This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

41177

Vol. 63, No. 148

Monday, August 3, 1998

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 (MSPB or the Board) is amending

its rules of practice and procedure to:

Implement the compensatory damages

provision of the Civil Rights Act of

1991, Public Law 102–166, with respect

to MSPB cases where certain kinds of

discrimination are found; implement

the attorney fee provision of the

Uniformed Services Employment and

Reemployment Rights Act of 1994,

Public Law 103–353; implement the

attorney fee, consequential damages,

and choice of procedures provisions of

Public Law 103–424 (MSPB and Office

of Special Counsel reauthorization of

1994); and amend its rules governing

requests for attorney fees to change the

time limit for filing and incorporate an

evidentiary requirement from the

Board’s case law. The purpose of these

amendments is to provide guidance to

the parties to MSPB cases, and their

representatives, on how to proceed with

respect to requests for attorney fees,

consequential damages, and

compensatory damages, and to inform

them of the statutory requirement

regarding choice of procedures in cases

involving both an appealable action and

a prohibited personnel practice other

than discrimination. The Board is also

removing an obsolete section of its rules

governing mixed cases and making

technical changes to its mixed case and

enforcement rules to correct a citation.

The Board is implementing other

provisions of Public Law 103–424

through an amendment to its rules at 5

CFR part 1209, 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 compensatory damages

provision of the Civil Rights Act of

1991, Public Law 102-166, with respect

to MSPB cases where certain kinds of

discrimination are found; implement

the attorney fee provision of the

Uniformed Services Employment and

Reemployment Rights Act of 1994,

Public Law 103–353; implement the

attorney fee, consequential damages,

and choice of procedures provisions of

Public Law 103–424 (MSPB and Office

of Special Counsel reauthorization of

1994); amend its rules governing

requests for attorney fees to change the

time limit for filing and incorporate an

evidentiary requirement from the

Board’s case law; and make a technical

change to its rules governing mixed

cases (62 FR 17041, April 9, 1997). The

interim rule requested public comments

and allowed 60 days, until June 9, 1997,

for receipt of such comments.

Public Comments

Comments were received from two

Federal agencies. One commenter made

the following recommendations for

revisions in the interim rule:

(1) That § 1201.3(c)(1) be amended to

reflect the choices among statutory and

negotiated grievance procedures

involving agencies other than MSPB;

(2) That § 1201.201 be amended to

further define ‘‘consequential damages’’

and ‘‘compensatory damages;’’ and

(3) That § 1201.204(a)(1) be amended

to require that a request for damages be

raised before an arbitrator as early as

possible.

The recommendation numbered (1)

above asks the Board to amend its

regulation at § 1201.3(c)(1), which deals

with the choice of procedure for

bargaining unit employees between an

appeal to MSPB and a grievance under

a negotiated grievance procedure (NGP),

to specify the additional choices that

may be made between a grievance under

a NGP and the statutory procedures of

an agency other than MSPB, such as

filing an equal employment opportunity

(EEO) complaint under the Equal

Employment Opportunity Commission’s

regulations or a complaint alleging a

violation of 5 U.S.C. 2302(b)(1) with the

Special Counsel. While providing this

additional information could be useful,

it appears to go beyond the scope of the

Board’s regulatory authority, which is

limited to matters within its jurisdiction

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

U.S.C. 4331). It is appropriate for the

Board’s regulations to advise potential

appellants where there is a choice

between the Board’s appellate

procedures and another procedure, such

as the NGP. It does not appear

appropriate, however, for the Board to

address choices to be made between a

grievance under a NGP and the statutory

procedures of another agency.

The recommendation numbered (2)

above asks the Board to amend its

regulation at § 1201.201 (c) and (d) to

further define the terms, ‘‘consequential

damages’’ and ‘‘compensatory

damages.’’ The Board has determined

that such definitions should be made

through case-by-case adjudication. It

believes that the scope of damage

awards should be made in the context

of an appeal, where the matter can be

fully considered in the light of

arguments from the parties.

