Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41181

(2) A copy of a motion for initiation

of an addendum proceeding to decide a

request for consequential damages or

compensatory damages must be served

on the other parties or their

representatives at the time of filing. A

party may file a pleading responding to

the motion within the time limit

established by the judge.

(f) Hearing; applicability of subpart B.

The judge may hold a hearing on a

request for consequential damages or

compensatory damages and may apply

appropriate provisions of subpart B of

this part to the addendum proceeding.

(g) Initial decision; review by the

Board. The judge will issue an initial

decision in the addendum proceeding,

which shall be subject to the provisions

for a petition for review by the Board

under subpart C of this part.

(h) Request for damages first made in

proceeding before the Board. Where a

request for consequential damages or

compensatory damages is first made on

petition for review of a judge’s initial

decision on the merits and the Board

waives the time limit for making the

request in accordance with paragraph

(a)(2) of this section, or where the

request is made in a case where the only

MSPB proceeding is before the 3-

member Board, including, for

compensatory damages only, a request

to review an arbitration decision under

5 U.S.C. 7121(d), the Board may:

(1) Consider both the merits and the

request for damages and issue a final

decision;

(2) Remand the case to the judge for

a new initial decision, either on the

request for damages only or on both the

merits and the request for damages; or

(3) Where there has been no prior

proceeding before a judge, forward the

request for damages to a judge for

hearing and a recommendation to the

Board, after which the Board will issue

a final decision on both the merits and

the request for damages.

(i) EEOC review of decision on

compensatory damages. A final decision

of the Board on a request for

compensatory damages pursuant to the

Civil Rights Act of 1991 shall be subject

to review by the Equal Employment

Opportunity Commission as provided

under subpart E of this part.

§ 1201.205 Judicial review.

A final Board decision under this

subpart is subject to judicial review as

provided under 5 U.S.C. 7703.

Dated: July 28, 1998.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 98–20447 Filed 7–31–98; 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 (MSPB or the Board) is amending

its rules of practice and procedure for

whistleblower appeals to implement the

provisions of Public Law 103–424

(MSPB and Office of Special Counsel

reauthorization of 1994) that: Added a

new personnel action and amended

another in the statutory provisions

governing prohibited personnel

practices; and added a requirement that

the Board refer its findings to the

Special Counsel when it determines in

a whistleblower proceeding that a

current Federal employee may have

committed a prohibited personnel

practice. The Board is also amending its

rules of practice and procedure for

whistleblower appeals to include a

cross-reference to subpart H of part 1201

regarding awards of attorney fees and

consequential damages. The purpose of

these amendments is to provide

guidance to the parties to MSPB cases

and their representatives regarding the

new and amended personnel actions, to

refer parties and their representatives to

subpart H of part 1201 for the

procedures governing requests for

attorney fees and consequential

damages, and to provide public notice

of the requirement that the Board refer

certain prohibited personnel practice

findings to the Special Counsel. The

Board is implementing other provisions

of Public Law 103–424 through an

amendment to its rules at 5 CFR part

1201, which is being published

simultaneously with this amendment.

EFFECTIVE DATE: August 3, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert E. Taylor, Clerk of the Board,

(202) 653–7200.

SUPPLEMENTARY INFORMATION: The Board

previously published an interim rule to:

Implement the provisions of Public Law

103–424 (MSPB and Office of Special

Counsel reauthorization of 1994) that

added a new personnel action and

amended another in the statutory

provisions governing prohibited

personnel practices and added a

requirement that the Board refer its

findings to the Special Counsel when it

determines in a whistleblower

proceeding that a current Federal

employee may have committed a

prohibited personnel practice, and to

include a cross-reference to subpart H of

part 1201 regarding awards of attorney

fees and consequential damages (62 FR

17047, April 9, 1997). The interim rule

requested public comments and allowed

60 days, until June 9, 1997, for receipt

of such comments.

Comments were received from one

Federal agency suggesting that the

Board amend part 1209 to impose a time

limit for bringing an action to the

Special Counsel as a pre-condition for

later bringing an individual right of

action (IRA) appeal to the Board.

Although the recommendation does not

address any of the changes made by the

interim rule, the Board will address it.

The Board has concluded that

imposing such a time limit would not be

a proper exercise of its regulatory

authority. That authority is limited to

matters within the Board’s jurisdiction

(5 U.S.C. 1204(h) and 7701(k), and 38

U.S.C. 4331).

Under 5 U.S.C. 7121(g)(2), an

employee who has been affected by a

prohibited personnel practice (other

than discrimination) may elect among

three specified remedies: (1) An appeal

to MSPB under 5 U.S.C. 7701, (2) a

grievance under a negotiated grievance

procedure, or (3) an action under

subchapters II and III of chapter 12 of

title 5. Subchapter II concerns Special

Counsel actions (which may lead to

corrective action complaints before the

Board), and subchapter III covers IRA

appeals. Because the conjunctive is used

with regard to the Special Counsel and

IRA processes, it appears that Congress

intended, without limits other than

those specified, to allow complainants

to go to the Special Counsel and bring

IRA appeals to the Board on the same

matter. By limiting the matters that can

be brought to the Board under

subchapter III to only ‘‘timely-raised’’

matters brought to OSC under

subchapter II, as suggested by the

commenter, the Board would be adding

a limitation to the IRA appeal choice

that is not contained in the statute.

The Board is publishing this rule as

a final rule pursuant to 5 U.S.C. 1204(h).

Accordingly, the Board adopts as a

final rule, without change, its interim

rule published at 62 FR 17047, April 9,

1997.

Dated: July 27, 1998.

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 98–20448 Filed 7–31–98; 8:45 am]

BILLING CODE 7400–01–U