[Federal Register Volume 62, Number 158 (Friday, August 15, 1997)]
[Rules and Regulations]
[Page 43631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21647]



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Rules and Regulations
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Federal Register / Vol. 62, No. 158 / Friday, August 15, 1997 / Rules 
and Regulations

[[Page 43631]]


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MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: The Board is amending its rules of practice and procedure to 
rescind its rule requiring dismissal of an agency's petition for review 
of an administrative judge's initial decision where the agency 
inadvertently exceeds the requirements of the judge's interim relief 
order. The Board will no longer dismiss the agency's petition in such a 
circumstance where its action was taken in good faith. The Board 
announced the rescission of this rule in Silvana H. Moscato v. 
Department of Education, issued November 12, 1996, and suspended the 
application of the rule effective from that date.

EFFECTIVE DATE: August 15, 1997.

FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board, 
202-653-7200.

SUPPLEMENTARY INFORMATION: Under 5 U.S.C. 7701(b)(2), an appellant who 
prevails in an appeal to the Board is entitled to the relief provided 
in the administrative judge's initial decision pending the outcome of 
any petition for review by the Board. This interim relief is to be 
provided effective from the date of the initial decision. Interim 
relief is not provided if the judge determines that it is not 
appropriate or if the initial decision requires the appellant's return 
to or presence at the workplace and the agency determines that such 
return or presence would be unduly disruptive. This interim relief 
provision was added to Title 5 of the United States Code by the 
Whistleblower Protection Act of 1989 (Pub. L. 101-12).
    Some Federal agencies attempting to comply with an initial decision 
providing interim relief have cancelled the personnel action that the 
appellant appealed and have furnished evidence of that cancellation 
when filing a petition for review. From the time the interim relief 
provision took effect in July 1989 until November 1996, the Board 
consistently held that, where an agency exceeds the order for interim 
relief by cancelling the appealed action and thus providing final 
relief, the matter is effectively removed from controversy, and the 
agency's petition for review is rendered moot. See, e.g., Edney v. 
Department of the Treasury, 56 M.S.P.R. 248, 249-50 (1993). On June 16, 
1994, the Board amended its rules of practice and procedure at 5 CFR 
1201.115(b)(1) to incorporate this holding in its procedural 
regulations. 59 FR 30863.
    In November 1996, the Board considered this issue further in its 
adjudication of Silvana H. Moscato v. Department of Education, 72 
M.S.P.R. 266 (1996). In its decision in that case, the Board cited a 
number of appellate court decisions that declined to dismiss a case as 
moot even where one of the parties apparently provided relief or 
complied with a judgment, if the party did not intend to forego further 
legal proceedings. Id. at 6-8. In announcing its decision that it will 
no longer automatically dismiss an agency's petition for review as moot 
where the agency has inadvertently and in good faith exceeded an 
interim relief order, the Board stated: ``We find that the Board and 
prudent policy are ill-served by such an automatic dismissal, where the 
agency attempted to comply with an order of interim relief, mistakenly 
exceeded the Board's requirements, did not abandon its intent to go 
forward, and then took steps to correct its mistake in a timely 
manner.'' Id. at 6.
    In its decision in Moscato, the Board announced that it was 
suspending the application of the last sentence of 5 CFR 
1201.115(b)(1), which required automatic dismissal of an agency's 
petition for review where it exceeded the requirements of an interim 
relief order. Id. at 9. The Board further stated that it would apply 
the new rule announced in its decision, i.e., that it would no longer 
dismiss an agency's petition as moot under these circumstances, in all 
cases relating to the regulation at 5 CFR 1201.115(b)(1) and that it 
would amend its regulations to reflect the new rule. Id. The notice the 
Board publishes today makes that amendment.
    The Board is publishing this rule as a final rule pursuant to 5 
U.S.C. 1204(h).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    Accordingly, the Board amends 5 CFR part 1201 as follows:

PART 1201--[AMENDED]

    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.


Sec. 1201.115  [Amended]

    2. Section 1201.115 is amended at paragraph (b)(1) by removing the 
last sentence.

    Dated: August 11, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-21647 Filed 8-14-97; 8:45 am]
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