The recommendation numbered (3)

above asks the Board to amend its

regulation at § 1201.204(a)(1) to include

a requirement that a request for damages

be raised before an arbitrator as early as

possible. Such an amendment, which

would involve the Board imposing a

requirement on a proceeding before an

arbitrator pursuant to a negotiated

grievance procedure, would clearly be

beyond the scope of the Board’s

regulatory authority.

After review of these comments, the

Board has determined that none of the

revisions recommended by this

commenter should be made.

The other commenter recommended

that in § 1201.203(b)(2) of the interim

rule (now § 1201.202(d)(1) in the final

rule), the word ‘‘appeal’’ be changed to

‘‘action’’ to conform to the language of

38 U.S.C. § 4324. The Board notes that

in chapter 43 of title 38 (Uniformed

Services Employment and

Reemployment Rights Act, or USERRA),

the terms ‘‘action’’ and ‘‘complaint’’ are

both used to describe a matter that may

be raised before MSPB. The Board’s

regulations in part 1201 define ‘‘appeal’’

as ‘‘(a) request for review of an agency

action’’ (5 CFR 1201.4(f)), and the
41178 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

regulations use the term ‘‘appeal’’ in a

manner that can be applied to any

matter processed under the Board’s

appellate jurisdiction procedures.

Furthermore, in its interim rule

implementing other provisions of

USERRA (62 FR 66813, December 22,

1997), the Board uses the term ‘‘appeal’’

throughout to describe a matter that can

be raised before the Board under

USERRA. To maintain consistency in its

regulations, therefore, the Board has

determined that the revision

recommended by this commenter

should not be made.

Changes to Subpart H

Following an internal review, the

Board has determined that several

changes should be made in subpart H of

part 1201, as added by the interim rule,

to simplify and streamline the

procedures for deciding requests for

consequential damages or compensatory

damages and to clarify certain other

provisions. These changes are as

follows:

(1) The introductory language of

§ 1201.202(a), which sets forth various

authorities for the Board to award

attorney fees and, where applicable,

costs, expert witness fees, and litigation

expenses, is revised to clarify that the

listed authorities do not constitute an

exclusive list. As explained in the

preamble to the interim rule (62 FR

17041–17042, April 9, 1997), some of

the newer authorities overlap earlier

authorities. Other authorities may be

enacted in new legislation. As a result,

appellants in certain kinds of cases may

be able to proceed with a request for

attorney fees under more than one

authority.

(2) Section 1201.202(a)(5) is revised

by adding 5 U.S.C. 7701(g)(1) as an

authority for the Board to award

attorney fees in a Special Counsel

complaint for corrective action under 5

U.S.C. 1214. This addition reflects the

court ruling in Frazier versus MSPB, 672

F.2d 150, 168–170 (D.C. Cir. 1982), that

5 U.S.C. 7701(g)(1) permits the Board to

award attorney fees in a Special Counsel

corrective action. Although Public Law

103–424 added a specific authority for

an award of attorney fees in such cases

in a new provision at 5 U.S.C.

1214(g)(2), an award could also be made

under 5 U.S.C. 7701(g)(1), so both of

these authorities are cited in the revised

§ 1201.202(a)(5).

(3) A new paragraph (d) is added to

§ 1201.202 to provide definitions of a

‘‘proceeding on the merits’’ and an

‘‘addendum proceeding.’’ The definition

of a ‘‘proceeding on the merits’’ at

§ 1201.202(d)(1) is the same as that

contained in § 1201.203(b)(2) in the

interim rule. The definition of an

‘‘addendum proceeding’’ at

§ 1201.202(d)(2) is based on language

that was in §§ 1201.203(b) (1) and (b)(3)

in the interim rule. Because these

definitions apply to subpart H as a

whole, they are more appropriately

placed in § 1201.202 than in the

attorney fee provisions of § 1201.203.

(4) With the addition of the

definitions at § 1201.202(d),

§ 1201.203(b) is revised to state simply

that a request for attorney fees will be

decided in an addendum proceeding.

