[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14590] Federal Register / Vol. 59, No. 115 / Thursday, June 16, 1994 / [[Page Unknown]] [Federal Register: June 16, 1994] VOL. 59, NO. 115 Thursday, June 16, 1994 MERIT SYSTEMS PROTECTION BOARD 5 CFR Part 1201 Practices and Procedures AGENCY: Merit Systems Protection Board. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Board is amending its practices and procedures to identify the evidence which an agency must provide to show compliance with an interim relief order and to provide for enforcement of interim relief in circumstances where the sanction of dismissing the agency's petition for review is ineffective. This amendment revises the Board's regulation to more precisely reflect the language of the Whistleblower Protection Act of 1989, 5 U.S.C. 7701(b)(2)(A). EFFECTIVE DATE: June 16, 1994. FOR FURTHER INFORMATION CONTACT: Robert Taylor, (202) 653-7200. SUPPLEMENTARY INFORMATION: Under 5 U.S.C. 7701(k), the Board is authorized to prescribe regulations to carry out the purpose of 5 U.S.C. 7701(b)(2). An appellant who is the prevailing party in an initial decision under 5 U.S.C. 7701(b)(1) may be entitled to interim relief pending the outcome of any petition for review under 5 U.S.C. 7701(e). In Ginocchi v. Department of the Treasury, 53 M.S.P.R. 62, 68 n.4 (1992), the Board ruled that it would not entertain motions for compliance with an order of interim relief and that the appellant's remedy for an agency's failure to provide the ordered interim relief would be a motion to dismiss the agency's petition for review. However, this sanction is an ineffective means to obtain compliance in cases where the appellant or an intervenor petitions for review of a decision entitling the appellant to interim relief, such as a decision mitigating the penalty imposed by the agency. The new Sec. 1201.115(c) implements the Board's determination that in such cases the appropriate enforcement mechanism is the Board's authority to order withholding of the salary of the agency official responsible for complying with the interim relief order. Under Sec. 1201.115(b)(1), a petition for review or cross petition for review by the agency must be accompanied by evidence that the agency has provided any interim relief ordered (or by the evidence relating to an ``undue disruption'' determination which is specified in Sec. 1201.115(b)(2)). New Sec. 1201.116(a) implements Ginocchi, supra, by providing that the appellant may request dismissal of the agency's petition for failure to provide the required interim relief (or the required alternative evidence). It clarifies that dismissal may be sought in either the appellant's response to the agency's petition or in a later motion to dismiss provided the latter is based on information not readily available before the time limit for responding to the agency's petition for review. New Sec. 1201.116(b) provides for petitions for enforcement of interim relief when such relief is still due after issuance of the final decision (e.g., a final pay check or a lump sum payment of unused annual leave earned during the interim period) and the relief sought is not available through a petition for enforcement of the final decision because the appellant is not the prevailing party. The Board is publishing this rule as a final rule pursuant to 1204(h). List of Subjects in 5 CFR Part 1201 Administrative practice and procedure, Government employees. Accordingly, the Merit Systems Protection 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 unless otherwise noted. 2. In Sec. 1201.115, paragraph (c) is redesignated as paragraph (d) and paragraphs (b)(1) and (b)(2) are revised and a new paragraph (c) is added to read as follows: Sec. 1201.115 Contents of petition for review. * * * * * (b)(1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review or cross petition for review filed by the agency must be accompanied by evidence that the agency has provided the interim relief required, except when the agency has made a determination as described in paragraph (b)(2) of this section. The agency may comply by submitting an SF 50 or SF 52, a letter from an agency official directing the appellant to return to work and informing the appellant of his or her reinstatement as of the date of the initial decision, or an affidavit or declaration specifying the manner of the agency's compliance. The interim relief must be effected retroactively to the date of the initial decision. Cancellation of the appealed action or relief effected retroactively to the date of the action will result in dismissal of the agency's petition for mootness. (2) Under 5 U.S.C. 7701(b)(2), if the initial decision provides interim relief which requires that the appellant be returned to his or her place of employment pending the outcome of any petition for review and the agency determines that the return or presence of the appellant will be unduly disruptive to the work environment, the agency must notify both the appellant and the judge in writing. The agency must also provide evidence of such notification to the Board at the time of filing a petition or cross petition for review. The evidence must show that the agency has provided that the appellant will receive appropriate pay, compensation, and all other benefits as terms and conditions of employment from the date of the initial decision until a final decision is issued. * * * * * (c) If an appellant or an intervenor files a petition or cross petition for review of an initial decision ordering interim relief, upon order of the Clerk of the Board the agency must submit evidence that it has provided the interim relief required (or, where applicable, the evidence specified in paragraph (b)(2) of this section), and it must submit the name of the official responsible for compliance. The agency's failure to submit acceptable evidence of compliance with the interim relief order is a basis for the Board to order the withholding of the salary of the responsible official pursuant to 5 U.S.C. 1204(e)(2)(A) and 5 CFR 1201.183(c). This sanction is in addition to the dismissal of an agency petition or cross petition for review provided for in paragraph (b)(4) of this section. * * * * * 3. Sections 1201.116 through 1201.119 are redesignated as Secs. 1201.117 through 1201.120, and a new Sec. 1201.116 is added to read as follows: Sec. 1201.116 Appellant requests for enforcement of interim relief. (a) Before a final decision is issued. If the agency files a petition for review or a cross petition for review and has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit. (b) After a final decision is issued. If the appellant is not the prevailing party in the final Board order, and if the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under Sec. 1201.182. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under Sec. 1201.183. Dated: June 10, 1994. Robert E. Taylor, Clerk of the Board. [FR Doc. 94-14590 Filed 6-15-94; 8:45 am] BILLING CODE 7400-01-M