked ``5 CFR part 1207 allegation of discrimination in the 
adjudication of a Board case.''
* * * * *
    (4) If the judge to whom the case was assigned has issued the 
initial decision, recommended decision, or recommendation by the time 
the party learns of the alleged discrimination, the party may raise the 
allegation in a petition for review, cross petition for review, or 
response to the petition or cross petition. The petition for review, 
cross petition for review or response to the petition or cross petition 
must be clearly marked ``5 CFR part 1207 allegation of discrimination 
in the adjudication of a Board case.''
* * * * *

    Dated: January 31, 2008.
William D. Spencer,
Clerk of the Board.
 [FR Doc. E8-2104 Filed 2-5-08; 8:45 am]
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