(5) Section 1201.203(c) is revised to

clarify where a motion for attorney fees

must be filed. Following the publication

of the interim rule, the Board published

a change in its part 1201 regulations

governing procedures for original

jurisdiction cases to allow initial

decisions to be issued by a judge in the

Board’s headquarters (62 FR 48449,

September 16, 1997). Section

1201.203(c) is revised by replacing the

term ‘‘decision’’ in the first sentence

with ‘‘initial decision.’’ This clarifies

that a motion for attorney fees must be

filed with the regional or field office

where the initial decision in the merits

proceeding was issued. The second

sentence is revised to clarify that a

motion for attorney fees must be filed

with the Clerk of the Board where the

initial decision was issued at the

Board’s headquarters, as well as when

the only MSPB decision in the merits

proceeding is a final decision of the

Board.

(6) Section 1201.203(d) in the interim

rule is divided into two sections,

1201.203(d), ‘‘Time of filing,’’ and

1201.203(e), ‘‘Service.’’ Accordingly,

§ 1201.203 (e) and (f) in the interim rule

are redesignated § 1201.203 (f) and (g),

respectively. In addition, ‘‘Initial

decision’’ is added to the heading of the

redesignated § 1201.203(g).

(7) Section 1201.204(a)(1) is revised to

conform the time limit for making a

request for consequential damages or

compensatory damages to the time limit

established by § 1201.24(b) for raising a

claim or defense not included in the

appeal. The time limit may be waived

for good cause shown. Under the

interim rule, a claim for damages could

have been made as late as the time the

first pleading with the 3-member Board

was filed.

(8) A new provision, ‘‘Form and

content of request,’’ is added as

§ 1201.204(b). This provision, which

parallels the ‘‘Form and content of

request’’ provision for a request for

attorney fees at § 1201.203(a),

establishes that a request for damages

must include both the amount of

damages sought and the reasons why,

under the applicable statutory standard,

an award of damages should be made.

Section 1201.204(b) in the interim rule

is redesignated § 1201.204(c).

(9) Sections 1201.204(d) and (e) in the

final rule replace sections

§§ 1201.204(c) through (e) in the interim

rule. The new provisions, which

parallel the provisions for deciding a

request for attorney fees in section

§ 1201.203 to the extent possible, are

intended to provide a more uniform and

streamlined procedure for deciding a

request for consequential damages or

compensatory damages. Section

1201.204(d) provides that a request for

damages will be decided in an

addendum proceeding. A judge,

however, may waive this requirement

and consider a request for damages in a

merits proceeding where such action is

in the interest of the parties and will

promote economy and efficiency in

adjudication. Section 1201.204(e)

prescribes the procedures for initiation

of an addendum proceeding on a

request for damages after there is a final

decision in the merits proceeding. The

time limit for filing, place of filing,

service, and response requirements are

the same as for a request for attorney

fees under § 1201.203. A conforming

change is made to § 1201.111, as

amended by the interim rule.

(10) Section 1201.204(g) is revised by

adding ‘‘Initial decision’’ to the heading;

by revising the text to state that the

judge will issue an initial decision in

the addendum proceeding, which shall

be subject to a petition for review by the

Board; and by removing the language

regarding a recommended decision

issued by an administrative law judge

(§ 1201.204(g)(2) in the interim rule).

Under the Board’s revised procedures

for original jurisdiction cases (62 FR

48449, September 16, 1997), a

recommended decision will be issued

only in certain Hatch Act cases

involving Federal or District of

Columbia government employees.

Because neither consequential damages

nor compensatory damages are available

in such cases, there is no longer a need

for the language regarding

recommended decisions.

(11) Section 1201.204(h) is a new

provision that prescribes procedures for

consideration of a request for

consequential damages or compensatory

damages in the first instance by the 3-

member Board. Such consideration

would occur where a request 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, or where a request is made

in a case where the only MSPB

proceeding is before the 3-member
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41179

Board, as in a request to review an

arbitration decision under 5 U.S.C.

7121(d). In such situations, the

regulation provides that the Board may:

(1) Consider both the merits of the case

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.

(12) Section 1201.204(h) in the

interim rule is redesignated

§ 1201.204(i).

