Federal personnel manual system

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Material Information

Title:
Federal personnel manual system
Portion of title:
FPM letter
Physical Description:
Book
Language:
English
Creator:
United States Civil Service Commission
United States -- Office of Personnel Management
Publisher:
United States Civil Service Commission
Place of Publication:
Washington, D.C
Frequency:
irregular
completely irregular

Subjects

Subjects / Keywords:
Personnel management -- Handbooks, manuals, etc -- United States   ( nal )
Civil service -- Handbooks, manuals, etc -- United States   ( lcsh )
Personnel management -- Handbooks, manuals, etc -- United States   ( lcsh )
Genre:
federal government publication   ( marcgt )
periodical   ( marcgt )

Notes

Issuing Body:
Vols for 1979- issued by: Office of Personnel Management.
General Note:
Description based on: 410-19 (Aug. 22, 1977); title from caption.
General Note:
Latest issue consutled: 292-23 (No. 3, 1983); title from caption.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 021549616
oclc - 06727309
lccn - 2009238041
System ID:
AA00012996:00049


This item is only available as the following downloads:


Full Text


Office of Personnel Management tt. LIS FPM Letter 772-9

Federal Personnel Manual System Published in advance
as .Published in advance
FPM Letter OCt & of incorporation in FPM
t, Suppl. 990-1.
SUBJECT: Publication of Final Regulations & he N REMAIN UNTIL SUPERSEDED
Merit Systems Protection Board RA

t TOO ? Washington, D. C. 20415
"SILTDR4 October 22, 1979
Heads of Departments and Independent Establishments:


1. The Merit Systems Protection Board (MSPB) published its final regulations in the
Federal Register on June 29, 1979. These final regulations govern the process by
which employees of Federal agencies may appeal personnel actions to the MSPB, the
manner in which agencies are to respond to MSPB on matters that employees have
appealed, and the manner in which the Office of Personnel Management (OPM) or
other parties will be allowed to intervene in appeal cases before the Board. The
final regulations replace the interim regulations of MSPB that were published on
January 19, 1979..

2. On July 31, 1979, MSPB published in the Federal Register a correction to a portion
of the final regulations that were published on June 29.

3. On August 21, 1979, OPM published in the Federal Register a set of amendments to
various parts and sections of Title 5 of the Code of Federal Regulations which
revise older text about appeals so it will conform with the final regulations
of MSPB.

4. MSPB has distributed copies of its final regulations to Federal agencies. As a
courtesy and a convenience to agencies, and to reemphasize the importance of these
regulations, we are attaching copies of the final MSPB regulations, the correction
for those regulations, and the OPM conforming amendments. We are publishing this
both in the form of a Special Bulletin (limited distribution to heads of agencies
and personnel directors at agency headquarters) and as a regular FPM Letter (wide
distribution to all subscribers to the Federal Personnel Manual).

5. Eventually, OPM will reprint the basic MSPB regulations on appeals procedures in
the portion of the Federal Personnel Manual (Supplement 990-1) which contains
fundamental laws, Executive orders, and regulations affecting personnel management.
This will provide a useful reference service for offices that subscribe to the FPM.
However, OPM will not be the source or distributor of authoritative copies of the
MSPB regulations or of any revisions that are made as time passes. Agencies will
be responsible for keeping informed about the MSPB regulations and other MSPB
issuances needed to conduct agency business and to advise employees of their rights
under MSPB regulations.

6. The MSPB regulations will also be published in the volume Title 5, Code of Federal
Regulations (CFR), compiled as of July 1, 1979; and in future volumes of 5 CFR
compiled as of January 1 of each year.







Inquiries: Policy Coordination Division, Office of Planning and Evaluation (202) 632-4628

Code: 772, Employee Appeals and Grievance Rights

Distribution: mFM


OPM FORM 652 1/79






















sUMMARY: On January 19, 1979. for the
purpose of implementing its
adjudicatory responsibilities under the
Civil Service Reform Act of 1978 (Pub. L
65-454), the Merit Systems Protection
Board ("the Board") published interim
regulations for immediate effect (44 FR
3946) relating to organization and
procedures.
On March 23,1979. the Board
published significantly expanded
proposed regulations inviting comment
from interested persons through May 22.
1979 (44 FR 17968]. The purpose of the
regulations is to inform Federal
agencies, employees, and other
interested parties as to the procedures
for processing appeals and cases of
original jurisdiction before the Board.
Because of the need for immediate
implementation of the provisions of the
Civil Service Reform Act, and because
the interim regulations by their own
terms will expire. the Board has
determined there is good cause for
publication of these regulations for
effect as of June 30,1979.
EFFECTIVE DATE: June 30. 1979.
FOR FURTHER INFORMATION CONTACT:
Alan Greenwald or Deborah House [202)
653-7101.
SUPPLEMENTARY INFORMATION: The
Merit Systems Protection Board was
created by the President's
Reorganization Plan No. 2 of 1978 and
the Civil Service Reform Act of 1978
("the Act"). One of the primary duties
assigned to the Board under the Plan
and the Act was the adjudication of
employee appeals from certain agency
actions as well as other matters brought
before the Board by the Special Counsel
or an agency for original determination.
The Reorganization Plan and the Act
required the Board to undertake
implementation of its adjudicatory
operations immediately. Accordingly, on
January 19. 1979, the Board published
interim regulations in order to permit it
to begin processing "new cases." i.e.,
those cases brought after the effective
date of the Act. Those interim
regulations will be superseded by these
final regulations effective June 30. 1979.


received by the Board criticized the
regulations as being "overly complex"
and "too legalistic." Further, many
commentators asserted that the
complexity of the regulations would be
beyond the ready understanding. of most
Federal employees and consequently
would discourage them from exercising
their appeal rights. Moreover, it was
submitted, the proposed regulations
would hamper adjudication of appeals
and therefore substantially delay
processing. Finally, many commentators
leveled criticism at the introduction of
traditionally adjudicatory concepts.
such as discovery and the issuance of
subpenas. into the Board's procedures.
Based on a careful analysis of the
legislative history of the Act it is the
Board's position that Congress intended
it to function as a quasi-judicial agency
and therefore it is essential that
formalized procedures be implemented
to process cases. This is particularly
necessary given the Congressional
mandate that employees receive full due
process rights in the adjudication of
their appeals. Accordingly, it was
necessary to set forth required
standards and procedures in some
detail.
Moreover, it should be recognized that
many of the "legalistic" concepts
incorporated into the proposed
regulations arose not out of Board
policy, but from legislative mandate.
The notions of subpoena power,
discovery, application of the "harmful
error" concept and preponderance and
substantial evidence standards are
required by the Act Therefore, the
Board has no discretion in their
implementation and the regulations.
accordingly, reflect these requirements.
This is not to say, however, that the
Board is unsympathetic to the
complaints of these commentators. For
that reason substantial effort has been
made to simplify the regulations.
These efforts include: (a) putting the
regulations into "plain" English to the
extent possible and providing an
explanation of legal terminology; (b)
perfecting the form for appeal which
employees themselves should be able to
file easily; and (c) eliminating the


regulations. Where the changes. mae up I
the sections are minor or technical-uinl."'
nature they have not been disonuaed.i::|
Part 1201-Practices aanPrd oeu
Section 1201.2 Original fursd!atiion
definition and application.
Definitional language has been Addt
to this section to clarify the meaning oi
"original" jurisdiction.
Section 1201.3 Appellate frisdictid ,
definition and application.
(a) This section has been amended to
reflect the Board's appellate ju.d
over certain actions where the OXS0
Personnel Management (OPM)ls'hBeil I
determining agency. The term "appil
jurisdiction" is used because the
is reviewing an appeal from an agenq!Y
action. Use of this term is not meantellb
indicate that the Board's review of te j
agency determination Is limited e6 i
traditional judicial appellate review.:
A number of commentators requeiatit
that the Board also provide an ItemimSil
listing of the actions appealable to op:
Board under OPM regulations. Becauir':1
such a listing would be subject to
change by the issuance of OPM
regulations, thus necessitating endless""
amendment to the Board's regulations,
the Board determined that it would be
inappropriate to accommodate this
request. Accordingly, reference must he
made to OPM regulations to determine
whether a matter is appealable in
instances where the Board's appellate
jurisdiction is not determined by stattt I
(b)(1) This subsection has been
amended to reflect the limitations
placed on appellate jurisdiction by
collective bargaining agreements.
(b)(2) This subsection has been
amended to make clear that the
employee must make a selection of
grievance or appeal procedures except
in certain instances.
Section 1201.4 Generaldefinitions.
This section has been revised for
purposes of clarification. Additionally,
an amendment has been made to the
definition of "appropriate field office" to
make it clear that the filing of an action
with a particular field office does not






Attachment I to FPM Ltr.772- 9
2 o Fcsal Relister / Vol. 44 No. 127 / Friday, June 29, 1979 / Rules and Regulations


mean that office will necessarily make
the initial determination. This is
particularly true in reduction-in-force
cases where several appeals fled in
different field offices as the result of a
single agency action may be
consolidated. Finally, the definitions of
"party," "petition for appeal" "petition
for review." "days" and "motions" have
been added, reflecting several comments
that the meaning of these terms was not
clear.
S- B-Hearing Pcednres for
Appillate Cases.
Genua
Section 12Z1.2 Revacation.
amendment or waiver of rues.
A significant number of comments
werreceived on this section, most of
which expressed concern that it allowed
tije Board or the presiding official.
without notice, to change regulations in
the course of a proceeding to the
possible detriment of the parties. That
was tnot the intent of the section, which
instead was intended to indicate (1) that
the Board might change these
regulations in the future; and (2) that a
presiding official has some flexibility.in
9the application of these rules to a
particular ease under adjudication,
specifically those of a procedural nature.
SThis section hbas now been amended
to reflect these objectives more clearly.
First, it indicates that the Board will not
change its rules except in the manner
prescribed by the Administrative
Procedure Act Second, it makes it clear
that waiver of a rule by a presiding
official is not permissible where the rule
is based on a statutory provision.
Rather, such waivers should be applied
only to technical requirements such as
time limitations, format of pleadings,
etc., where good cause shown justifies
such a waiver.
Petititons for Review of Agency Action,
Pleadfngsi
Sectioa 1b.21 Notice of appealrights.
As suggested, this section has been
amended to add requirement (d) to the
decision notice of the agency, to assist
the employee in determining which
procedure to use.
Section 120122 Filing ofpetiXionsfor
appeal andresponse.
The comments received on this
section can be divided into three
categories. First. some commentators
asserted that the proposed regulations
were unclear regarding when a petition
for appeal or response would be
considered officially filed with the
Board. In response to this comment the


Board has added subsection (c) which
requires that all mailings be made by
certified mail For purposes of
timeliness, the date of mailing, as
Indicated on the receipt will be
considered the official date of filing with
the Board. This method is necessary
because postmarks used by the U.S.
Postal Service do not consistently
indicate the date of mailing. Filings
which are personally delivered to the
Board will be considered filed an the
date of personal delivery. Because time
periods are computed on the basis of the
date of mailing, special provisions for
overseas filings have been eliminated,
since the date of the mailing, not the
date of delivery, is controlling.
Second, numerous comments asserted
that the five-day limit for agency
response provided in the proposed
regulations was totally unreasonable.
The Board agrees. The proposed
regulation contained a printing error
changing the actual proposed period
from 15 days to five days. In adopting
the 15-day period, the Board recognizes
that some may view this as unfair since
the appellant has 20 days to file an
appeal. However, the Board considers
this difference to be reasonable since
the agency will have perfected its record
at the time the decision notice is issued.
It should be noted that the
establishment of this 15-day period
supersedes all previous interim
directions of the Board.
Third. at the request of a number of
commentators, the provisions of this
section relating to the response of the
agency have been placed in a new
section. 12(1.25, which deals only with
that issue.
The Board also amended this section
to provide that the time period for filing
runs from the effective date of an action
rather than the decision notice or the
effective date. It is anticipated that this
will decrease the number of reduction.
in-force appeals because an employee
may be offered acceptable alternative
employment prior to the effective date,
but after the decision notice.
Section 1201.3 Computation of time.
This section has been revised to
clarify the method of computation.
Section 1201.24 Content ofpetitionfor
appeal, request for hearing
This section has been revised to make
it clear that the right to appeal is a
personal right which can only be
exercised by the employee, a designated
representative or a properly substituted
party. This terminates the practice of
accepting as appeals employee letters to


Members of Congress or the President
which are referred to the Board.
Additionally, paragraph (8) of
subsection (a) was added at the request
of the Federal Labor Relations
Authority.
Section 101.25 Content of agency
response. quest for hearing.
(a) This new subsection specifically
sets forth what information should be
contained in the agency response to a
petition for appeal. As proposed, there
was only a general reference to the
agency response in section 1201.24.
(b) This subsection retains the
provision that an agency request for a
hearing may be granted at the discretion
of the presiding official. A number of
agencies commented that giving the
appellant the right to a hearing, but not
the agency, is unfair treatment.
In response, the Board notes that this
regulation reflects 5 U.S.C. 7701(a)(l)
which gives the right to a hearing only to
the appellant However, presiding
officials. in their discretion, may grant
an agency request for a hearing on the
basis of the facts and circumstances at
hand. Because these differ so widely,
the Board has concluded it is not
feasible to establish specific standards
for the exercise of that discretion.
However, as a matter of policy, the
Board would disfavor the granting of
such agency requests in order to permit
the agency to complete an otherwise
incomplete record.
Section 1201.Z Number ofpleadings.
provision for service.
This section has been amended to
eliminate the proposed requirement that
the parties be held responsible for
service of pleadings. Many
commentators asserted that this
legalistic concept placed an
unreasonable burden on all parties,
especially appellants. Accordingly, the
Board will assume the duty of serving
pleadings on all parties.
One commentator suggested that
service upon the representative be
considered service upon the appellant
The Board believes that representatives
do not always immediately notify the
appellant of such service and this failure
can result in detriment to the appellant
To avoid this problem, the Board has
determined that it will make service
upon the representative and the
appellant
To enable the Board to carry out this
responsibility, parties will be required to
file additional copies of pleadings with
the Board. This eliminates the necessity
of having the Board duplicate the
pleadings.


