[Federal Register Volume 65, Number 219 (Monday, November 13, 2000)]
[Rules and Regulations]
[Pages 67607-67608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28823]



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Rules and Regulations
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Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / 
Rules and Regulations

[[Page 67607]]



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.

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SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is 
amending its rules of practice and procedure in this part to permit an 
appellant who files a whistleblower appeal with MSPB after first 
seeking corrective action from the Office of Special Counsel (OSC) to 
satisfy certain requirements for the information to be included in the 
appeal by filing a copy of Part 2: Reprisal for Whistleblowing of the 
complaint form submitted to OSC, Form OSC-11 (Complaint of Possible 
Prohibited Personnel Practice or Other Prohibited Activity), as revised 
August 2000. On October 31, 2000, OSC amended its rules to require 
that, effective December 1, 2000, complaints of prohibited personnel 
practices or other prohibited activity (other than an alleged Hatch Act 
violation) be submitted on Form OSC-11. The amendment to the Board's 
rules is intended to assist appellants who file whistleblower appeals 
after first seeking corrective action from the Special Counsel to 
provide the information necessary for the Board to determine whether 
the appellant has satisfied the requirement to exhaust OSC procedures 
prior to filing with the Board.

EFFECTIVE DATE: November 13, 2000.

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

SUPPLEMENTARY INFORMATION: On October 31, 2000, the Office of Special 
Counsel amended its rules at 5 CFR 1800.1, effective December 1, 2000, 
to require an individual who files a complaint of a prohibited 
personnel practice or other prohibited activity (other than an alleged 
Hatch Act violation) to complete and submit Form OSC-11, Complaint of 
Possible Prohibited Personnel Practice or Other Prohibited Activity (65 
FR 64881). OSC revised the complaint form in August 2000 to group 
details of whistleblower reprisal allegations in a separate section of 
the form. That section, designated as Part 2: Reprisal for 
Whistleblowing, requires the complainant to describe each 
whistleblowing disclosure and to identify when and to whom the 
disclosure was made, the personnel action that was taken or threatened 
because of the whistleblowing disclosure, and the date of any such 
action or threat. The form is available on the OSC Web site 
(www.osc.gov).
    Under the Whistleblower Protection Act, a Federal employee, former 
employee, or applicant for employment may file an appeal with the Board 
challenging a personnel action that the individual believes was taken 
or threatened because of whistleblowing activity. If the individual 
seeks to challenge a personnel action that is not directly appealable 
to the Board under another law, rule, or regulation, however, he must 
first seek corrective action from the Special Counsel. Such an 
individual may file an individual right of action (IRA) appeal with the 
Board only if the Special Counsel declines to seek corrective action 
from the Board or does not inform the individual within 120 days of the 
filing of the complaint that corrective action will be sought. 5 U.S.C. 
1214(a)(3), 5 U.S.C. 1221(a), 5 CFR 1209.2(b)(1), 5 CFR 1209.5(a).
    An individual who may appeal a personnel action directly to the 
Board under another law, rule, or regulation may file his appeal with 
the Board and raise the allegation that the personnel action was based 
on whistleblowing as a part of that appeal. 5 U.S.C. 1221(b), 5 CFR 
1209.2(b)(2). Alternatively, such an individual may first file a 
complaint with the Special Counsel and subsequently file an otherwise 
appealable action (OAA) appeal with the Board after exhausting OSC 
procedures. 5 CFR 1209.5(b); also see Hartfield v. Department of 
Defense, 70 M.S.P.R. 20 (1996).
    The U.S. Court of Appeals for the Federal Circuit held in Ward v. 
Merit Systems Protection Board, 981 F.2d 521, 526-27 (Fed. Cir. 1992), 
that in an IRA appeal, the Board may consider only those matters raised 
by the appellant in the complaint to the Special Counsel. By providing 
the Board a copy of Part 2 of Form OSC-11, describing each 
whistleblowing reprisal claim, an appellant who first sought corrective 
action from the Special Counsel will help ensure that the Board has 
sufficient information to determine whether the appellant has satisfied 
the statutory requirement of exhausting the OSC procedures with respect 
to all matters raised before the Special Counsel before filing an 
appeal with the Board.
    Therefore, the Board is amending its rule at 5 CFR 1209.6 by adding 
a new subsection (a)(6) to permit an appellant who files a 
whistleblower appeal with the Board after first seeking corrective 
action from the Special Counsel to satisfy the requirements of 
subsections (a)(3) through (a)(5) of that section by filing a copy of 
Part 2 of Form OSC-11, together with a copy of any continuation sheet 
with answers to Part 2 questions filed with OSC, and any supplement to 
the original complaint filed with OSC or completed by OSC and furnished 
to the appellant.
    The Board is making two additional changes to reflect Board rulings 
that an appellant is protected by the Whistleblower Protection Act if a 
personnel action is taken against him because the agency believed he 
made whistleblowing disclosures (Special Counsel v. Department of the 
Navy, 46 M.S.P.R. 274 (1990)) or because of his close relationship to a 
whistleblower (Duda v. Department of Veterans Affairs, 51 M.S.P.R. 444 
(1991)). In Sec. 1209.6(a)(4), ``the appellant's disclosure'' is 
replaced by ``each disclosure.'' In Sec. 1209.6(a)(5)(ii), ``the 
appellant's whistleblowing'' is replaced by ``the whistleblowing 
disclosure.''
    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 1209

    Administrative practice and procedure, Government employees.

    Accordingly, the Board amends 5 CFR part 1209 as follows:

[[Page 67608]]

PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS 
OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING

    1. The authority citation for part 1209 continues to read as 
follows:

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

    2. Amend Sec. 1209.6 at paragraph (a) by revising subparagraphs 
(a)(4) and (a)(5)(ii) and by adding new subparagraph (a)(6) to read as 
follows:


Sec. 1209.6  Content of appeal; right to hearing.

    (a) * * *
    (4) A description of each disclosure evidencing whistleblowing as 
defined in Sec. 1209.4(b) of this part; and
    (5) * * *
    (ii) The personnel action was or will be based wholly or in part on 
the whistleblowing disclosure, as described in Sec. 1209.4(b) of this 
part.
    (6) An appellant who first sought corrective action from the 
Special Counsel may satisfy the requirements of paragraphs (a)(3) 
through (a)(5) of this section by filing with the appeal a copy of Part 
2: Reprisal For Whistleblowing of the complaint form submitted to the 
Office of Special Counsel (Form OSC-11, Complaint of Possible 
Prohibited Personnel Practice or Other Prohibited Activity, Rev. 8/00), 
together with a copy of any continuation sheet with answers to Part 2 
questions filed with the Office of Special Counsel, and any supplement 
to Part 2 of the original complaint filed with the Office of Special 
Counsel or completed by the Office of Special Counsel and furnished to 
the appellant.
* * * * *

    Dated: November 6, 2000
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 00-28823 Filed 11-9-00; 8:45 am]
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