For the convenience of its customers,

the Board is republishing subpart H in

its entirety.

Technical Changes

The following changes of a technical

nature are also made in this final rule:

(1) The amendments to sections

§§ 1201.121 and 1201.131 made by the

interim rule were subsequently

superseded by amendments made by

interim rules issued on September 16,

1997 (62 FR 48449), and December 22,

1997 (62 FR 66813). Therefore, the

amendments made to sections

§§ 1201.121 and 1201.131 by the interim

rule are not adopted in this final rule.

(2) The interim rule made technical

amendments to § 1201.163. The Board

has since determined that this

provision, governing mixed cases that

were filed under Reorganization Plan

No. 1 of 1978, is obsolete, because all

such cases have been completed.

Therefore, in lieu of the technical

amendments made by the interim rule,

§ 1201.163 is removed in its entirety.

(3) As a result of the renumbering of

§ 1201.119 as § 1201.120 by an earlier

amendment to the Board’s regulations

(59 FR 30863, June 16, 1994), three

citations to this provision in the Board’s

regulations have been rendered

incorrect. Therefore, the Board is

amending §§ 1210.157, 1201.183(a)(4),

and 1201.183(b)(3) to change

‘‘1201.119’’ to read ‘‘1201.120.’’

The Board is publishing this rule as

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

Accordingly, the Board adopts as final

its interim rule published at 62 FR

17041, April 9, 1997, with the following

changes:

1. Section 1201.111(b)(6), as amended

by the interim rule, is revised to read as

follows:

§ 1201.111 [Amended]

* * * * *

(b) * * *

(6) A statement of any further process

available, including, as appropriate, a

petition for review under § 1201.114 of

this part, a petition for enforcement

under § 1201.182, a motion for attorney

fees under § 1201.203, a motion to

initiate an addendum proceeding for

consequential damages or compensatory

damages under § 1201.204, and a

petition for judicial review.

* * * * *

2. The amendments made to

§§ 1201.121(b) and 1201.131 by the

interim rule are not adopted. Those

sections continue to read as revised by

62 FR 48449, September 16, 1997, and

further amended by 62 FR 66813,

December 22, 1997.

§ 1201.157 [Amended]

3. Section 1201.157 is amended by

removing ‘‘§ 1201.119’’ and by adding in

its place ‘‘§ 1201.120.’’

§ 1201.163 [Removed]

4. In lieu of the amendments made by

the interim rule, section 1201.163 is

removed.

§ 1201.183 [Amended]

5. Section 1201.183 is amended at

paragraphs (a)(4) and (b)(3) by removing

‘‘§ 1201.119’’ in each paragraph and by

adding in its place ‘‘§ 1201.120.’’

6. Subpart H, as added by the interim

rule, is revised to read as follows:

Subpart H—Attorney Fees (Plus Costs,

Expert Witness Fees, and Litigation

Expenses, Where Applicable),

Consequential Damages, and

Compensatory Damages

Sec.

1201.201 Statement of purpose.

1201.202 Authority for awards.

1201.203 Proceedings for attorney fees.

1201.204 Proceedings for consequential

damages and compensatory damages..

1201.205 Judicial review.

Subpart H—Attorney Fees (Plus Costs,

Expert Witness Fees, and Litigation

Expenses, Where Applicable),

Consequential Damages, and

Compensatory Damages

§ 1201.201 Statement of purpose.

(a) This subpart governs Board

proceedings for awards of attorney fees

(plus costs, expert witness fees, and

litigation expenses, where applicable),

consequential damages, and

compensatory damages.

(b) There are seven statutory

provisions covering attorney fee awards.

Because most MSPB cases are appeals

under 5 U.S.C. 7701, most requests for

attorney fees will be governed by

§ 1201.202(a)(1). There are, however,

other attorney fee provisions that apply

only to specific kinds of cases. For

example, § 1201.202(a)(4) applies only

to certain whistleblower appeals.

Sections 1201.202(a)(5) and (a)(6) apply

only to corrective and disciplinary

action cases brought by the Special

Counsel. Section 1201.202(a)(7) applies

only to appeals brought under the

Uniformed Services Employment and

Reemployment Rights Act.