38343


_























































the testimony provided by a witness
may have a later impact on that witness.
Moreover, this representation has been
previously permitted on an ad hoc basis
without detrimental effect. Accordingly,
the Board has rejected the requests that
this provision be deleted.
In response to one request for
clarification. it is the position of the
Board that representation for witnesses
may be supplied either by the agency at
its discretion, if the witness is an
employee, or by the witness at his/her
own expense. The statute provides the
Board with authority to award attorney
fees only to the appellant.


uuauI maOD ujaJu UAW ulDJIuEMulaU u
motions for permissive intervention
subject to interlocutory appeal
procedures. Third, the Board has
specified that individuals alleged to
have committed prohibited personnel
practices may request intervention.
Several commentators indicated
concern that Intervention would provide
a forum for individuals desiring to
publicize their objectives or that it
would grant rights to parties who should
not have them. It is the Board's position
that implicit in the standard that
permissive intervenors be "affected
directly" by a proceeding is the notion
that they must demonstrate the specific


rruceoure. however, umia pniursmiim
any other time limitation established bt
regulation, may be waived forga'l.i
cause shown.
Section 1201.M3 Consofidatj ci
joinder.
Subsection (a) of this section.lhatl"ab '
added to explain these legal poncepi. .k .i.
plain English.
Section 1201.37 Fees.
Several amendments have been made -
to this section in response td the
comments.
First, the time for filing a request r..
attorney fees and response has bedi:






Attachment I to FPM Ltr.772- 9
4 of eral Register / VoL 44. No. 127 J Friday, June 29, 1979 /


Rules and Regulations


increased from seven days to 10, and the
time runs from the date of finality as
newly-defined in 1201.113.
Second, a provision has been added to
permit either party to petition for review
of the determination of the presiding
official. The time for filing this petition
shall run from the date of receipt of the
final decision.
Several agencies also made the
suggestion that attorney fees should be
awarded to the agency if the appeal was
without merit. The Act authorizes
payment of attorney fees only to the
appellant Accordingly, this suggestion
must be rejected.
Finally, it was suggested that the
Board establish specific standards for
awarding attorney fees. Because of the
changing nature of the law on this issue,
it is the position of the Board that
establishing such standards in
regulation form would be impractical
residing Officials
Section 1201.41 Presiding officials.
Subsection (a) of this section has been
amended to reflect the instances in
which the presiding official will exercise
his/her authority.
In response to comments received by
the Board, other amendments have been
made.
First, standards for ordering the
production of evidence and the
appearance of witnesses have been
added. Second, a provision allowing
prehearing conferences has been added.
Third, a general statement authorizing
the presiding official to exercise
authority in accordance with law has
been added. Finally. a provision has
been added authorizing the presiding
official to hold a hearing on his/her own
motion.
Section 1201.42 Disqualification of
presiding official.
This section has been substantially
revisedito subject the disqualification
issue to the interlocutory appeals
procedure rather than treating it
separately. This change is expected to
provide greater consistency in the
treatment of this issue as well as others
certified to the Board in the course of a
proceeding.
Section 1201.43 Sanctions.
This section has been amended in two
regards. First, It has been revised to
make It clear that these sanctions will
not be imposed if the parties can
demonstrate good cause for their failure
to take an action. While the Board is
sympathetic to the problems which may
arise in the course of a proceeding, it is


nonetheless its firm position that delay
in the proceedings that harms other
parties will not be tolerated.
Therefore, in order to avoid the
imposition of these sanctions, all parties
must meet the burden of moving forward
in a manner consistent with these
regulations.
Second, subsection 1201.43(d) has
been eliminated since service will now
be undertaken by the Board rather than
the parties.
Hearings
Section 1201.5 Scheduling the
hearing.
In response to the comments received,
this section has been amended to delete
the requirement that parties attend
hearings. Additionally, the provision
that the agency may be required to
provide a hearing room has been
clarified to indicate that the agency
shall provide only the space, not other
services such as a stenographer, etc.
Finally, the requirement has been added
that a request for postponement shall be
supported by an affidavit setting forth
the reasons therefore. Since Congress has
mandated that adjudications receive
expeditious treatment, the Board has
rejected suggestions that the time for
scheduling a hearing be extended
beyond 15 days.
Section 1201.52 Public hearings.
This provision remains essentially
unchanged. Several agencies suggested
that a hearing be closed when it is in the
best interest of the agency. The Board
has rejected this suggestion because it
has determined that the interests of the
agency and the public coincide.
Section 1201.53 Transcript.
This section has been revised to
clarify that a transcript will be made at
each hearing and a copy provided to the
appellant and the agency. Additionally,
at the suggestion of several
commentators, the Board has adopted
an amendment allowing the time for
submitting corrections to run from the
receipt of the transcript by the parties.
Section 1201.55 Motions
This section has been substantially
revised to clarify the language and to
specify that opposing parties shall
always be given the opportunity to
object to any motion.
Section 1201.56 Burden and degree of
proof, affirmative defenses.
A number of commentators asserted
that this proposed section appeared to
place the burden of proof on the
appellant Since the statute requires


precisely the opposite, the Board has
made it clear that the burden of proof is
on the agency. If the agency meets the
burden of proof, the Board must sustain
its decision. An exception to this rule
occurs when the appellant can
demonstrate one of three affirmative
defenses. In that instance, the agency
decision must be overturned even
though the burden of proof has been
met.
Finally, the reference to OPM
regulations in proposed subsection
(a)(l])iii) has been removed in order to
reflect the statutory language of 5 U.S.C.
7701(c)(2).
Evidence
Section 1201.61 Service of documents.
This section has been revised to
indicate service will be made by the
Board. Additionally, the subsection
providing for service of certain medical
evidence only to a physician designated
by the appellant has been deleted in
light of the trend to provide medical
records directly to individuals to whom
they pertain.
Section 1201.62 Admissibility.
Subsection (b) has been clarified to
indicate that a description of excluded
evidence or testimony shall be placed in
the record. This will allow the Board to
determine, on review, whether the
evidence or testimony was properly
excluded.
Section 1201.63 Production of evidence
by order of presiding official.
This section remains as proposed. The
suggestion of one commentator that the
presiding official may request only
"existing" evidence has been rejected
by the Board. In some instances it may
be necessary for the presiding official to
request the submission of evidence
which must then be compiled by the
party. This is particular true in mixed
cases where evidence such as statistics
on promotions, hirings, etc., might not be
maintained by the agency, but is
nonetheless essential to the processing
of the case and therefore must be
produced.
Section 1201.64 Production of
statements.
This section has been revised for
clarification and to indicate that the
statements sought are those made by
witnesses prior to testifying at the
hearing.
Section 1201.65 Admission of facts and
genuineness of documents.
This section has been revised to
indicate that admissions are not


38345






Attachment I to FPM Ltr.772- 9
Federal Register / Vol. 44. No. 127 / Friday. June 29, 1w ?MtM and Regulations


appropris to on issues of law. but rather
on the application of law to fact This
provision as now written is in
accordance with the Federal Rules of
Civil Procedure.

Section 131.72 Explanation and
scope.
This section has been revised to add a
subsection explaining the notion of
discovery in plain English.
Sections 1201.73 Orders for discovery
120I.75 Rules governing discovery.
These sections have been revised to
make dear that the presiding official
will oversee and direct the discovery
process. This has been determined by
the Board to be necessary given the
legalistic nature of the procedure as well
as the necessity for expediting the
process.
Subpenas
Sections 1201.81-1201.85
In response to the comments received
a number of technical amendments have
been made to these sections including:
(a) Addition of a requirement showing
materiality for issuance of a subpoena;
and
(b) A clarifying statement that it is not
necessary to demonstrate that voluntary
compliance would not be made to a
request for witnesses or other evidence
in order to obtain a subpoena.
Interlocutory Appeals
Sections 1201.91-1201.93
These sections replace proposed
section 1201.91 which did not authorize
interlocutory appeals unless specifically
provided for by the regulations.
Upon reconsideration, the Board has
determined that a general provision
permitting interlocutory appeals would
be productive. This change is required
because the Board must provide
immediate, precedent-setting
interpretations of the Act and the
regulations issued under the Act.
Through the interlocutory appeals
procedure, the Board expects that It will
have many opportunities for such
interpretations. These interpretations
will provide guidance to presiding
officials, agencies and appellants.
Several important elements of this
procedure should be recognized.
First, the standards for determining
whether a presiding official should
certify a question to the Board parallel
those of the Federal Rules of Civil
Procedure. Accordingly, court
interpretations of the Rules may be used
as guidance on this issue.


Second. the section provides that
where a presiding 6ffldal determine an
issue shall not be certified It may be
submitted later to the Board in a petition
for review. This provides the petitioner
with an opportunity for Board
consideration of an Issue despite the
initial determination that it should not
be certified to the Board. Given the
expeditied processing of Board cases
this will allow the party seeking review
to obtain prompt consideration of
disputed issues.
Finally, this rule provides that the stay
of a proceeding during an Interlocutory
appeal process will be at the discretion
of the presiding official, unless overruled
by the Board. The Board disfavors
staying any case unless absolutely
necessary. In most instances the
pending determination of the Board on a
certified issue should not impede
continuation of the fact finding process.
Thus, stays should be granted only
when a Board determination toIs of such
importance that the case cannot proceed
without it. Moreover, by limiting the
instances in which a stay is granted, the
Board prevents use of the Interlocutory
appeal procedure as a delaying tactic.
Ex Parte Communications
Based on the experience of the Board
and comments received, substantial
efforts have been made to clarify the
application of this provision. Ex part
communications are not prohibited in
and of themselves, but only where the
communication goes to the merits of the
case or otherwise violates the rules.
Presiding officials must be permitted
sufficient flexibility to process cases
while remaining insulated from parties
who would improperly'seek their action
or advice. Two significant revisions
have been made to this section to
achieve these objectives.
First, the concept has been explained
in plain English. Second. language hay
been added in both the explanation and
1 1201.102 to make it clear that oral
communications regarding procedural
Issues are prohibited if the regulations
require that they be in writing. This
provision specifically applies to motions
which must be In writing.
It is the intent of the Board that
application of this provision be made
only to ensure the rights of the parties to
a fair and impartial adjudication and not
to hinder the proceedings.
Final Decisions
These sections have been revised to
introduce the notion of constructive
receipt Under this concept it will be
presumed that parties have received a
copy of the Board's determination five


days after lsasuance. This will permit the
presiding official to Include a specific
effective date in the Initial decision. The
Board has determined that application
of constructive receipt is essential to pat
the parties on adequate notice of whse;
decision of the Board must be
Implemented. The presumed date of .
constructive receipt Is subject to
rebuttal.
Section 1201.11 Initial decision by ]
presiding official.
Few comments &ere received asn Abil
section. However, the Board has ''
changed it in two specific regards HMH
subsection (a) provides that "parties'' jl
refers to all parties to the appeati'th.&
named parties and intervenorm. whelk; 5
permissive or of right Second.
subsection [b] has been expanded i l
provide that each initial decision shal
contain among its elements a stataililll
of further right to appeal. The Board ""
rejected the suggestion of one
commentator that the reference In
subsection (a) to 'recommend" dehaug lt
be eliminated. since an adminstrEati. ll
law judge is specifically required 1li
render a recommended decision i: '
Special Counsel cases under I 2nt 2s.-
Section 1201. 112 jurisdiction of
presiding official.
This section has been shortened
substantially and the language
simplified to accord with the numo ..
gerieral objections to the complexity
the regulations as proposed. The Board
declined to incorporate one suggestion
that the request for attorney fees bei
available to agencies, since the Act
provides only appellants may request
attorney fees.


Section 1201.113 Finality of decision.
The Board received several comments
suggesting restructuring of this section
and I 1201.114. The Board has combined
former I 1201.114 into a new subsection
(e) of I 1201.113. Subsection (a) has been
revised to indicate the period within
which a party must file a petition for
review or within which the Board muet
reopen In order to avoid finality under
the 35-day rule. The latter is not to
suggest, however, that the Board cannot
reopen subsequent to finality but only
that the final decision Is subject to
judicial review at that time. Subsections
(bJ and (c) have been changed to specify
the finality date more precisely.
Subsection (d) was added to Indicate
the possibility of extensions of time for
filing a petition for review.


