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.

Rules and Regulations Federal Register

24681 

Vol. 89, No. 69 

Tuesday, April 9, 2024 

MERIT SYSTEMS PROTECTION 

BOARD 

5 CFR Part 1201 

Appellate Jurisdiction Update 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Final rule. 

SUMMARY: This final rule updates the list 

of sources from which the Merit 

Systems Protection Board (MSPB) 

derives appellate jurisdiction. 

DATES: Effective May 9, 2024. 

FOR FURTHER INFORMATION CONTACT: Gina 

K. Grippando, Clerk of the Board, Merit 

Systems Protection Board, 1615 M 

Street NW, Washington, DC 20419; 

phone: (202) 653–7200; fax: (202) 653– 

7130; or email: mspb@mspb.gov. 

SUPPLEMENTARY INFORMATION: On 

February 6, 2024, the Merit Systems 

Protection Board (MSPB or Board) 

proposed an amendment to 5 CFR 

1201.3, which sets forth a non-exclusive 

list of the types of appeals within the 

MSPB’s jurisdiction. 89 FR 8083. In 

response to publication of the proposed 

rule, the MSPB received three 

comments from three commenters. The 

comments received by the MSPB are 

available for review by the public at 

https://www.mspb.gov/foia/efoiareadingroom.htm. 

Comments and Summary of Changes to 

the Proposed Rule 

The MSPB initially proposed 

amending 5 CFR 1201.3 to include a 

new type of appeal proposed by the 

Office of Personnel Management (OPM) 

at 5 CFR 302.603. 89 FR 8083. OPM’s 

proposed rule provided that certain 

Federal employees moved from the 

competitive service into the excepted 

service, or moved between schedules in 

the excepted service, would have a right 

to appeal to the MSPB any purported 

loss of civil service protections 

stemming from that move. 88 FR 63862. 

OPM’s Final Rule for 5 CFR 302.603, 

published elsewhere in this issue of the 

Federal Register, adjusted the language 

of the proposed regulation providing the 

appeal right. Generally, OPM’s final rule 

at section 302.603 permits an appeal for: 

(1) an agency’s assertion that a Federal 

employee moved from the competitive 

service into the excepted service, or 

moved between schedules in the 

excepted service, would lose appeal 

rights, competitive status, or other 

previously accrued protections as a 

result of that move; and (2) an agency’s 

failure to provide required notice to the 

employee regarding whether the move 

would affect the employee’s appeal 

rights, competitive status, or other 

accrued protections. An appeal arising 

under the first part of this regulation 

would request that the MSPB correct the 

assertion from the agency regarding the 

individual’s alleged loss of appeal 

rights, competitive status, or other 

accrued protections, stemming from the 

move and direct the agency to afford 

such rights, status, and protections to 

the employee in subsequent actions 

under chapters 43 or 75 of title 5, 

United States Code, except to the extent 

that any such order would be 

inconsistent with an applicable statute. 

An appeal arising under the second part 

of this regulation would request that the 

MSPB order the employee’s agency to 

issue the required notice regarding the 

asserted effect of the move. The MSPB 

has thus adjusted the language of its 

proposed rule implementing OPM’s rule 

to accord with OPM’s revisions. 

Additionally, the MSPB received 

three comments from three commenters 

in response to its proposed rulemaking. 

Two of the commenters did not provide 

any substantive comment on the 

MSPB’s proposal, but indicated general 

approval of the proposal. The third 

commenter also expressed support for 

the MSPB’s original proposal, but 

further suggested that the MSPB clarify 

its proposal to include all of the types 

of appeals provided by OPM in its 

proposed 5 CFR 302.603. OPM’s 

proposed rule provided not only 

appeals when individuals were 

involuntarily moved, but also appeals 

when individuals believed that their 

facially voluntary moves were coerced 

or otherwise involuntary. The MSPB 

agrees with the commenter’s suggestion 

and has reformulated its draft rule to 

more clearly reflect all of the types of 

appeals provided in OPM’s final 5 CFR 

302.603. 

This final rule will become effective 

30 days after publication in the Federal 

Register. 

List of Subjects in 5 CFR Part 1201 

Administrative practice and 

procedure, Civil rights, Government 

employees. 

For the reasons set forth above, 5 CFR 

part 1201 is amended as follows: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 1. The authority citation for part 1201 

continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

§ 1201.3 [Amended] 

■ 2. Section 1201.3 is amended by 

adding paragraph (a)(12) to read as 

follows: 

§ 1201.3 Appellate Jurisdiction. 

(a) * * * 

(12) Actions Related to Placement or 

Movement into an Excepted Service 

Position Without Civil Service 

Protections. (i) An agency assertion that 

an involuntary (including a facially 

voluntary, but alleged to be involuntary) 

movement or placement of a 

competitive service employee into the 

excepted service, will eliminate 

competitive status or any other 

procedural and appeal rights that the 

employee had previously accrued. (5 

CFR 302.603(b); 5 CFR 302.603(d)); 

(ii) An agency assertion that an 

involuntary (including a facially 

voluntary, but alleged to be involuntary) 

movement or placement of an excepted 

service employee into a different 

schedule of the excepted service, will 

eliminate competitive status or any 

other procedural and appeal rights that 

the employee had previously accrued. (5 

CFR 302.603(b); 5 CFR 302.603(d)); 

(iii) An agency’s failure to provide the 

required notice, under 5 CFR 

302.602(c)(1), of the effect of the abovedescribed movements or placements on 

the employee’s status or procedural and 

appeal rights. (5 CFR 302.603(c)). 

* * * * * 

Gina K. Grippando, 

Clerk of the Board. 

[FR Doc. 2024–07191 Filed 4–4–24; 8:45 am] 

BILLING CODE 7400–01–P 


ddrumheller on DSK120RN23PROD with RULES1