(c) An award of consequential

damages is authorized in only two

situations: Where the Board orders

corrective action in a whistleblower

appeal under 5 U.S.C. 1221, and where

the Board orders corrective action in a

Special Counsel complaint under 5

U.S.C. 1214. Consequential damages

include such items as medical costs and

travel expenses, and other costs as

determined by the Board through case

law.

(d) The Civil Rights Act of 1991 (42

U.S.C. 1981a) authorizes an award of

compensatory damages to a prevailing

party who is found to have been

intentionally discriminated against

based on race, color, religion, sex,

national origin, or disability.

Compensatory damages include

pecuniary losses, future pecuniary

losses, and nonpecuniary losses, such as

emotional pain, suffering,

inconvenience, mental anguish, and loss

of enjoyment of life.

§ 1201.202 Authority for awards.

(a) Awards of attorney fees (plus costs,

expert witness fees, and litigation

expenses, where applicable). The Board

is authorized by various statutes to

order payment of attorney fees and,

where applicable, costs, expert witness

fees, and litigation expenses. These

statutory authorities include, but are not

limited to, the following authorities to

order payment of:

(1) Attorney fees, as authorized by 5

U.S.C. 7701(g)(1), where the appellant

or respondent is the prevailing party in

an appeal under 5 U.S.C. 7701 or an

agency action against an administrative

law judge under 5 U.S.C. 7521, and an

award is warranted in the interest of

justice;

(2) Attorney fees, as authorized by 5

U.S.C. 7701(g)(2), where the appellant

or respondent is the prevailing party in

an appeal under 5 U.S.C. 7701, a request

to review an arbitration decision under

5 U.S.C. 7121(d), or an agency action

against an administrative law judge

under 5 U.S.C. 7521, and the decision

is based on a finding of discrimination

prohibited under 5 U.S.C. 2302(b)(1);

(3) Attorney fees and costs, as

authorized by 5 U.S.C. 1221(g)(2), where

the appellant is the prevailing party in

an appeal under 5 U.S.C. 7701 and the
41180 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

Board’s decision is based on a finding

of a prohibited personnel practice;

(4) Attorney fees and costs, as

authorized by 5 U.S.C. 1221(g)(1)(B),

where the Board orders corrective action

in a whistleblower appeal to which 5

U.S.C. 1221 applies;

(5) Attorney fees, as authorized by 5

U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1),

where the Board orders corrective action

in a Special Counsel complaint under 5

U.S.C. 1214;

(6) Attorney fees, as authorized by 5

U.S.C. 1204(m), where the respondent is

the prevailing party in a Special

Counsel complaint for disciplinary

action under 5 U.S.C. 1215; and

(7) Attorney fees, expert witness fees,

and litigation expenses, as authorized

by the Uniformed Services Employment

and Reemployment Rights Act, 38

U.S.C. 4324(c)(4).

(b) Awards of consequential damages.

The Board may order payment of

consequential damages, including

medical costs incurred, travel expenses,

and any other reasonable and

foreseeable consequential damages:

(1) As authorized by 5 U.S.C.

1221(g)(1)(A)(ii), where the Board orders

corrective action in a whistleblower

appeal to which 5 U.S.C. 1221 applies;

and

(2) As authorized by 5 U.S.C.

1214(g)(2), where the Board orders

corrective action in a Special Counsel

complaint under 5 U.S.C. 1214.

(c) Awards of compensatory damages.

The Board may order payment of

compensatory damages, as authorized

by section 102 of the Civil Rights Act of

1991 (42 U.S.C. 1981a), based on a

finding of unlawful intentional

discrimination but not on an

employment practice that is unlawful

because of its disparate impact under

the Civil Rights Act of 1964, the

Rehabilitation Act of 1973, or the

Americans with Disabilities Act of 1990.

Compensatory damages include

pecuniary losses, future pecuniary

losses, and nonpecuniary losses such as

emotional pain, suffering,

inconvenience, mental anguish, and loss

of enjoyment of life.