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Section 120.114 Filing of petition for
review.
'This section, formerly 1 1201.116, has
been placed ahead of former 51201.115,
for clarity and to achieve a more logical
organization of the provisions.
Subsection (a) was revised to include
the Special Counsel as one who may file
a petition for review.
Several commentators objected to the
difficulty of determining the date of
delivery under the proposed regulations.
The Board resolved the problem by
providing for a date of constructive
receipt of the initial decision five days
after issuance (which begins the
computation of time for filing a petition
for review). Subsection (a) has been
amended to eliminate the provision that
OPM could request review on the basis
of "a more Government-wide policy
directive" that was contained in
S 1201.115(c).
In response to one comment, the new
I 1201.115 has been revised to provide
all parties with an opportunity to
respond to a petition for review.
Nonetheless, under I 1201.117, the Board
may reopen a case on its own motion
without providing an oooortunity for
comment
Sedion 1201.118 Judicialreview.
This section has been added to clarify
the right to appeal a final Board decision
under 5 U.S.C. 7703.
Subpart C-Actions Brought by the
Special Counsel
Section 1201.121 Scope, compliance
with Subpart B.
This section has been revised to
clarify the scope of the regulations
governing Special Counsel actions.
Section 1201,.122 Filing and service in
Special Counsel cases.
Subsection (a) of this section was
added to provide that service of process
will be required of both parties in
Special Counsel oases.
As noted previously, the Board
eliminated the service of process
requirements from subpart B. However,
In a Special Counsel action the exhibits
and attachments may be volumninous
and assembling copies necessary to
effect service could work a hardship on
the Board. Moreover, in a stay action,
the time frame is so limited that service
by the Board would not be practical.
Finally, the Special Counsel is required
to serve the employee named in a
complaint brought under 1207.
Therefore, it is reasonable to require the
employee to reciprocate. Accordingly,
the Board determined to exercise its


general regulatory authority under 5
U.S.C. 1205(g) to require the parties in
Special Counsel actions to accomplish
service of all complaints and requests.
together with tabbed and numbered
e:hibits and attachments. Subsection (b)
was added to set out the method of
making service, whether by mail or in
person.
Section 1201.123 Special Counsel
complaints.
This section has been revised for
clarification. In addition, the Board has
expressly provided that it may require
the filing of briefs by all parties involved
in cases brought by the Special Counsel.
Section 1201.124 Rights of employees.
This section has been revised to set
out more clearly the statutory rights of
employeesnamed in Special Counsel
complaints.
Section 1201.125 Answer.
This section, formerly I 1201.124, has
been redrafted for clarification. One
commentator objected to the provision
in subsection (1) that unanswered
allegations be considered true. The
Board has declined to adopt that view.
Section 1201.12 Final arders of the
Board.
The Board redrafted this section in
several regards. First, it makes clear in
subsection (c) that the more flexible
discipline afforded by 5 U.S.C. 1207 may
be imposed in cases brought under 5
U.S.C. 7324. Second, subsection (d) has
been revised to correct the erroneous
reference to 5 U.S.C. 1508 that appeared
in the proposed regulations at
I 1201.125(d). and to limit the amount
that can be withheld in accordance with
the statutory provision. Third, it added
subsection (e] to set forth sanctions
available under the Federal Employees
Flexible and Compressed Work
Schedule Act. The Board considered and
rejected the suggestion by OPM that the
regulations specify that OPM may
intervene in Special Counsel cases in
the same manner as Board cases under 5
U.S.C. 7701. The statute does not confer
such a right upon OPM: rather, 5 U.S.C.
1206(c)(1)(B) merely specifies that the
Board may order corrective action only
after the agency and OPM have had the
opportunity to comment. As drafted, the
provision follows the statute, and has
been retained substantially as it
appeared in I 1201.126(a] of the
proposed regulations. However, a
motion for permissive intervention by
OPM may be granted by the Board.


Section 1201.127 Request for stay.
In this section the Board has set forth
in considerably greater detail the
procedures to be followed in filing and
processing requests for stays,
distinguishing between those requested
under 5 U.S.C. 1208(a([1), (b) and (c),
and has emphasized the fact that the
Board has broad discretion in the
conduct of stay proceedings. Several
commentators indicated general
hostility to the stay procedures. These
provisions are statutory and the
summary proceeding provided under 5
U.S.C. 120(a)(1) was careful
considered by the Congress and does
not, as one commentator suggested,
constitute a "Star Chamber" proceeding.
Section 1201.128 Administrative
qppeal;judicialreview.
This section sets forth the judicial
review provisions appliable to Special
Counsel actions, in addition to
Incorporating the proposed provisions
regarding administrative review.
Section 1201.129 Special Counsel
actions heard by an administrative low
judge.
Subsection (b) has been revised to
provide that the period for filing
exceptions to a recommended decision
of an administrative law judge in a
Special Counsel action be extended
from 20 to 30 days, and the computation
of time has been clarified. The revised
provisions also specifies that only
parties to a Special Counsel action may
file exceptions to a recommended
decision of an administrative law judge.
Action Against Administrative Law
judges
Section 1201.132 Presiding official.
Subsection (cl has been changed to
conform the length of time available for
filing exceptions to the 30 days provided
elsewhere in the regulations, and to
compute the time for filing from the date
of receipt of the recommended decision.
Removal From Senior Executive Service
Section 1201.142 Hearing procedures.
referral of transcript.
This section has been revised to
specify that the SES member is entitled
to representation during the hearing.
Additionally, the section has been
expanded to make the proceeding one of
record and to provide for referral of the
record to the Special Counsel, the
Board's Office of Merit Systems Studies
and Review. OPM, and employing
agency for any action appropriate.


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Subpart D-Procedures for Cases
Involving Allegations of Discrimination
These sections address appeals
brought under 5 U.S.C. 7702 known as
"mixed cases." These cases involve
matters otherwise appealable to the
Board where the appellant alleges
discrimination as an affirmative defense
to the action of the agency. These
sections have been revised substantially
on the Board's own initiative and to
reflect the numerous comments received
and on the Board's own iniative. The
Board drafted them. mindful that the
statutory provisions are extremely
complex and the procedures somewhat
overlapping and unclear. Accordingly.
the regulations reflect a very conscious
effort to set out all aspects of the mixed
case process chronologically and in
considerable detail. While there has
been a concerted attempt to eliminate
legalistic language whenever feasible, it
has proven impossible to eliminate or
simplify all legal concepts.
Section 1201.154 Time for filing
petition.
This section was formerly part of the
proposed 1201.153. That section was
divided into two parts for clarification.
The largest number of comments
received on proposed 1201.153.
however, were with regard to the
provisions now contained in the new
1201.154. These comments ranged from
suggestions for technlutical changes to
suggestions that the time for filing a
discrimination appeal in the absence of
an agency determination on a complaint
be terminated at some point. The Act
specifies that the appellant may file an
appeal with the Board after filing a
formal complaint with the agency, if the
agency has not resolved the matter in
120 days. However, the Board, by
regulation, is requiring that in those
cases where the agency has taken no
final action, the employee must file an
appeal with the Board no later than one
calendar year after the filing of the
formal complaint in the agency. The
Board has determined that this
limitation is necessary because in its
absence, the information necessary to
adjudicate the case might be
unavailable. Moreover, it is in
accordance with the underlying premise
of the Act that employee-agency
disputes be resolved fairly and
expeditiously.
The Board has also declined to follow
the suggestions of many commentators
that it incorporate into its regulations
some sort of election of procedures
concept whereby appellants would be
precluded from raising their claims of


discrimination before the agency as well
as before the Board. While the Board is
cognizant of the problems created by a
multi-track system for the resolution of
issues. it has nonetheless concluded that
the statute does not permit it to limit an
employee's request to combine a
discrimination complaint with a matter
otherwise appealable before the Board.
In addition. FLRA and OPM have
expressed concern about the 120.day
time limit on completion of negotiated
grievance procedures before appeal
rights to the Board arise. Both suggest
that these negotiated procedures are
difficult to complete within that time
frame. In response, the Board has
revised the provisions of this section to
indicate it will review only a final
decision under the negotiated grievance
procedure, regardless of the time for
processing.
Section 1201.155 Allegations of
discrimination not raised in petition.
The Board received numerous
comments on this subject, many adverse
to the Board's decision to permit an
appellant to raise a discrimination
complaint at any time. The legislative
history makes it clear that the Board is
to be liberal in receiving discrimination
complaints, and the Board has adopted
a conforming policy position. The fact
that regulations in effect prior to the Act
treated the timeliness issue differently is
without effect in light of the clear
Congressional intent. Accordingly, that
provision has been retained, with the
exception that subsection (a) has been
revised to state that the allegation may
be raised at any time provided the
appellant did not previously know of the
discrimination. Subsection (a) also
provides that the discrimination charge
must be directly related to the adverse
action. Subsection (b) has been
expanded to provide that the presiding
official must exercise his/her authority
liberally in developing the record in
cases where the issue of discrimination
is raised during a proceeding under 5
U.S.C. 7701. This subsection also
specifies that, upon agreement of the
parties and determination by the
presiding official that justice would be
served thereby, a proceeding under 5
U.S.C. 7702 may be remanded to the
agency for fact finding. Subsection (c).
permitting agency response, has been
retained. Such an agreement will place
an appellant in the position he/she
would have been in if he/she had filed a
complaint with the agency prior to
coming to the Board. The 120-day
limitation on the removal assures the
appellant that the agency will act on the
matter within the same time period as it


would have been required to do if the
appellant had not filed with the Board.
Because the right to appeal directly to
the Board rather than going through the
agency, inures to the benefit of. :
appellant, remand to the agency ,
constitutes a waiver of that right.
Therefore, the appellant must be ematiul.
willing .to participate in the mraien&a -..
procedure before the Board will perult"..
it. a


Section 1201.15 Finaldecisioma, i ir
of judicial rview. This section hapil
revised to reflect the 30-day period
within which judicial review must
sought upon receipt ofa finalBo
decision.
Review of Board Deciaoni .: I.
Section 1201.161 Action by the..
Commission, finality and judicial
review. This section has been revuis4"
set out more fully the steps involv"i ,
the review of the Board's decision by the
Equal Employment Opportunity :.. : :1
Commission. Subsection (e) of this : iii||
section has been expanded to tndicate'.:
the steps the Bqard might take in th"
event the Commission requests it to '
develop additional evidence. Subsvinpu
(f) has been added to et out the
judicial review upon conclusion of ipi.
Commission's review if the Commfis..1,
concurs in the prior decision of the
Board.
Section 1201.182 Board action an Mi
Commission decision.
This section has been revised for
clarification and subsection (b) has been
added to indicate the right to judicial '
review if the Board concurs in or adopts
the decision of the Commission.
Special Panel
Section 1201.172 Action by Special
Panel.
This section has been revised to set
forth in greater detail the chronology of
actions to be taken by the Special Panel.
Subsection (a) indicates that ihe
procedures to be followed by the Special
Panel will be set by the Panel when and
if one is convened under the statutory
provisions. Subsection (cJ has been
added to indicate the right to judicial
review of the final decision of the
Special Panel.
Section 1201.173 Judicial review of
cases decided under 5 U.S.C 7702.
This section has been added to the
regulations to set out the general
provisions relating to judicial review of
proceedings under 5 U.S.C. 7702 cases.
Unlike the cases decided under 5 U.S.C.
7701, review lies in the appropriate


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United States district court, under the
various statutory provisions in 5 U.S.C
7702.
Subpart E-Enforcement of Final Orders
This section has been revised
substantially to set forth the method by
which a party may obtain enforcement
of a Board order issued under its
appellate or original jurisdiction.
It was the determination of the Board
that intital review of a petition for
enforcement issued under its appellate
jurisdiction would be made in the field
office which is more likely to have
familiarity with the case. However, a
petition for enforcement of an order
under the Board's original jurisdiction
would be reviewed by the Board itself,
since it had originally processed the
case. When the petition is submitted to
a field office the determination of the
Chief Appeals Officer is subject to a
petition for review to be filed by the
agency or the appellant with the Board.
Further, it was the determination of the
Board to permit field officials to
undertake voluntary compliance with a
Board order, but to reserve actual
enforcement of that order to the Board
itself.
Finally, the Board declined to amend
5 2201.184 in accordance with the
suggestion that a hearing should be a
matter of right in an enforcement
proceeding.
The Act does not impose a hearing
requirement on the Board and,
accordingly, the Board will retain
discretion over whether to hold a
hearing depending on the facts and
circumstances presented.
Subpart F-Saving Provisions
The Board has added Subpart F,
Savings Provisions, to give appellants
notice of its interpretation of section 902
of the Act (5 U.S.C. 1101 note], and to
assist in eliminating widespread public
confusion on where to file appeals. In
the interest of affording maximum rights
to appellants, the Board has read the
savings provisions broadly to apply to
all cases pending in the administrative
system on the effective date of the Act,
including cases decided but not filed in
court. Thus, for example, under the
Board's interpretation of Section 902 of
the Act, a case involving an adverse
action taken in late December 1978 [pre-
Act), appealed to the Board in mid-
January, and decided in February would
be subject to the same judicial review as
was available at the time the appealable
action arose. The Board has already
taken this position in pending litigation
with the full concurrence of the
Department of Justice, and motions to


dismiss old system cases from the courts
of appeals have been filed. The Board
intends to follow this procedure on all
old system cases unless it is ordered to
do otherwise by a court.
Appendix I
The Board received numerous
comments on the appeals form, most of
which were favorable to the concept.
The form has been reorganized to place
the section dealing with reduction in
force actions at the end as Part IV,
rather than in the middle as part M. The
Introduction has been revised to
emphasize that only those appealing RIF
actions need complete Part IV, but that
all appellants must complete Parts I
through MU. In addition, the certificate of
service and references to it have been
omitted in accordance with the Board's
policy decision to effect service itself
rather than imposing that obligation on
individual appellants. Otherwise, the
form remains substantially as proposed.
The Board has arranged for these forms
to be made available from the General
Services Administration as soon as
possible. However, copies of the form
are being distributed to interested
parties along with copies of these
regulations. In the interim, photocopies
of the form may be used by the agencies
to distribute to potential appellants.
In consideration of the comments
received and pursuant to the authority
contained in 5 U.S.C. 1205(g), permitting
the Board to "prescribe such regulations
as may be necessary for the
performance of its functions," 5 CFR
Parts 1200-1202 are amended.
Issued on June 27,1979, at Washington.
D.C. by Order of the Board.
Ruth T. Pokop,
Chair, Merit Systems Protection Board.
Accordingly, 5 CFR is amended by
revising Parts 1200-1202 as follows:
SUBCHAPTER A-ORGANIZATION AND
PROCEDURES
PART 1200-BOARD ORGANIZATION
Subpart A-General
Sec.
12oo.1 The Board.
1200.2 The Chair, Vice Chair.
Subpart B-Offices of the Board
[Reserved]
Authority: 5 U.S.C. 1101 et seq.
Subpart A-General
11200.1 The Bord.
The Merit Systems Protection Board
("The Board") is composed of three
Members who are appointed by the
President with the advice and consent of


the Senate, and whose terms are for a
period of seven years.
91200.2 The Chair, Vice Chair.
One of the Members of the Board
shall be appointed by the President.
with the advice and consent of the
Senate, to serve as the Chair and chief
executive and administrative officer of
the Board. From time to time, the
President shall also designate one of the
Members of the Board to serve as Vice
Chair. In the absence or disability of the
Chair, or when the Office of the Chair is
vacant, the Vice Chair shall perform the
functions vested in the Chair. During the
absence or disability of both the Chair
and Vice Chair, or when their offices are
vacant, the remaining Board Member
shall perform the functions vested in the
Chair.

