[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Rules and Regulations]
[Pages 48935-48936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24750]



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Rules and Regulations
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Federal Register / Vol. 62, No. 181 / Thursday, September 18, 1997 / 
Rules and Regulations

[[Page 48935]]


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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 Merit Systems Protection Board (the Board) is amending its 
rules of practice and procedure to prescribe how a Federal employee 
witness in a Board proceeding may obtain a Board order that the 
employing agency grant him or her official time for participation in 
the proceeding. The Board is also amending its rules for enforcement 
proceedings to clarify that those rules apply to proceedings for 
enforcement of orders issued in the course of the Board's adjudicatory 
proceedings, such as an order that an agency provide official time to a 
Federal employee or a protective order to protect a witness from 
harassment, as well as to final Board decisions.

EFFECTIVE DATE: September 18, 1997.

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

SUPPLEMENTARY INFORMATION: The Board's current rules of practice and 
procedure, at 5 CFR 1201.33, provide that a Federal employee who 
appears as a witness in a Board proceeding, or furnishes a sworn 
statement in connection with such a proceeding, ``will be in official 
duty status (i.e., entitled to pay and benefits including travel and 
per diem, where appropriate).'' The current rules, however, provide no 
explicit guidance as to how a Federal employee is to proceed if his or 
her employing agency refuses to provide the official time required by 
section 1201.33.
    The Board's case law has affirmed its authority to provide official 
time to non-parties, but the Board has not addressed the procedures for 
non-parties to claim official time. In re Maisto, 28 M.S.P.R. 436 
(1985); In re Douglas, 32 M.S.P.R. 389 (1987); and Sapp v. U.S. Postal 
Service, 73 M.S.P.R. 189 (1997).
    The Board has the authority to order any Federal employee or agency 
to comply with any order or decision issued by the Board and to enforce 
compliance with any such order. 5 U.S.C. Sec. 1204(a)(2). The Board 
also has the authority to prescribe such regulations as may be 
necessary for the performance of its functions. 5 U.S.C. Sec. 1204(h).
    The Board, therefore, is amending section 1201.33 to prescribe a 
specific procedure for a nonparty Federal employee who is participating 
as a witness in a Board proceeding to obtain from the judge an order 
that the employing agency comply with the official time requirements of 
that section. The procedure requires that the nonparty Federal employee 
submit the request to the judge in writing. The judge is then required 
to act on the request promptly and, where warranted, to order the 
employing agency to comply with the Board's official time regulation.
    Section 1201.33 is amended further to state specifically that a 
judge's order that an agency provide official time as required by that 
section may be enforced as provided under subpart F of part 1201, i.e., 
in the same manner as other Board decisions and orders.
    The Board also is amending its enforcement regulations at section 
1201.182 to clarify that the regulations in subpart F apply to 
enforcement proceedings for all Board orders issued in connection with 
its adjudicatory proceedings, as well as to enforcement proceedings for 
final Board decisions. Both paragraph (a), covering decisions and 
orders issued under the Board's appellate jurisdiction, and paragraph 
(b), covering decisions and orders issued under the Board's original 
jurisdiction, are amended to provide that they apply to both Board 
orders and final decisions.
    The Board is amending section 1201.182 at paragraph (c) to provide 
an exception to the requirement that a nonparty file a motion to 
intervene at the same time as a petition for enforcement where the 
nonparty is a Federal employee witness seeking enforcement of a Board 
order for official time or an individual seeking enforcement of a 
protective order.
    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.

    2. Section 1201.33 is amended by redesignating the existing text as 
paragraph (a) and by adding paragraphs (b) and (c) to read as follows:


Sec. 1201.33  Federal witnesses.

* * * * *
    (b) A Federal employee who is denied the official time required by 
paragraph (a) of this section may file a written request that the judge 
order the employing agency to provide such official time. The judge 
will act on such a request promptly and, where warranted, will order 
the agency to comply with the requirements of paragraph (a) of this 
section.
    (c) An order obtained under paragraph (b) of this section may be 
enforced as provided under subpart F of this part.


Sec. 1201.182  [Amended]

    3. Section 1201.182 is amended at paragraph (a) by adding ``or 
order'' after ``decision'' in the first sentence.
    4. Section 1201.182 is amended at paragraph (b) by removing ``Board 
order'' in the first sentence and by adding in its place ``final Board 
decision or order.''
    5. Section 1201.182 is amended by revising paragraph (c) to read as 
follows:


Sec. 1201.182  Petition for enforcement.

* * * * *
    (c) Petition by an employee other than a party. (1) Under 5 U.S.C. 
1204(e)(2)(B), any employee who is aggrieved by the failure of any 
other employee to comply with an order of the Board may petition the 
Board for enforcement. Except for a petition filed under paragraph 
(c)(2) or (c)(3) of this section, the Board will

[[Page 48936]]

entertain a petition for enforcement from an aggrieved employee who is 
not a party only if the employee seeks and is granted party status as a 
permissive intervenor under Sec. 1201.34(c) of this part. The employee 
must file a motion to intervene at the time of filing the petition for 
enforcement. The petition for enforcement must describe specifically 
why the petitioner believes there is noncompliance and in what way the 
petitioner is aggrieved by the noncompliance. The motion to intervene 
will be considered in accordance with Sec. 1201.34(c) of this part.
    (2) Under Sec. 1201.33(c) of this part, a nonparty witness who has 
obtained an order from a judge that his or her employing agency provide 
the witness with official time may petition the Board for enforcement 
of the order.
    (3) Under Sec. 1201.55(d) of this part, a nonparty witness or other 
individual who has obtained a protective order from a judge during the 
course of a Board proceeding for protection from harassment may 
petition the Board for enforcement of the order.
    (4) A petition for enforcement under paragraph (c)(1), (c)(2), or 
(c)(3) 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.

    Dated: September 12, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-24750 Filed 9-17-97; 8:45 am]
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