(d) Definitions. For purposes of this

subpart:

(1) A proceeding on the merits is a

proceeding to decide an appeal of an

agency action under 5 U.S.C. section

1221 or 7701, an appeal under 38 U.S.C.

4324, a request to review an arbitration

decision under 5 U.S.C. 7121(d), a

Special Counsel complaint under 5

U.S.C. section 1214 or 1215, or an

agency action against an administrative

law judge under 5 U.S.C. 7521.

(2) An addendum proceeding is a

proceeding conducted after issuance of

a final decision in a proceeding on the

merits, including a decision accepting

the parties’ settlement of the case. The

final decision in the proceeding on the

merits may be an initial decision of a

judge that has become final under

§ 1201.113 of this part or a final

decision of the Board.

§ 1201.203 Proceedings for attorney fees.

(a) Form and content of request. A

request for attorney fees must be made

by motion, must state why the appellant

or respondent believes he or she is

entitled to an award under the

applicable statutory standard, and must

be supported by evidence substantiating

the amount of the request. Evidence

supporting a motion for attorney fees

must include at a minimum:

(1) Accurate and current time records;

(2) A copy of the terms of the fee

agreement (if any);

(3) A statement of the attorney’s

customary billing rate for similar work

if the attorney has a billing practice or,

in the absence of that practice, other

evidence of the prevailing community

rate that will establish a market value

for the attorney’s services; and

(4) An established attorney-client

relationship.

(b) Addendum proceeding. A request

for attorney fees will be decided in an

addendum proceeding.

(c) Place of filing. Where the initial

decision in the proceeding on the merits

was issued by a judge in a MSPB

regional or field office, a motion for

attorney fees must be filed with the

regional or field office that issued the

initial decision. Where the decision in

the proceeding on the merits was an

initial decision issued by a judge at the

Board’s headquarters or where the only

decision was a final decision issued by

the Board, a motion for attorney fees

must be filed with the Clerk of the

Board.

(d) Time of filing. A motion for

attorney fees must be filed as soon as

possible after a final decision of the

Board but no later than 60 days after the

date on which a decision becomes final.

(e) Service. A copy of a motion for

attorney fees 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

motion for attorney fees 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.

§ 1201.204 Proceedings for consequential

damages and compensatory damages.

(a) Time for making request. (1) A

request for consequential damages or

compensatory damages must be made

during the proceeding on the merits, no

later than the end of the conference(s)

held to define the issues in the case.

(2) The judge or the Board, as

applicable, may waive the time limit for

making a request for consequential

damages or compensatory damages for

good cause shown. The time limit will

not be waived if a party shows that such

waiver would result in undue prejudice.

(b) Form and content of request. A

request for consequential damages or

compensatory damages must be made in

writing and must state the amount of

damages sought and the reasons why

the appellant or respondent believes he

or she is entitled to an award under the

applicable statutory standard.

(c) Service. A copy of a request for

consequential damages or compensatory

damages must be served on the other

parties or their representatives when the

request is made.

A party may file a pleading

responding to the request within the

time limit established by the judge or

the Board, as applicable.

(d) Addendum proceeding. (1) A

request for consequential damages or

compensatory damages will be decided

in an addendum proceeding.

(2) A judge may waive the

requirement of paragraph (d)(1), either

on his or her own motion or on the

motion of a party, and consider a

request for damages in a proceeding on

the merits where the judge determines

that such action is in the interest of the

parties and will promote efficiency and

economy in adjudication.

(e) Initiation of addendum

proceeding. (1) A motion for initiation

of an addendum proceeding to decide a

request for consequential damages or

compensatory damages must be filed as

soon as possible after a final decision of

the Board but no later than 60 days after

the date on which a decision becomes

final. Where the initial decision in the

proceeding on the merits was issued by

a judge in a MSPB regional or field

office, the motion must be filed with the

regional or field office that issued the

initial decision. Where the decision in

the proceeding on the merits was an

initial decision issued by a judge at the

Board’s headquarters or where the only

decision was a final decision issued by

the Board, the motion must be filed with

the Clerk of the Board.
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