Subpart B-Offices of the Board
[Reserved]

PART 1201-PRACTICES AND
PROCEDURES
Subpart A-Jursdiction and Defininons
Sec.
1201.1 General.
1201.2 Original jurisdiction: definition and
application.
1201.3 Appellate jurisdiction: definition and
application.
1201.4 General definitions.
Subpart 9-Hearing Procedures for
Appellate Cases
General
1201.11 Scope and policy.
1201.12 Revocation, amendment or waiver
of rules.
Petitions for Review of Agency Action,
Pleadings
1201.21 Notice of appeal rights.
1201.22 Filing of petitions for appeal and
response.
1201.23 Compulation of time.
1201.24 Content of petition for appeal. right
to hearing.
1201.25 Content of agency response, request
for hearing.
1201.28 Number of pleadings, provision for
service.
1201.27 Class actions.
Parties, Practitioners, and Witnesses
1201.31 Representation.
1201.32 Witnesses: right to representation.
1201.33 Federal witnesses.
1201.34 Intervenors.
1201.35 Substitution.
1201.36 Consolidation or joinder.
1201.37 Fees.
Presiding Officiai
1201.41 Presiding officials.
1201.42 Disqualification of presiding official.
1201.43 Sanctions.


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1201.51 Scheduling ta hearing.
1201.52 Public hearings.
1I1.M Transcript.
1201.54 Ofical record.
1201.55 Motiena
1201.5 Burden and degree of proof
affirmative defenses.
1201.57 Closing the record.

1201.61 Service of documents.
1201.2 Admissibility.
t 0 Production of evidence by order of
presiding officiaL
1201.4 Production of statements.
I01.S Admission of facts and genuiness of
documents.
1201.6 Stipulations.
1201.67 Offical notice.

1201.71 Statement of purpose.
1201.72 Explanation and scope.
1201.73 Orders for discovery.
1201.74 Taking of depositions.
1201.75 Rules governing discovery
procedures.
Subpenas
1201.81 Motions for subpenas.
1201.62 Motions to quash.
1201.83 Service.
1201.84 Return of service.
1201.65 Enforcement.
Interlocutory Appeals
1201.01 Explanation.
1201.92 Criteria for certification.
1201.93 Procedure.
Ex Parte Communications
1201.101 Explanation and definitions.
1201.102 Prohibition.
1201.103 Placement in the record; sanctions.
Final Decisions
1201.111 Initial decisions by presiding
officials.
1201.112 Jurisdiction of presiding official.
1201.113 Finality of decision.
1201.114 Filing of petition for review.
1201.115 Contents of petition for review.
1201.116 Procedure for review or reopening.
1201.117 Board reopening and
reconsideration of case.
1201.118 Judicial review.
Subpart C-Hearing Procedures for Original
Jurisdiction Cases
Actions Brought by the Special Counsel
1201.121 Scope and compliance with
subpart B.
1201.122 Filing and service in Special
Counsel actions.
1201.123 Special Counsel complaints.
1201.124 Rights of employees.
1201.125 Answer.
1201.126 Final orders of the Board.
1201.127 Request for stay.
1201.128 Adminsitrative appeal, judicial
review.
1201.129 Special Counsel actions heard by
administrative law judge.


Actions Agailn Admlnisr lve Law Judges
1201.131 Procedures.
1201.132 Presiding official.
1201.133 Board jurisdiction.
1201.134 Filing of complaint.
1201.135 Procedure.
1201.136 Showing required.
Removal From the Senlor Exammtive Service
1201.141 Right to hearing.
1201.142 Hearing procedures: referral of
transcript.
1201.143 Right to appeal.
Subpart D-Procedures for Cases Involving
Allegations of Discrimination
1201.151 Scope and policy.
1201.152 Compliance with procedures under
subpart B
120m1.153 Contents of petition.
1201.154 Time for filing petition.
1201.155 Allegations of discrimination not
raised in petition.
1201.156 Time for processing appeals
involving allegations of discrimination.
1201.157 Presiding official.
1201.158 Final decision, notice of judicial
review.
Review of Board Decision
1201.161 Action by the Commission. finality
and judicial review.
1201.162 Board action on the Commission
decision.
Special Panel
1201.171 Referral of case to Special Panel.
1201.172 Action by Special Panel.
1201.173 Judicial review of cases decided
under 5 U.S.C. 5 7702.
Subpart E-Enforcement of Final Order
1201.181 Petition for enforcement.
1201.182 Compliance.
1201.183 Referral to the Board.
1201.184 Enforcement action by Board.
Subpart F-Saving Provisions
1201.191 Saving provisions.
PART 1201-APPENDIX I MERIT SYSTEMS
PROTECTION BOARD APPEALS FORM
PART 1201-APPENDIX II APPROPRIATE
FIELD OFFICE FOR FILING APPEALS
Authority: 5 U.S.C. 1101 et seq.
Subpart A--Jursdiction and
Definitions.
11201.1 General.
The Board exercises two types of
jurisdiction, original and appellate.
1201.2 Original jurisdiction: Definition
and application.
The Board has original jurisdiction
over" cases in which no formal agency
action has been taken including:
(a) Actions brought by the Special
Counsel;
(b) Requests for informal hearings in
cases of persons removed from the
Senior Executive Service:


(c) Employee disciplinary acHi..
under the Federal Emplopees Hes i:
and Compressed Work Schedule Aoi
and ,o
(d) Actions against adnmdistratmv
judges.


11201.3 Appelajmiaf slU b.-Q0
and appileo ti e
(a) Appellate iujedicU'on er
The Board has appellate jdrdisdit
over cases specified in the Anct wiM
there have been prior actions within q|
agency. This includes certain ldi
of the Office of Personnel Maga...
relating to retirement and insuring
benefits. This appellate juxedihti '
includes:
(1) Removal or reduction-in,g'dtk|
competitive or preference eli'gib).
employees;. j
(2) Denial of within-grade step
increase" .. .'.'*t?
(3) Actions based upon removal".
suspension for more than 14 d .ays,.. '..-"ll
reduction-in-grade or pay, or f isy" p,
for 30 days or leas 4!
*(4) Certain actions relating to theii
Senior Executive Service:;
(5) Actions otherwise appealab ile 1
the Board involving an allegation :of Ilf
discrimination;
(6) Determinations relating to
disability retirement health insuiraneii.
and annuities;
(7) Actions involving reinstatemntii
preference eligibles; and
(8) Those actions for which '
jurisdiction may be properly granted hby: -i
regulations of the Office of Personnel:
Management [OPM).
(b) Limitations on appellate
jurisdiction; collective bargaining .:
agreements and election of procedures:
(1) Exclusive procedure Where an
employee is covered by a collective
bargaining agreement which provides
exclusive negotiated grievance
procedures for specific matters under 5
U.S.C. 7121. the employee may not
appeal those matters to the Board.
(2) Election ofprocedure. Where a
covered employee has initially elected,
to utilize a nonexclusive negotiated
grievance procedure, he/she may not
appeal the matter to the Board. This
election, however, does not prohibit an
employee from requesting Board review
of a decision involving discrimination.
01201.4 General deflnitions
(a) Presiding official. Any person
designated by the Board to preside over
any hearing or to make a decision on the
record, including an appeals officer, an
administrative law judge, the Board, or
any of the Members of the Board


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(b) The Act The Cil Service Refoia
Act of 1Tr (Pub. L 9-4).
(c) Pledings. Briefs. motionu
petitions and attachments
(d) Motions. A request to a presiding
official to take a particular action.
(e) Appropriate field office. That
office listed in Appendix II in the aree
where the appellant's duty station was
located when the agency action was
taken. This does not however, limit the
Board from transferring the matter for
adjudication to another field office when
to do so would facilitate processing.
(f) Party. An individual, agency,
intervenor, the Office of Personnel
Management or the Special Counsel
who is participating in an adjudication
before the Board.
(g) Petition for appeal The request
filed with a Board field office for review
of an agency action.
(h) Petition for review. The request
filed with the three-member Board in
Washington. D.C., for review of an
initial decision of a presiding official.
(i) Day. Calendar day.
Subpart B-Hearing Procedures for
Appellate Cases.
General
I OTI Scope and podlcy.
The, rules in this subpart apply to
appellate proceedings of the Board.
These rules also apply to original
jurisdiction proceedings of the Board
except as otherwise provided in Subpart
C. It is the policy of the Board that these
rules shall be applied in a manner which
expedites the processing of each case,
but with due regard to the rights of all
parties.
# 1201.12 Revocation, amendment or
waiver of rules.
The Board may revoke, amend or
waive any of these regulations as they
apply generally to all cases in
accordance with the applicable
procedures of the Administrative
Procedure Act. A presiding official may
waive a Board regulation in an
individual case for good cause shown if
application of the regulation is not
required by statute.
Petitions for Review of Agency Action,
Pleadings
I1201.21 Notice of appeal rights.
When an agency issues a decision
notice to an employee on a matter
appealable to the Board the agency shall
provide:
(a) Notice of the time limits for
appealing to the Board and the address


of the appropriate Board office for filing
the appeal:
(b) A copy of the Boardsa regulations:
(c) A copy of the appeal form
contained in Appendix L; and
(d) Notice of any applicable rights to a
grievance procedure.
S1201.22 Fling of petlions brappel and
response.
(a) Place of filing. Petitions and
responses shall be filed at the
appropriate Board field office.
(b) Time of filing. Petitions for appeal
must be filed anytime during the period
beginning with the day after the
effective date of the action being
appealed until not later than 20 days of
the effective date. Responses to
petitions for appeal must be filed within
15 days of receipt of the appellant's
petition. The date of filing shall be
determined by date of mailing indicated
on the certified mail. If the filing is by
personal delivery it shall be considered
filed on the date it is received in the
field office.
(c) Method of filing. Piling must be
made either by personal delivery during
normal business hours, to the
appropriate Board field office or by
certified mail addressed to that office.
I 120123 Computation of tim.6
To compute the number of days for
filing, the first day counted shall be the
day after the event from which the time
period begins to run and the last'day of
filing shall be included in the
computation.
Example.-If an employee receives a
decision notice which is effective on june L.
the 20 days for filing starts to ru on on June 2.
The filing must be made by June 21. If June 21
is a Saturday, the last day for filing would be
Monday, June 23.
f 1201.24 Content of petition for appeal,
right to hearing.
(a) Contents. Petitions for appeal must
be filed by the employee, his/her
designated representative or a party
property substituted under 1 1201.35.
Petitions may use any format, including
letter form, but must contain the
following:
(1) The name of the appellant and the
acting agency;
(2) The action taken by the agency
and its effective date;
(3) A request for hearing if desired;
(4) A statement of the reasons why
the appellant believes the agency action
to be wrong;
(5) A statement of the action the
appellant would like the presiding
officer to order;
(6) The name of the appellant's
representative, if any,


(7) Attachment of any relevant
documents including the decision notice;
(8) A statement as to whether the
appellant or anyone acting on his/her
behalf has filed a grievance or complaint
with any agency regarding this matter:
and
(9) Signature by the appellant and
representative, if any. Failure to raise a
claim or defense in the petition shall not
bar its submission later unless to do so
would prejudice the rights of the other
parties and unduly delay the
proceedings.
(b) Use of the form. Completion of the
form in Appendix I shall constitute
compliance with subsection (a) of this
section and I 1201.31 if a representative
is designated in the form.
(c] Right to hearing. Under 5 U.S.C.
7701, an appellant has a right to a
hearing. Alternatively, the appellant
may choose to have the determination
based on the record.
S1201.25 Content of agency response,
request for hearing.
Ia) Content Agency response to
petitions for appeal shall contain the
following:
(1) The name of the appellant and the
acting agency;
(2) A statement of the agency action
taken against the appellant and the
reasons therefore,
(3) A specific response to each
allegation of the appellant's petition
admitting, denying or explaining each in
whole or in part;
(4) All documents contained in the
agency record of the proceeding;
(5) Request for hearing and the
reasons therefore, and
(6) Designation of and signature by
the authorized agency representative.
(b) Request for hearing. The agency
may request a hearing on the appeal
which may be granted at the discretion
of the presiding official.
91201.26 Number of pleadings, provision
for service.
(a) Number. One original and three
copies of all pleadings and attachments
must be filed with the field office.
(b) Service. The Board will forward
("serve") copies of all pleadings and
attachments to the parties by certified
mail, return receipt requested.
I 1201.27 Class actions.
(a) Petition. One or more employees
may file an appeal as representatives of
a class of employees. The presiding
official shall hear the case as a class
action if he/she finds a class action will
be the most efficient and fair way to
adjudicate the appeal and will


