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Rules and Regulations Federal Register

59991

Vol. 62, No. 215

Thursday, November 6, 1997

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Merit Systems Protection

Board is amending its rules of practice

and procedure to change its time limits

for filing appeals and petitions for

review of initial decisions issued by

MSPB judges. The amendments to the

time limits for filing appeals are

intended to ensure that an appellant has

a full 30 days to file after the event from

which the time period begins to run.

The amendment to the time limit for

filing a petition for review is intended

to ensure that a petitioner has a full 30

days to file after the date of receipt of

the initial decision issued by the judge.

The purpose of these amendments is to

provide guidance to the parties to MSPB

cases and their representatives regarding

filing requirements. The Board is

simultaneously amending its rules at 5

CFR part 1209 with respect to the time

limits for filing whistleblower appeals.

EFFECTIVE DATE: November 6, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The Board

is authorized by 5 U.S.C. 1204(h) to

promulgate regulations to carry out its

functions and has used this authority

since its inception to prescribe time

limits for filing appeals with the Board.

Prior to this amendment, the regulation

at 5 CFR 1201.22(b), prescribing time

limits for filing an appeal, required that

an appeal of an agency action be filed

no later than 30 days after the effective

date of the action or, where the appeal

is from a final or reconsideration

decision that does not set an effective

date, no later than 35 days after the date

of issuance of the agency’s decision. In

establishing the 35-day time limit where

the appeal is from a final or

reconsideration decision that does not

set an effective date, the Board, in effect,

was providing the same 30-day time

period for filing as in an appeal of an

action with an effective date by allowing

5 additional days after the date of

issuance of the decision for it to be

mailed and received.

Where the 35-day time limit applies

and there is a delay by the agency in

mailing the decision after it is issued,

and/or a delay by the U.S. Postal Service

that results in more than 5 days elapsing

between issuance of the decision and

receipt by the appellant, an appellant

could have less than 30 days to file an

appeal with MSPB. Should an appellant

not receive the agency’s decision until

after the 35-day time period for filing

has expired, any appeal may be

dismissed as untimely.

In order to ensure that each appellant,

regardless of the nature of the action or

decision being appealed, has a full 30

days to file after the event from which

the time period begins to run, the Board

is amending its regulation at 5 CFR

1201.22(b) to require that an appeal 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

receipt of the agency’s decision,

whichever is later.

The Board is making corresponding

amendments to 5 CFR 1201.27(b),

regarding the time limit for filing

individual appeals after a judge has

denied a request for hearing as a class

appeal, and 5 CFR 1201.154(a),

regarding the time limit for filing an

appeal in which discrimination is

alleged (a mixed case appeal).

Prior to this amendment, the

regulation at 5 CFR 1201.114(d),

prescribing the time limit for filing a

petition for review of a judge’s initial

decision, required that the petition for

review be filed with the Clerk of the

Board within 35 days after the initial

decision is issued. This regulation was

based on the statutory requirement at 5

U.S.C. 7701(e)(1)(A) that a petition for

review be filed no later than 30 days

after the party’s receipt of the initial

decision. Again, the Board was allowing

in its regulation an additional 5 days

from the date of issuance of the initial

decision for mailing and receipt by the

parties.

To ensure that every party has a full

30 days from the date of receipt of an

initial decision to file a petition for

review of that decision, the Board is

amending its regulation at 5 CFR

1201.114(d) to require that a petition for

review be filed within 35 days after the

initial decision is issued 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. The Board is making

conforming amendments to 5 CFR

1201.113(a) and (d) by removing the

references to a 35-day time limit for

filing.

The Board is not amending 5 CFR

1201.113 in the material that precedes

paragraph (a), which states that the

initial decision of the judge will become

final 35 days after issuance. Where no

petition for review of an initial decision

is filed, and the Board does not reopen

on its own motion, there must be a date

certain when the case is closed and the

initial decision becomes the final

decision of the Board. Such a finality

date is also needed, for example, to

determine when the time starts running

for the filing of a petition for review of

a final Board decision in a mixed case

by the Equal Employment Opportunity

Commission under 5 U.S.C. 7702, a

petition for judicial review of a final

Board decision under 5 U.S.C. 7703, or

a motion for attorney fees under 5 CFR

1201.203(d).

As a result of these amendments to

the petition for review provisions,

initial decisions issued by MSPB judges

will continue to show a finality date,

which will be the date 35 days after the

date of issuance of the initial decision.

That date, however, will no longer be

the last day on which a petition for

review can be filed if the petitioner can

show that the initial decision was

received more than 5 days after the date

it was issued. In that event, the time

limit of 30 days after the date of receipt

will apply.

The Board is making a corresponding

amendment to the regulation at 5 CFR

1201.154(d), regarding the time limit for

filing a petition for review of a final

decision on a grievance in which

discrimination is alleged.