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38352 Federal Register / Vol. 44, No. 127 / Friday, June 29. 99 ?RaUe and Regulati.ns


adequately protect the interests of all
parties.
(b) Procedure. The presiding official
shall determine within 30 days whether
to hear the appeal as a class action and
will consider any opposition thereto.
(c) Standards. For the purpose of
determining whether it is appropriate to
treat an appeal as a class action, the
presiding official will be guided but not
controlled by the applicable provisions
of the Federal Rules of Civil Procedure.
Partes, Practitioners and Witnesses
5 1201M.1 RepresentatIon.
(a) All parties to an appeal may be
represented in any matter relating to the
appeal. The parties shall designate their
representatives, if any, in the petition for
appeal or responsive pleading. Any
subsequent changes in representation
shall also be in writing and submitted to
the presiding official.
(b) A party may choose any
representative so long as the person is
willing and available to serve. However,
the other party or parties may challenge
the representative on the grounds of
conflict of interest or conflict of position.
This challenge must be made by motion
to the presiding official within 10 days
after receipt of the notice of designation,
and shall be ruled upon prior to
consideration of the case on the merits.
These procedures apply equally to
original and subsequent designations of
representatives. In the event the
selected representative is disqualified,
the party affected shall be given a
reasonable time to obtain another
representative.
(c) The presiding official, on his/her
own motion, may disqualify a party's
representative on the grounds described
in subsection (b) above.
1201.32 Witnesses; right to
representation.
Witnesses shall have the right to
representation when testifying.
1201.33 Federal witnesses.
Every Federal agency shall make its
employees available to furnish sworn
statements or to appear as witnesses at
the hearing when requested by the
presiding official. When providing such
statements or testimony, witnesses shall
be in official duty status.
1 1201.34 Intervenors.
(a) Explanation. Intervenors are
persons who want to participate in a
proceeding because they feel what takes
place at the proceeding, or its outcome,
may affect their rights or duties.
Intervenors as a "matter of right" are
those parties who have a statutory right


to participate. "Permissive" intervene
are those parties who may be permitted
to participate if the proceeding will
affect them directly and is otherwise
appropriate under law. A request to
intervene may be made by motion to the
presiding official under 11201.55.
(b) Intervenors as a matter of right (1)
The Director of OPM may intervene as a
matter of right under 5 U.S.C. 7701(d)(1).
Such intervention shall be made at the
earliest practicable time.
(2) The Special Counsel may intervene
as a matter of right under 5 U.S.C.
1206(i). Such intervention shall be made
at the earliest practicable time.
(c) Permissive intervenors. (1) Any
person may, by motion, request the
presiding official for permission to
intervene. The motion shall state the
reasons why the person should be
permitted to intervene.
[2) A motion for permission to
intervene will be granted where the
requestor will be affected directly by the
outcome of the proceeding, including
any person alleged to have committed a
prohibited personnel practice under 5
U.S.C. 2302(b). Denial of a motion for
permissive intervention may be
appealed to the Board under I 1201.91.
(d) Role of intervenors. Intervenors
will be considered full parties to the
hearing and will have the same rights
and duties as a party with two
exceptions:
(1) Intervenors will not have an
independent right to a bearing; and
(2) Permissive intervenors may
participate only on the issues affecting
them, as determined by the presiding
official.
S1201.35 Substitution.
(a) If an appellant dies or is otherwise
unable to pursue the appeal, the action
shall be completed upon substitution of
proper parties or by the representative
of the original party. Substitution will
not be permitted where the interests of
the original party have terminated
because of the death or other disability.
(b) A motion for substitution shall be
filed by the representative or proper
party within 90 days after the death of
the appellant or other disabling event.
11201.36 Consoldation or Joinder.
(a) Explanation. (1) Consolidation
may occur where two or more parties
have cases united because they contain
identical or similar issues. For example,
individual appeals under a single
reduction-in-force action might be
consolidated.
(2) Joinder may occur where one
person has two or more appeals pending
and they are united for consideration.


For example, a single Bapaklt III
one appeal pending hal.e a
suspension andanother s
challenging a subsequent i .minse i
might have the cases joined.
(b) Action by pvreMig qffici. A
presiding official may consolidate or
join cases on his/her own imoli. o
the motion of a party if to dae o jla
(1) Expedite processing of th
and
(2) Not adversely affect the ine rlll
of the parties.
S1201.117 Fees.
(a] Attorney fees. Except as
in subsection [a)(1) of this aseedi
presiding official may require pSii
by the agency of reasonable
fees if the appellant is the preva
party and payment is warramteadl
interests of justice. This shall &
but not be limited to any case-in i
prohibited personnel practice war -as'
engaged in by the agency or aspen mi .,
which the agency's action was dsG n9d i
without merit. ..
(1) If an appellant is the prevailingM .
party and the decision is based on
finding of discrimination pronhibildl]'r
under 5 U.S.C. 2302(b)(1J. thep .i.i ,
attorney fees shallbein aocrdlaiuuB
with the standards prescribed une
section 706(k) of the Civil Rights A IA,
1964 [42 U.SC. 2000e-5()).J
(2) Requests for payment of a
fees shall be made by motion wt iiiiiiiiii
days of final date of a decision ung 'iii
I 1201.113 in favor of the appella@ fi:0
agency may file a responsive pledii:
within t10 days of receipt of the .moai!' ,I
The ruling of the presiding official ..
such motions shall be made an .|
addendum to the final decision. A
petition for review by the Board of ihi. :k
issue alone shall be submitted within;. a,
days of the receipt of the presiding
official's determination if the case is bnt
reviewed or reopened.
(b) Witness fees. (1] Federal
employees: Employees of a Federal
agency testifying in any proceeding ,
before the Board of making a statement: ::iJ
for the record shall be in official duty
status and shall not receive witness
fees. Payment of travel and per diem
expenses shall be governed by
applicable law and regulations.
(2) Other witnesses. Witnesses who
are not covered by subsection (bXl) 11 I
this section are entitled to the same
witness fees as those paid subpenaed
witnesses under 28 U.S.C. 1821.
(3) Payment of witness fees. Witnes
fees shall be paid by the party
requesting the presence of the witness
and shall be tendered to the witness at
the time the subpoena is served, or, when






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12 ofedeal Regster I Voa 44. No. 127 / Friday. June 29. 1979


I Rules and Regulations


the witness appears walaufriy, at the
time of appearance.
Presiding Officiae
9 120141 Presiding official.
(a) Exercise of authority. Presiding
officials may exercise authority as
provided in paragraph (b) of this section
upon their own motion or upon the
motion of a party, as appropriate.
(b)Authority. Presiding officials shall
conduct fair and impartial hearings and
take all necessary action to avoid delay
in the disposition of all proceedings.
They shall have all powers necessary to
that end unless otherwise limited by
law, including but not limited to, the
authority toc
(1) Administer oaths and affirmations;
[2) Issne subpoenas in accordance with
S12DI.81;
(3) Rule upon offers of proof and
receive relevant evidence:
(4) Rule upon the institution of
discovery procedures as appropriate
under I 12017;
(5) Convene a hearing as appropriate,
regulatethe course of the hearing,
maintain decorum and exclude from the
hearing any disruptive persons;
(B) Exclude from the hearing any
witness whose later testimony might be
colored by testimony of other witnesses
oriany persons whose presence might
have a chilling effect on testifying
witness;
(7) Rule on all motions, witness and
exhibit lists and proposed findings;
([8]) Require the filing of memoranda of
law and the presentation of oral
argument with respect to any question
of law:
(9) Order the production of evidence
and the appearance of witnesses whose
testimony would be relevant, material
and nonrepetitious;
(10) Impose sanctions as provided
under 1201.43 of this part;
(11) Hold prehearing conferences for
the settlement and simplification of
issues; and
(12) File initial decisions.
* 1201.42 Disqualification of presiding
officials
(a] In the event that a presiding
official considers himself/herself
disqualified, he/she shall withdraw from
the case, stating on the record the
reasons therefore, and shall immediately
notify the Board of the withdrawal.
(b) Any party may file a motion
requesting the presiding official to
withdraw on the basis of personal bias
or other disqualification and specifically
setting forth the reasons for the request.
This motion shall be filed as soon as the


party has reason to believe there is a
basis for disqualification.
(c) The presiding official may rule do
the motion. If the montio is. denied the
party requesting withdrawal may
request certification of the issue to the
Board as an interlocutory appeal under
i 1201.91. Failure of the party to request
certification shall be considered a
waiver of the request for withdrawal.
120143 Sanctions.
The presiding official may impose
sanctions upon the parties as necessary
to serve the ends of justice, including
but not limited to the instances set forth
in paragraphs (a), (b). and (c) of this
section.
(a) Failure to comply with an order.
When a party fails to comply with an
order, including an order for taking a
deposition, the production of evidence
within the party's controlI a request for
admission, and/or production of
witnesses, the presiding official may:
(1) Draw an inference in favor of the
requesting party with regard to the
Information sought;
(2] Prohibit the party failing to comply
with such order from introducing
evidence concerning.. or otherwise
relying upon testimony relating to the
information sought:
(3) Permit the requesting party to
introduce secondary evidence
concerning the information sought; and
[4) Strike any part of the pleadings or
other submissions of the party failing to
comply with such request.
(b) Failure to prosecute or defend. I a
party fails to prosecute or defend an
appeal, the presiding official may
dismiss the action with prejudice or rule
for the appellant
(c) Failure to make timely filing. The
presiding official may refuse to consider
any motion or other action which is not
filed in a timely fashion in compliance
with this subpart
Hearings
i 1201.51 Scheduling the hearing.
The notice of initial hearing shall fix
the date, time and place of hearing. The
hearing shall be scheduled not earlier
than 15 days after the date of the notice
unless the parties agree to an earlier
date. The agency, upon request of the
presiding official, shall provide
appropriate hearing space. Motions for
postponement by either party shall be
made in writing and accompanied by an
affidavit setting forth the reasons for the
request and shall be granted only upon a
showing of good cause-


S1201.52 Public hearings.
Hearings shall be open to the public.
However, the presiding official may
order a hearing or any part thereof
closed, where to do so would be in the
best interests of the appellant, a
witness, the public or other affected
persons. Any order closing the hearing
shall set forth the reasons for the
presiding official's decision. Any
objections thereto shall be made a part
of the record.
11201.53 Transcript.
(a) Preparations. A transcript shall be
prepared for every hearing under the
supervision of the presiding official and
shall be the sole official transcript of the
proceeding. A copy of the transcript
shall be provided to the appellant and
the agency. Intervenors and other
interested parties shall be furnished a
copy at their own cost
(b) Corrections. Corrections to the
official transcript will be permitted upon
motion. Motions for correction must be
submitted within 10 days of the receipt
of the transcript. Corrections of the
official transcript will be permitted only
when errors of substance are involved
and only upon approval of the presiding
official.
S1201.54 Official record.
The transcript of testimony and
exhibits, together with all papers and
motions filed in the proceedings, shall
constitute the exclusive and official
record.
f 1201.55 Motions.
(a) Form. All motions shall be in
writing and shall state the reasons why
the motion is requested. Motions shall
be submitted to the presiding official
and he/she will provide the parties with
copies. However, motions may be made
orally during the course of a hearing.
(b) Objection. If a motion is made. in
writing or orally, all other parties shall
have an opportunity to object to it.
(c) Motions for extension of time.
Motions for extension of time will be
granted only for good cause shown.
1 1201.56 Burden and degree of proof,
affirmative defenses.
(a) Burden and degree of proof (1)
Agency: Under 5 U.S.C. 7701(c)(1) the
agency action must be sustained by the
Board if:
(i) It is brought under 5 U.S.C. 4303
and is supported by substantial
evidence; or
(ii) It is brought under any other
provision of law or regulation and is
supported by a preponderance of the
evidence.


38353

































(2) Preponderance of the evidence:
That degree of relevant evidence which
a reasonable mind, considering the
record as a whole, might accept as
sufficient to support a conclusion that
the matter asserted is more likely to be
true than not true,
(3) Harmful error Error by the agency
in the application of its procedures
which, In the absence or cure of the
error, might have caused the agency to
reach a conclusion different than the
one reached. The burden is upon the
appellant to show that based upon the
record as a whole the error was harmful,
Le.. caused substantial harm or
prejudice to his/her rights.
(d) Moving forward. In cases where
action has been taken against an
employee by the agency, the agency
shall present its case first The appellant
may then present evidence.
S1201.57 Closing the record.
(a) When there is a hearing, the record
shall be closed at the conclusion of the
hearing. However, when the presiding
official allows the parties to submit
argument, briefs or documents
previously identified for introduction
into evidence, the record shall be left
open for such time as the presiding
official grants for that purpose.
(b) If the appellant waives a hearing,
the record shall be closed on the date
set by the presiding official as the final
date for the receipt of submissions of the
parties to the matter.
(c) Once the record is closed, no
additional evidence or argument shall
be accepted into the record except upon


S1201.63 Production of evidence by
order af presiding oficiL
At any stage of a proceeding, the
presiding official may request further
evidence converting an Issue and order
its submission.
5 1201.64 Production of statements.
After an individual has given
evidence in a proceeding. any party may
request a copy of any prior signed
statement made by that individual
which is relevant to the evidence given.
If the party refuses to furnish the
statement, the relevant evidence given.
may be excluded from consideration.
51201.65 Admission of facts end
genuineness of documents.
(a] The presiding official may order
any party to respond to requests for the
admission of the genuineness of any
relevant documents identified within the
request or the truth of any relevant
matters of fact or application of law to
the facts as set forth in the request.
(b) Within the time period prescribed
by the presiding official, the party on
whom the request is served must submit
to the presiding official:
(1) A sworn statement specifically
denying. admitting or expressing a lack
of knowledge regarding the specific
matters on which an admission is
requested: and/or
(2) An objection to the request in
whole or in a part on the ground that the
matters contained therein are privileged,
irrelevant or otherwise improper.


uounumEUUn U a 0 U mWUUU puU Imo ,
record. AccoRdingly, the
the presiding mofcla must be
exercised in determining the
for discovery.
S1201.72 Expraattn iMpsL.'V
(a) rplanation. Discovery Is
process whereby a party mBay4 w.i
information from another par
including documents and uitniu.m-'a'
which have not otherwise been
provided. Them materials are Wuil i
for the purpose of asisting the
requesting par in planning Wand ,' I
developing his er iiase.
(b) Scope. Any person may be
examined regarding any noopeiile
matter, which is relevant to the isie;;
under appeal, including thee ldstehi|,'-. fr i
description. nature, custody. coniiti
and location of documents or othei0 "
tangible things and the identity and
location of persons havingluowledge
relevant facts.
S1201.73 Ordsmtor doseoew .
(a) Motion for discovery. Motians ihr
orders granting permission to maka ,
discovery and take depositions or to
respond to written Interrogatories wDdii
5 U.S.C. 1205[b)(2)(B) shall be subumitted "
to the presiding official.
(b) Ruling. Where the preiding
official does not have the auitority to
issue the requested order, the motion
shall be referred with a recommendations -
for decision to an appropriate olffal.
This official shall be either an .1
administrative law fudge or a Membaerf
the Board, who shall promptly rule Oi .
the request Where the presiding official





Attachment I to FPM Ltr.772- 9
14 "o aeral Register / Vol. 44, No. 127 / Friday, june 29, 197 /


Rules and Regulations


has the authority he/she shall rule
directly on the request. Any order issued
shall include, where appropriate:
(1) Provision for notice to the party to
he orally deposed as to the time and
place of such deposition;
S [(2] Placement of whatever limitations
on the conduct of the proceedings or the
r subject matter are necessary to protect
any party or deponent from undue
expense, embarrassment or oppression;
(3) Placement of limitations upon or
answer to written interrogatories, or
production of evidence; and
(4) Other restrictions upon the
discovery procedures as determined by
the presiding official.
S1201.74 Taking of depositions.
Depositions may be taken before a
presiding official, or a notary public not
interested in the outcome of the
proceeding.
1201.75 Rule governing discovery
procedure
Because discovery in matters before
the Board is Intended to be of a
simplified nature, procedures are not set
forth in great detail but shall be
established by the presiding official as
appropriate under the circumstances.
Further guidance, however, may be
obtained from the Federal Rules of Civil
Procedure. Such rules should be
interpreted as being instructive rather
tban controlling.
Subpenas
S1201i1 Motions for subpoenas.
(a) Motion. A motion for the issuance
of subpenas requiring the attendance
and testimony of witnesses or the
production of documents or other
evidence under 5 U.S.C. 1205(b)(2)(A)
shall be submitted to the presiding
official.
(b) Form. Motions for subpoena shall
be submitted in writing, and shall
specify with particularity the books,
papers, or testimony desired and the
facts expected to be proven thereby. It Is
not necessary to demonstrate that
production of witnesses or documents
will not be made voluntarily in order to
obtain a subpoena.
(c) Rulings. Where the presiding
official does not have the authority to
issue subpenas, the motion shall be
referred with a recommendation for
decision to an appropriate official. Such
official shall be an administrative law
judge or a Member of the Board, who
shall promptly rule on the request.
Where the presiding official has the
authority he/she shall rule directly on
the request.


(d] Showing. All requests for
subpenas shall be supported by a
showing of general relevance,
reasonable scope and materiality of the
evidence sought
112012 Motion to quash.
Any person against whom a subpoena
is directed may file a motion to quash. or
limit the subpoena setting forth the
reasons why the subpoena should not be
complied with or why it should be
limited in scope. This motion shall be
filed with the presiding official and shall
be processed, where appropriate, as set;
forth in I 120.81(c).
I1201.3 Servite.
Service of subpoena may be made by a
United States Marshal or Deputy
Marshal, by Board personnel, or by any
person who is not a party to the
proceeding who is over 18 years of age.
11201.84 Return of aemvice
The service of subpoena by a person
other than a United States Marshal or
Deputy Marshal shall be attested to by
the person making such service. The
attesting affidavit shall state the date,
time and method of maldng service.
S1201.85 Enforcement
In the case of contumacy or failure to
obey a subpoena issued, the Board,
pursuant to 5 U.S.C. 12205(c) may request
enforcement of the subpoena in the
appropriate United Stales district courts.
Application for enforcement of subpoena
shall be made by Counsel designated by
the Chair.
Interlocutory Appeals
S1201.91 Explanilon.
An interlocutory appeal is an appeal
to the Board of a decision made by a
presiding official during the course of a
proceeding. This appeal may be
permitted by the presiding official if he/
she determines that the issue presented
is of such importance to the proceeding
that it requires the Board's immediate
attention. The Board makes a decision
on the issue and the presiding official
acts in accordance with that decision.
51201.92 Crtleds for certification.
Rulings of the presiding official may
not be appealed during the course of the
hearing unless the official certifies the
ruling for review by the Board. The
presiding official shall certify a ruling
for review only if it can be shown that:
(a) The ruling involves an important
question of law or policy about which
there is substantial ground for difference
of opinion; and


(b) An immediate ruling will
materially advance the completion of
the proceeding, or denial of an
immediate ruling will cause undue harm
to a party or the public.
11201.3 Procedure.
(a) Motion far certification. A party
seeking review by interlocutory appeal
must file a motion for certification
within five days of receipt of the
presiding official's determination. The
motion shall include arguments in
support of both the certification and the
determination to be made by the Board.
(b) Certification and review. The
presiding official shall grant or deny a
motion for certification within the five
days following receipt of all pleadings. If
certification is granted, the record shall
be referred to the Board. If certification
is denied the issue may be raised ii a
petition for review.
(c) Stay of hearing. The stay of the
hearing during the time an interlocutory
appeal is pending is at the discretion of
the presiding official. However, this will
not preclude the Board from staying a
hearing during the time an interlocutory
appeal is pending.
E Part Communications
11201.101 Explanation and definttiona
(a) Explanation. Ex part
communications are oral or written
communications between decision-
making personnel of the Board and an
Interested party to a proceeding without
providing the other parties a chance to
participate. Not all ex part
communications are prohibited, but only
those which involve the merits of the
case or those which violate other rules
requiring submissions to be in writing.
Accordingly, interested parties may
make Inquiries about such matters as
the status of a case, when it will be
heard, and the method for transmitting
evidence to the Board. Parties may not
inquire about such matters as what
defense they should use, whether their
evidence Is adequate, or make a
submission orally which is required to
be in writing.
(b) Definitions for purposes of this
section. (1) "Interested party" includes:
(i) Any party or representative ofa
party involved in a proceeding before
the Board; or
(ii) Any other person who might be
affected by the outcome of a proceeding
before the Board.
(2) "Decision-making personnel"
means any presiding official and/or an
employee of the Board who reasonably
can be expected to participate in the
decision-making process of the Board.


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Federal Registem / Vol. 44. No. 127 / Friday. June 29. 199 IftultS id Regulation


Bx patte communications concerning
the merits of any matter before the
Board for adjudication or which
otherwise violate rules requiring written
submissions Is prohibited from the time
the persons involved have knowledge
that the matter may be considered by
the Board until the Board has rendered a
final decision.
S11211.1 Plaeomnt In the record,

(a) Any communication made in
violation of this section shall be made a
part of the record and an opportunity for
rebuttal allowed. If the communication
was oral. a memorandum stating the
substance of the discussion shall be
placed in the record.
(b) The following sanctions shall be
available:
(1) Parties: The presiding official may.
in the Interest of justice, require the
offending party to show cause why his/
her claim, interest or motion should not
be dismissed, denied or otherwise
adversely affected.
(2) Board personnel: Offending Board
personnel will be treated in accordance
with the Board's standards of conduct.
(3) Other persons: The presiding
official may Invoke such sanctions
against offending parties as may be
appropriate under the circumstances.
Final Decisions
S1201.111 initM decision by presiding

(a) The presiding official shall prepare
an initial (or recommended) decision
within 25 days of the closing of the
record. Such initial decision shall be
immediately transmitted to the
Secretary of the Board, to the Director of
OPM and to all parties to the appeal,
including named parties and
intervenora, whether permissive or of
right
(b) Each initial decision shall contain:
(1) Findings of fact and conclusions,
as well as the reasons or bases therefore.
upon all the material issues of fact and
law presented on the record;
(2) An order as to the final disposition
of the case, including appropriate relief
(3) The date upon which the decision
will become effective, which, for
purposes of this section, shall be
deemed to be effective 35 days after
issuance; and
(4) A statement of further right to
appeal, including petition for review and
judicial review.


11201.112 Jwisdlmiln oat preulding
offical.
After filing the initial decision, the
presiding official shall retain jurisdiction
over the case only to the limited extent
necessary to correct the transcript, rnle
on a request by the appellant for
attorney fees and take that action
necessary to ensure compliance with the
final decision.
1 1201.113 Fnamy of decision.
The initial decision of the presiding
official shall become final 35 days after
issuance.
(a) Exceptions. The initial decision
shall not become final if any party files
a petition for review or if the Board
reopens the case on its own motion
within 35 days after issuance of the
decision.
(b) Petition for review denied. If the
Board denies all petitions for review, the
initial decision shall become final five
days after the issuance of the last
denial.
(c) Petition for review granted or case
reopened If the Board grants a petition
for review or reopens a case. the
decision of the Board shall be the final
decision.
(d) Extensions. The Board may extend
the 35 day time limit for filing a petition
for good cause shown.
(e) Exhaustion. Administrative
remedies are considered exhausted
when a decision becomes final in
accordance within this section.
j 1201.114 Flng of petition for review.
(a) Who may file. Any party to the
proceeding, the Director of OPM, and
the Special Counsel may file a petition
for review. The Director may request
review only if he/she is of the opinion
that the decision is erroneous and will
have a substantial impact on any civil
service law, rule, or regulation under the
jurisdiction of the Office (5 U.S.C.
7701(e)(2]).
(b) Time for filing. A petition for
review may be filed within 35 days of
Issuance of the initial decision.
(c) Place for filing. A petition for
review shall be filed with the Secretary
of the Merit Systems Protection Board.
Washington. D.C. 20419.
S1201.115 Contents of peMtlonfor
review.
The petition for review shall set forth
objections to the initial decision,
supported by references to applicable
laws or regulations, and with specific
reference to the record. After providing
an opportunity for response by other
parties, the Board may grant a petition
for review when it is established that:


(a) New and material evidence is
available that. despite due diligence,.
was not available when the record las .
closed. or
(b) Tho decision of the preceding ,
official Is based on an aeoneous
interpretation of statute a regulation.
11201.111 Procedure or v lwer :

(a) In any case reopened or review
the Board shell inform the parties of1
reopening and review and may.
(1) Hear oral arguments ....
(2] Require the filing of briefs;
(a) Remand the proceedings to li li
presiding official to take further
testimony or evidence or make
findings or conclusions; or ,
(4) Take any other action
for final disposition of the case.
(b) The Board may affirm. reni l.
remand, modify or vacate the de .,ii
of the presiding official. in whole irtin
part. Where appropriate. the-BoatfdideNl
issue a final decision and order a dat f:::l4||iii
for compliance.
11201.117 Boad .reapu.g-Wau
reconseerallon f aesii
The Board may reopen and reem iil
a decision of a presiding official.,n W.
own motion at any time.
notwithstanding any other provisions it
this part.
S1201.11 Judical revw.
Any employee or applicant for ,,Ai
employment adversely affected'by a
final order or decision of the Board .a.iq w.:
obtain judicial review under the
provisions of 5 U.SC. 7703.
Subpart C-44Hearing Procedures :I
Original Jurisdiction Cas ,.e
Actions Brought by the Special Cailnet
S1201.121 Scope and compliance with
subpart B.
(a) Scope.
The Board has original jurisdiction
over actions brought by the Special .
Counsel and requests made by the
Special Counsel for stays of certain :il
personnel actions. The following
sections of these regulations govern the
proceedings concerning actions brought
by the Special Counsel
(b) Compliance with Subpart B
Except as otherwise expressly
provided by this subpart, the Special
Counsel shall comply with the
regulations regarding hearing
procedures set forth in subpart B of this
part in all complaints or requests he/she
files with the Board.


,,,,,,,






Attachment I to FPM Ltr.772- 9


16 of ieeral Register / Vol. 44, No. 127 / Friday, June 29, 179 / Rules and Regulations


1 1201.122 FIing and service In Specu
Counsel actions.
(a) Filing. Two copies of all
complaints and requests, together with
numbered and tabbed exhibits or
attachments, must be filed with the
Office of the Secretary, and a copy must
be served on all parties along with a
certificate of service.
(b) Service. Service may be by mail or
by personal delivery. Service by mail is
accomplished by mailing by certified
mail to all parties or their
representatives at the last known
address a copy of the complaint or
request, together with exhibits or
attachments, and a certificate of service.
Personal delivery is accomplished by
delivering the documents described
above to the business office or home of
the person to whom It is addressed and
leaving it with that person, or with a
responsible person at that address.
9 1201.123 Special Counsel complaints.
If the Special Counsel determines that
any of the actions set out below should
be taken, he/she shall file a written
complaint setting forth with particularity
the supporting facts and any alleged
violations of law or regulation.
(a) Action to require an agency to take
corrective action (5 U.S.C. 1206(c)(1)(B)];
(b) Action to correct a pattern of
T prohibited personnel practices not
otherwise appealable to the Board 15
U.S.C. 1206(g)):
(c) Action to discipline an employee (5
U.S.C. 1207]; and
(d) Action to discipline an employee
under the Federal Employees Flexible
and Compressed Work Schedule Act (5
U.S.C. 6101 note).
The Board may order the Special
Counsel and the responding party to file
briefs and/or memoranda in any action
the Special Counsel may bring before
the Board.
f 1201.124 Rights of employees.
When the Special Counsel files a
complaint proposing a disciplinary
action against an employee under 5
U.S.C. 1206(g), the affected employee
shall have the right:
(a) To file an answer, supported by
affidavits and documentary evidence;
(b) To be represented;
[c) To a hearing on the record before
the Board or an administrative law
judges
(d) To a written decision by the Board,
setting forth the reasons for its
conclusion, issued at the earliest
practicable date; and
(e) A copy of any final order imposing
disciplinary actions.