The Board is publishing this rule as

a final rule pursuant to 5 U.S.C. 1204(h).
59992 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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.

§ 1201.22 [Amended]

2. Section 1201.22 is amended by

revising paragraph (b) to read as follows:

* * * * *

(b) Time of filing. 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

receipt of the agency’s decision,

whichever is later. The time for filing is

computed in accordance with §1201.23

of this part. A response to an appeal

must be filed within 20 days of the date

of the Board’s acknowledgment order.

* * * * *

§ 1201.27 [Amended]

3. Section 1201.27 is amended at

paragraph (b) by revising the second

sentence to read as follows:

* * * * *

(b) * * * If the judge denies the

request, the appellants affected by the

decision may file individual appeals

within 30 days after the date of receipt

of the decision denying the request to be

heard as a class appeal. * * *

* * * * *

§ 1201.113 [Amended]

4. Section 1201.113 is amended by

revising paragraphs (a) and (d) to read

as follows:

* * * * *

(a) Exceptions. The initial decision

will not become final if any party files

a petition for review within the time

limit for filing specified in § 1201.114 of

this part, or if the Board reopens the

case on its own motion.

* * * * *

(d) Extensions. The Board may extend

the time limit for filing a petition for

good cause shown as specified in

§ 1201.114 of this part.

* * * * *

§ 1201.114 [Amended]

5. Section 1201.114 is amended at

paragraph (d) by revising the first

sentence to read as follows:

* * * * *

(d) * * * 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. * * *

* * * * *

§ 1201.154 [Amended]

6. Section 1201.154 is amended by

revising paragraph (a) and the first

sentence of paragraph (d) to read as

follows:

* * * * *

(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

receipt of the agency’s decision on the

appealable action, whichever is later.

* * * * *

(d) If the appellant has filed a

grievance with the agency under its

negotiated grievance procedure in

accordance with 5 U.S.C. 7121, he or

she may ask the Board to review the

final decision under 5 U.S.C. 7702

within 35 days after the date of issuance

of the decision or, if the appellant

shows that the decision was received

more than 5 days after the date of

issuance, within 30 days after the date

the appellant received the decision.

* * *

* * * * *

Dated: October 31, 1997.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 97–29311 Filed 11–5–97; 8:45 am]

BILLING CODE 7400–01–U

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1209

Practices and Procedures for Appeals

and Stay Requests of Personnel

Actions Allegedly Based on

Whistleblowing

AGENCY: Merit Systems Protection

Board.

ACTION: Final rule.

SUMMARY: The Merit Systems Protection

Board is amending its rules of practice

and procedure for whistleblower

appeals to change the time limits for

filing. The amendment to the time limit

for filing an individual right of action

(IRA) appeal is intended to ensure that

an appellant has the full 60 days

required by law to file after being

provided notification by the Special

Counsel that an investigation has been

terminated. The amendment to the time

limit for filing a whistleblower appeal

after a judge’s ruling on a stay request

is intended to ensure that an appellant

has a full 30 days to file after receipt of

the ruling. The purpose of these

amendments is to provide guidance to

the parties to MSPB cases and their

representatives regarding filing

requirements. The Board is

simultaneously amending its rules at 5

CFR part 1201 with respect to the time

limits for filing other appeals and

petitions for review.

EFFECTIVE DATE: November 6, 1997.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The

provisions of the Whistleblower

Protection Act of 1989 (Pub. L. 101–12)

governing a whistleblower’s filing of an

individual right of action (IRA) appeal

with the Board require that such an

appeal be filed no more than 60 days

after notification by the Special Counsel

that an investigation into the

whistleblower’s allegations has been

terminated. 5 U.S.C. 1214(a)(3)(A)(ii)

and 1221(a). The statutory language

does not specify whether the 60-day

period begins to run from the date of the

Special Counsel’s notice or the date of

the whistleblower’s receipt of that

notice.

Prior to this amendment, the Board’s

implementing regulation at 5 CFR

1209.5(a) required that an IRA appeal be

filed no later than 65 days after the date

of issuance of the Office of Special

Counsel’s written notification that it

was terminating its investigation of the

appellant’s allegations. This established

a clear date on which the time for filing

began to run and allowed an additional

5 days for the notice to be mailed and

received by an appellant before the 60-

day statutory period began.

Delay by the Office of Special Counsel

in mailing the notice and/or a delay by

the U.S. Postal Service could result in

an appellant having less than 60 days to

file an appeal with MSPB. If an

appellant did not receive the Special

Counsel’s notice until after the 65-day

time period for filing expired, an IRA

appeal might be dismissed as untimely.

To ensure that each IRA appellant has

a full 60 days for filing with the Board

after receipt of a notice from the Special

Counsel, the Board is amending its

regulation at 5 CFR 1209.5(a)(1) to

require that an IRA appeal be filed no

later than 65 days after the date of

issuance of the Office of Special

Counsel’s written notification or, if the