12101.125 Answer.
(a) Filing and default: A party named
in a Special Counsel complaint shall file
an answer with the Secretary of the
Board within 30 days of receipt of the
complaint. In the absence of good cause
shown, a party failing to answer waives
the right to contest the allegations in the
complaint. Unanswered allegations shall
be considered admitted and shall form
the basis of an initial or final decision as
appropriate.
(b) Content- An answer shall contain
a specific denial, admission or
explanation of each fact alleged in the
complaint. If the respondent is without
knowledge of a fact, he/she shall so
state. Statements of fact and appropriate
documentation ray be included to
support each denial or defense.
Allegations unanswered or admitted in
the answer shall be considered true and
may not be denied later.
I 1201.126 Final orders of the Board.
(a) In any action seeking correction of
a prohibited personnel practice, the
Board may order such corrective actions
as it considers appropriate after
providing an opportunity for comment
by the agency and OPM. 5 U.SC.
1206(c)(1)[B)).
[b) In any action seeking correction of
a pattern of prohibited personnel
practices not otherwise appealable to
the Board, the Board may order an
agency or employee to take whatever
measures the Board may determine to
be necessary or appropriate (5 U.S.C.
1206(h)).
(c) In any action to discipline an
employee, including one brought to
enforce 5 U.S.C. 7324, the Board may
order a removal, reduction in grade,
debarment (not to exceed five years),
suspension, reprimand. or an
assessment of civil penalty not to
exceed $1,000 (5 U.S.C. 1207).
(d) In any action seeking the
withholding of Federal funds under 5
U.S.C. 1506(a)[2) in which a State or
local employee has engaged in
prohibited political activities, the Board
may order the Federal agency
administering loans or grants to a State
or local agency that reappoints the
offending employee within a period of 18
months to withhold a sum not to exceed
two years' pay of the offending
employee at the rate he/she was
receiving at the .time of the violation.
(e) In any action to discipline an
employee under the Federal Employees
Flexible and Compressed Work
Schedule Act, a final order of the Board
may impose disciplinary action
consisting of:


(1) Removal from Federal employment
for any period of time the Board may
prescribe;
(2) Suspension; or
(3) Such other discipline as the Board
shall deem appropriate.
S1201.127 Request for stay.
Under 5 U.S.C. 1208. the Special
Counsel may request a Member of the
Board to stay any personnel action if
he/she determines that there are
reasonable grounds to believe that the
action was or is about to be taken as a
result of a prohibited personnel practice.
(a) Content of request. Each request
must be signed by the Special Counsel
or his/her representative, and must set
forth:
(1) The names of the parties;
(2) The agency and officials involved:
(8) The nature of the action to be
stayed;
(4) A concise statement of facts
justifying the charge that the personnel
action was or is to be the result of a
prohibited personnel practice; and
(5) The laws or regulations that were
or will be violated if the stay is not
issued.
(b) Filing and serving of request. The
request for stay shall be filed and served
on all parties in accordance with
S 1201.122.
(c) Action on the request for stay. (1)
Initial stay. Within three calendar days
after the filing of a request, excluding
Saturday, Sundays and legal holidays
any Member of the Board shall grant a
request for a stay of 15 calendar days
under 5 U.S.C. 120B(a)(1), unless the
Member determines that, under the facis
and circumstances, the requested stay
would not be appropriate. Unless denied
within the three-day period, the stay
shall be considered granted.
(2) Extension of initial stay. Upon
request filed by the Special Counsel, any
Member of the Board may extend the
period of any stay ordered under 5
U.S.C. 120B(a) for a period of not more
than 30 days. If the agency involved files
with the Board its written views on the
granting of the extension of a stay under
this provision, the Board, in its
discretion, may consider them.
(8) Indefinite stay. Upon request of the
Special Counsel, the Board may extend
any stay granted under 5 U.S.C. 1208(a)
for whatever time it considers
appropriate, but only after providing to
the Special Counsel and the agency an
opportunity to comment, and after the
Board has concurred in the request of
the Special Counsel Simultaneously
with filing a request for an extension of
stay under 5 U.S.C. 1208(c). the Special
Counsel shall file a brief setting forth the


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facts and any relevant legal authority
that the Board should consider in
reaching its determination. The agency
shall respond in accordance with any
order of the Board.
(d) Additional Information. At any
time, the Board, or a Member of the
Board, where appropriate. may require
the Special Counsel and/or the agency
to appear and present further
information or explanation on a request
for a stay, to file supplemental briefs or
memoranda, or to supply factual
information needed by the Board in
making a determination regarding a
stay.
iI120u.1 Adinanistratve appeal, judicial

No administrative appeal lies from an
order of the Board. An employee subject
to a final order imposing disciplinary
action under 5 U.S.C. 1207 may obtain
judicial review of the order of the Board
in an appropriate United States Court of
Appeals (5 U.S.C. 1207(c)).
5 1201.129 Special Counsel actions heard
by administrative law judge.
(a) Where, at the direction of the
Board, an action brought by the Special
Counsel is heard by an administrative
law judge, the decision shall be a
recommended decision to the Board in
accordance with U.S.C. 557.
(b) The parties may file with the
Office of the Secretary any exceptions
they may have to the recommended
decision of the administrative law judge
within 30 days after receipt of the
decision.
Actions Against Administrative Law
judges
1201.131 Procedures.
When an agency proposes an action
against an administrative law judge, the
hearing shall be governed by the
procedures established under subpart B,
unless these regulations expressly
provide otherwise. However, filing and
service shall be made in accordance
with I 1201.122 of this subpart.
I 1201.132 Presiding official.
(a) The presiding official in all cases
brought under this section shall be the
Board or an administrative law judge
designated by.the Board.
(b) Where the presiding official is an
administrative law judge, the decision
shall be a recommended decision to the
Board under 5 U.S.C. 557.
91201.133 Board jurisdiction.
Under this section, the jurisdiction of
the Board is limited to proposed action
involving:


(a) A removal;
(b) A suspension;
(c) A reduction In grade:
(d) A reduction In pay: and
(e] A furlough of 30 days or less.
91201.134 Flng of maplaint
To initiate an action against an
administrative law judge, an agency
shall file a complaint with the Board
setting forth with particularity the facts
that support the proposed action.
120o1.1as Procedure.
The administrative law judge against
whom the complaint is filed may Ble an
answer to the complairo in compliance
with I 201.125 of this subpart.
91201.136 Showing required.
Proposed agency actions under this
section shall be sustained only for good
cause shown.
Removal From the Senior Executive
Service
S1201.141 Right to hearing.
In the case of a proposed action to
remove a career appointee from the
Senior Executive Service to another civil
service position the appointee, upon
request, shall be granted an informal
hearing before an official appointed by
the Board at least 15 days before the
effective date of the removal.
9 1201.142 Hearing procedures; referral of
transcriptL
The appointee and/or his/her
representative may appear and present
arguments in an informal hearing before
the Board or its designee and a
transcript shall be made of the
proceeding. The appointee shall not be
entitled to any other procedural rights.
However, the Board will refer a copy of
the record to the Special Counsel, the
Board's Office of Merit Studies, the
Office of Personnel Management and
the employing agency for whatever
action may be appropriate.
I 1201.143 Right to appeal.
There is no right to appeal under 5
U.S.C. 7703. The removal action shall
not be delayed as a result of the hearing.
Subpart D-Procedures for Cases
Involving Allegations of Discrimination
I 1201.151 Scope and policy.
(a) Scope. (1) The rules in this subpart
implement 5 U.S.C. 7702, and apply in
any case where an employee or
applicant for employment alleges that a
personnel action appealable to the--
Board was taken, in whole or In part, on
the basis of prohibited discrimination.


(2) "Ptohiblted diisBaafteB sa
used in this subpart meam
discrimination prohibited by
(1) Section n717 of he Cvil Rights Act
of 1964. as amended (42 U.SA 2loO.- i
16[a):
(iI) Section G(d) of e, PFaIr abor

U.S.C. 206(d)):
(111) Section W of the Rehsablamilas
Act of 173, as handed (2a UlAC f.7.ll
(iv) Sections 12 and lS of the Age
Discrimination hI Employment AEntalpOi."" .... !!
1067. as amended (3 U.S.C. s, laUr
or
(v) Any rule, regulation or pol.ly :li.. 1.
directive prescribed under dwrev W a t
of law described In (0) laru*
above. : :'::: '
(b) Pbicy. It la the policy of ihen
to adjudicate impartially, t raufl .:
and fairly all issues raised undulrti
subpart in the course of an aactin
brought before dhe Board. hI doing Iea
Board will allow appellants an
opportunity to raise allegations of
discrimination during the appeal.
process and to present fully evidence::
support of the charges raised.
1201.152 CuqaHiMItWUiir prcOii oila
under subpart IL
Except as otherwise expressly
provided by this subpart. all actism
involving allegations of prohibited
discrimination shall comply with the
regulations regarding hearing
procedures set forth in subpart B of thi
part.
11201.153 Contsntsotpeuanm.
(a) Contents: A petition for appeal
raising issues of prohibited
discrimination under this subpart shall
comply with the provisions of I 121.24,
of subpart A with the following
exceptions:
(1) The petition shall state that there
was discrimination and provide specific
examples of how the appellant was
discriminated against; and
(2) The petition shall state whether
the appellant has filed a discrimination
complaint or grievance with his/her
agency or any other agency, the date of
filing such complaint or grievance, and i
any action taken.
(b) Use of form: Completion of the
form in Appendix I to these regulations.
Including questions 13(a) and (b). shall
constitute compliance with the
provisions imposed by subsection (a) of
this section.
1201.154 TIme for ling petllson.
Following are the requirements for
filing a petition raising Issues of
prohibited discrimination:


a ggga


I;,


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(a) Where the appellant has filed a
timely formal complaint of
discrimination with the agency:
(1) A petition must be filed within 20
days after receipt of the agency
resolution or final decision on the
discrimination issue; or
(2) When the agency has not resolved
the matter or issued a final decision on
the formal complaint within a 120-day
period, the appellant shall nonetheless
file an appeal to the Board within a year
after the filing of the formal complaint
with the agency.
(b) Where the appellant has filed a
grievance with the agency under its
negotiated grievance procedure, the
employee may request the Board to
review the final decision under 5 U.S.C.
7702 within 20 days after receipt of the
final decision.
(c) Where the appellant has been
subject to an action appealable to the
board, he/she must either file a timely
complaint of discrimination with the
agency or appeal to the Board within 20
days after the effective date of the
agency action being appealed.
1201.155 Allegations of discrimination
not raised in petition.
(a] Timeliness. An appellant may
raise an allegation of discrimination at
any time during the Board's
consideration of the appeal of the
agency's action, if the appellant did not
know of the existence of a basis for the
allegation at the time the petition for
appeal was filed. The issue of
discrimination may be excluded from
consideration only upon a showing by
the agency that to consider the issue
would prejudice the rights of the agency
and unduly delay the proceedings or
that the discrimination issue is not
directly related to the matter being
appealed. If the issue of discrimination
is excluded from consideration in the
appeal, it shall be remanded to the
agency for appropriate consideration
under any applicable law or regulation.
(b) Effect. When an appellant raises
an allegation of prohibited
discrimination which was not previously
raised before the agency, the presiding
official shall use his/her authority under
I 1201.41 of these regulations,
particularly subsection (bj(8) of
S1201.41. to develop the record
sufficiently to make a determination on
the merits of the allegation. In
developing the record in these
circumstances, the time limits that are
imposed on the production of evidence
and filing of memoranda may
reasonably be expected to be much
more constricted than those imposed in
a 5 U.S.C. 7701 appeal in order to meet


the statutory 120-day processing
requirement
(c) Remand. In the event the parties
agree in writing and file for the record a
statement that a remand to the agency is
desirable, the presiding official may
remind the discrimination issue to the
agency for consideration, if the presiding
official determines to do so would be in
the interests of justice. If the issue is
remanded to the agency, the remand
order shall contain a time period within
which the agency action must be
completed, but in no instance shall that
time period exceed 120 days. During this
time the Board will retain jurisdiction
and the adverse action appeal shall be
held in abeyance. Thereafter the actions
shall be merged and processed and a
decision Issued within 120 days.
(d) Agency answer. When an
appellant alleges prohibited
discrimination for the first time during
the course of a proceeding, and the
matter is not remanded to the agency,
the agency shall be given a reasonable
opportunity to refute the allegation
through a responsive pleading,
testimony, production of documents or
as otherwise permitted by the presiding
official
f 1201.156 Time for processing appeals
Involving allegations of discrimination.
(a) Issue raised in petition. When an
appellant alleges prohibited
discrimination in the petition for appeal.
the Board shall decide both the issue of
discrimination and the appealable
action within 120 days of the filing of the
appeal.
(b) Issue not raised in petition. When
an appellant has not alleged prohibited
discrimination in the petition for appeal,
but has raised the issue subsequently in
the proceeding, the Board shall decide
both the issue of discrimination and the
appealable action within 120 days after
the issue is raised.
(c) Discrimination issue remanded to
agency. When an issue of discrimination
is remanded to the agency, processing
shall be completed within 120 days after
the agency action is completed and the
case returned to the Board.
1 1201.157 Presiding official.
In an appeal from a final decision or
order under 5 U.S.C. 7121 or 7122 issued
by an arbitrator or the Federal Labor
Relations Authority the presiding
official shall be an administrative law
judge, the Board. or a Member of the
Board.


1201.15 Final dedslon, notice of
judicial review.
Any final decision of the Board under
5 U.S.C. 7702 shall notify the appellant
of his/her right to petition the Equal
Employment Opportunity Commission
("the Commission") to consider the
Board's decision, or to file a civil action
in an appropriate United States district
court within 30 days of the receipt of the
Board's final decision.
Review of Board Decision
11201.161 Action by the Commission,
finality and judicial review.
(a) Time limit for determination. In
cases where an appellant petitions the
Commission for consideration of the
Board's decision under 5 U.S.C.
7702(b)(2), the Commission shall
determine, within 30 days afte the date
of petition, whether to consider the
Board's decision.
(b) Judicial review. The Board's
decision shall become judicially
reviewable as of:
(1) The date of issuance of the
decision if the appellant does not file a
petition with the EEOC under 5 U.S.C.
7702(b)(1]: or
(2) The date of the Commission's
determination not to consider the
petition filed under 5 U.S.C. 7702(b)(2).
(c) Commission processing and time
limits. Where the Commission
determines to consider the decision of
the Board, within 60 days after making
such determination, it shall complete its
consideration and either-
(1) Concur in the decision of the
Board: or
(2) Issue in writing and forward to the
Board for its action under I 1201.162 of
this subpart another decision which
differs from the decision of the Board to
the extent that the Commission finds
that, as a matter of law-
(i) The decision of the Board
constitutes an incorrect interpretation of
any provision of any law, rule,
regulation, or policy directive relating to
prohibited discrimination; or
(ii) The decision involving such
provision is not supported by the
evidence in the record as a whole.
(d) Transmittal of record. The Board
shall transmit a copy of its record to the
Commission upon request.
(e) Development of additional
evidence. When requested by the
Commission, the Board shall develop
additional evidence necessary to
supplement the record within a period
sufficient to permit the Commission to
make its decision within the statutory
60-day time limit referred to in (c)
above. In such event the Board may be


38359


1













































snail e a juwically review
Special Panel


action.


1201.171 Referral of case to special
paneL
If the Board reaffirms its decision
under 1201.162(a)(2) with or without
modification, the matter shall be
immediately certified to the Special
Panel established pursuant to 5 U.S.C.
7702(d). Upon certification, the Board
shall. within five days (excluding
Saturday. Sunday, and Federal
holidays), transmit to the Special Panel
the administrative record in the
proceeding, including-
[a) The factual record compiled under
this section;
(b) The decisions issued by the Board
and the Commission under ihis section:
and
[c] Any transcript of oral arguments
made, or legal brief filed before the
Board and/or the Commission.
1201.172 Action by special panel.
(a) Role of the Panel The Special
Panel. if convened shall review the
administrative record under procedures


(a) Appellate jurisdiction. Any party
may petition the Board for enforcement
of a final decision issued under the
Board's appellate jurisdiction.
Submission of this petition shall be
made to the field office which rendered
the initial decision. The petition shall
specifically set forth the reasons why
the petitioning party believes there is
noncompliance.
(b) Originaljurisdiction. Any party
seeking enforcement of a Board order
issued under its original jurisdiction
shall submit a petition for enforcement
to the Office of the Secretary. The
petition shall specifically set forth the
reasons why the petitioning party
believes there is noncompliance.
Processing of the petition will be made
under the procedures set forth in
1 1201.184 of this subpart.
11201.182 Compliance.
The Chief Appeals Officer shall take
all necessary action to ascertain
whether the final decision of the Board
is being complied with and shall issue
an opinion on the matter. If the Chief
Appeals Officer finds noncompliance.


suupart r-saving Provisions I
S1201.191 Saving prov.is.o..
(a) Scope. All executive orders. rtles
and regulations relating to the Fedeu
service that were in effect prior to. thiu '; II
effective date of the Act shall conftoiut
in effect and be applied by the Board ii
its adjudications until modified.
terminated, superseded, or repealed by ..
the President. Office of Personnel
Management, the Merit Systems
Protection Board, the Equal Employment iI
Opportunity Commission. or the Feder4
Labor Relations Authority, as
appropriate.
(b] Administrative proceedings and
appeals therefrom. No provision of the:
Civil Service Reform Act-shall be
applied by the Board in such a way ai to
affect any administrative proceeding-
pending at the effective date of such
provision. "Pending" is considered to
encompass existing agency proceedings.
and appeals before the Board or its
predecessor agencies, that were subject
to judicial review or under judicial
review on January 11,1979, the date on
which the Act became effective. An





Attachment I to FPMLtr .772- 9
20 of 21
Federal Register / Vol. 44, No. 127 / Friday. June 2, 1979 / Rules and Regulations


agency proceeding is considered to exist
once the employee has received notice
of the proposed action.
(c) Explanation. Mr. X'was advised of
agency Y's Intention to remove him for
abandonment of position, effective
December 2.& 1978. Twenty days later
Mr. X appealed the agency action to the
Merit Systems Protection Board. The
Merit Systems Protection Board
docketed Mr. X's appeal as an "old
system case". i.e., one to which the
savings clause applied. The appropriate
field office processed the case, applying
the substantive laws, rules and
regulations in existence prior to the
enactment of Act The decision, dated
February 28. 1979. informed Mr. X that
he is entitled to judicial review if he files
a timely notice of appeal in the
appropriate United States district court
or the United States Court of Claims
under the statute of limitations
applicable when the adverse action was
taken.
Part S120-Appendix I-Merit Systems
Protection Board Appeals Form
The purpose of this form is to help you
provide valuable information to the Merit
Systems Protection Board ("the Board") when
you file an appeal. You are not required to
use this form, and you are not limited to
answering the questions on the form If you
feel there is other information you wish to
provide. However, If you do not use the form.
your appeal documents must comply with the
Board's regulations. Your agency's personnel
office can assist you in obtaining these
regulations, and the Board advises you to
review them.
Al appellants who elect to use this form
should complete Parts I-III. Only those who
are appealing Reduction-in-Force (RIFI
actions are required to complete Part IV.
Privacy Act Statement: This form requests
personal information which Is relevant and
necessary to reach a decision in your appeal.
The Merit Systems Protection Board collects
this information in order to process appeals
under its statutory and regulatory authority.
Since your appeal is a voluntary action you
are not required to provide any personal
Information in connection with it. However.
failure to supply the Merit Systems Protection
Board with all the information essential to
reach a decision in your case could result in
the rejection of your appeal.
The decision of the Merit Systems
Protection Board on appeal are final
administrative decisions and, as such, are
available to the public under the provisions
of the Freedom of Information Act. Some
Information about your appeal will also be
used In depersonalized form as a data base
for program statistics. If there is a need to
disclose information from your appeal file for
reasons other than these, or those cited in the
Privacy Act (5 U.S.C. 552a) or as required by
the Freedom of Information Act (5 U.S.C.
162), your prior written consent will be
obtained.


PantI: GmEwau
1. Your Name
ast, Prst and Middle
2. Your Social Security Number --- -
& Your Present Address:
Street No.:
City:
State and Zip Code:
4. Home Phone (including area code]:--
5. Office Phone (including area code): -
Part I. Action Taken
S. Brlelly describe the agency action you wish
to appeal and attach any relevant documents.


a IAgency takin action: -
Bureau (Division) within Agency: -
e) Location of Agency:
Street City, State. Zip Code) ----
d) Your position title:
e) Your grade and salary:
() Are you a veteran? Yes No---
(g) Type of appointment you have:
i) Temporary --- Permanent -
Applicant for Employment
Term
(ii) Are you in the competitive or excepted
service?
(h) Length of Government service:
|i) Length of service with agency taking
action:
() If annuitant. date of retirement:
(k) Were you serving a probationary or trail
period when the agency took the action being
appealed? Yes No
7. What action would you like the Board to
take on this case?
S. What was the dath (month, date,. year) you
received the written proposed notice to take
this action? (attach copy) ----
9. What was the date (month, date. year) you
received the final notice of the decision to
take this action? (attach copy) ----
10. What was the effective date (month, date.
year) of this action? ----
11. Why do you think the agency was wrong
in taking this action? Explain briefly. -

12.iHave you, or anyone on your behalf, filed
an appeal, a grievance, a complaint, including
an unfair labor practice charge, with your
agency or any other agency concerning this
matter? Yes No -
If yes, when (date)
Where [location and with whom (agency)) -
Has a decision been issued? Yes -
No
If so. when (date)
By whom--- Title
(Attach a copy)
13. (a) if you believe you were discriminated
against by the agency because of either your
race. color, religion, sex, national origin.
marital status, political affiliation, handicap-
ping condition, or age, indicate so and ex-
plain why you believe It to be true. You must

*In filling out this form, wherever the space
provided is Insufficient you may add dditiomal
pages. If youdo so, please put your name and Social
Security number at the top of the page, and indicate
by number which question you are answering.


Indicate, by examples, how you were dia-
criminated against


[b] Have you filed a discrimination complaint
with your agency or any other agency? Yes
- No -
Date Filed
Place of Filing
Has there been a decision? Yes No
If yes, attach a copy)
Part .ll: Heai
14. You have a right to a hearing on this
appeal.If you do not want a hearing, the
Board will make its decision on the basis of
the documents you and the agency submit.
Do you want a hearing?
Yes No-
If you choose to have a hearing, the Board
will notify you when and where it is to be
held.
15. You have the right to designate someone
to represent you on this appeal if he/she
agrees to do so. This person does not have to
be an attorney. The agency has a right to
challenge your choice of a representative if
there is a conflict of interest or position. You
may change your designation of a
representative at a later date, if you so desire,
but must notify the Board promptly of any
change.
"I hereby designate to
serve as my representative during the course
of this appeal, I understand that my
representative Is authorized to act on my
behalf."
Your signasr'
Date:
Signature of representative:
Date:
Address:
Employer:
16. You may be permitted to call witnesses at
a hearing upon the approval of the presiding
official. If you Intend to do so. provide their
names and a brief statement of their
relationship to the case. You will be
permitted to request other witnesses later if
you do not list them now.
a Name:
Relationship to case:-
(bh Name:
Relationship to case:
(c) Name:
Relationship to case ----
You or your representative are required to
file four (4) copies of this form, together with
Its attachments, with the Board's field office
identified in the decision notice provided by
the agency. You must do likewise each time
you file something with the Board.
Part IV- ReducUion-in-Force (R&IF
Fil out thli section only if you are appealing
from a reduction-in-force (RIF). Your
agency's personnel office can furnish you
most of the Information requested below.
17. Tenure Sub-Group:
18. Service Computation Date:
19. Has your agency offered you another
position rather than separate you?
Yes- No-
If your answer Is "Yea", please give the
following Information:
(a) Title of position offered you:


38361


__ _
















































(Illinois, Indiana, Michigan, Minnesota. Ohio.
Wisconsin).
4. DALLAS FIELD OFFICE: 1100 Commerce
Street, Dallas, Texas 75242 (Arkansas.
Louisiana, New Mexico. Oklahoma. Texas.
Swan Island).
5. DENVER FIELD OFFICE: Building 48
Denver Federal Center, Boi 25025. Denver.
Colorado 80225 (Colorado. Montana, North
Dakota, South Dakota, Utah. Wyoming).
S. NEW YORK FIELD OFFICE: New
Federal Building. 26 Federal Plaza. New York,
New York 10007 (New Jersey. New York,
Puerto Rico, Virgin Islands).
7. PHILADELPHIA FIELD OFFICE: U.S.
Customhouse. Room 501. Second and
Chestnut Streets. Philadelphia. Pennsylvania
19106 (Delaware. Maryland. Pennsylvania,
Virginia, West Virginia).
8. SAINT LOUIS FIELD OFFICE. 1256
Federal Building. 1520 Market Street. Saint
Louis, Missouri 63103 (Iowa. Kansas.
Missouri, Nebraska).
9. SAN FRANCISCO FIELD OFFICE: 525
Market Street, San Francisco. California
94105 (Arizona. California. Hawaii. Nevada.
Pacific Ocean area).
10. SEATTLE FIELD OFFICE: Federal
Building. Room 180, 915 Second Avenue.
Seattle. Washington 98174 (Alaska. Idaho.
Oregon, Washington).
11. WASHINGTON, D.C. FIELD OFFICE:
1717 H Street. NW. Washington. D.C. 20419






Attachment II to FPM Ltr. 772- 9
Page 1 of 1






44820 Federal Register / Vol. 44. No. 148 / Tuesday. July 31, 1979 / Rules and Regulations








5 CFR Part 772

Appeals to the Commission; Cross
Reference
Cross Reference: Fur a document
affecting Part 772 of Chaiplar I. Title 5 of
lihe Code of Federal Regulations. see
---, FR Doc. 79-23736 appearing
under Merit Systems Proteclion Board in
the Rulnas nd Regula lions section of this
issue. Refer to the table of contents at
the front of this issue to find the correct
p;ige number.
BILLING CODE 6325-01-M

5 CFR Parts 1200, 1201, and 1202

Organization and Procedure;
Correction
AGENCY: Merit Systems Protection
Bonrd.
ACTION: Final Rules; Correction.
SUMMARY: This document corrects the
document entitled Organizntion and
Procedure published in the Federal
Register on June 29.1979, in Volume 44
at 30342.
EFFECTIVE DATE: June 30,1979.
FOR FURTHER INFORMATION CONTACT:
Alan Greenwald oi Deborah House,
(202) 653-7101.
CORRECTION: In SUPPLEMENTARY
INFORMATION, immediately aftelor the last
sentence in the first column add:
Also superseded by these regulations
is Part 772 of Title & .

By Order or the Board.
Dated: jliy 25. 1979.
Ruth T. Prokop.
Chairwoman.
tFlR h1r. 7-223M Pilpd 7-35-t I Rs mInl
BILLINw CODE 215-20-M






























OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 151, 300, 302, 315, 330,
351, 352,353, 531, 550,731, 733,754,
and 930

Deletion of Procedural Regulations
AGENCY: Office of Personnel
Management.
ACTION: Final rule.
SUMMARY: This document deletes from
the Office's regulations the procedures
fur investigating and prosecuting Hlleged
improper political activity and
procedures for governing employee
appeals which are obsolete as a result of
the reorganization and issuance of Merit
Systems Protection Board regulations.
EFFECTIVE DATE: August 21, 1979.
FOR FURTHER INFORMATION CONTACT:
Pot Name Telephone
S1.733....... Thoms F Moy .... (202)832-2982
300. 302. 315. Modon I. Honri......... (202) 632-6817
330, 351.
352.353.
13'.
531. 550.......... James N. W odruf.... (202) 6324-6553
1S4 ................. Wilma Lehman.. ...., (202) 632-5623
930 ............ Joseph A. Non. ...... (202) 632-4830

SUPPLEMENTARY INFORMATION:
Reorganization Plan No. 2 of 1978 (43 FR
3t067) abolished the Civil Service
Commission and transferred ils
functions to Ihe Office of Personnel
Management and the Merit Systems
Protection Board.
Among those functions transferred
from the Commission to the Board are:
(1) the authority to investigate and
prosecute alleged improper political
activity: (2) the authority 1s decide
employee appeals: and [3] the authority
to issue regulations on these mattilers.
Interim regulations were published by
the Board on January 19, 1979 (44 FR
3946). Final regulations governing
appeals were published on June 29, 1979
(44 FR 38342 at seq.).


Beverly M. Jones,
Issuance System Manager.
PART 151-POLITICAL ACTIViTY OF
STATE OR LOCAL OFFICERS OR
EMPLOYEES
Accordingly, 5 CFR chapter 1 Is
amended as follows:
tl 151.131-151.138 [Deleted)
(1) In Part 151, I 151.131.151.132..
151.133, 151.134, 151.135, 151.136.151.137
and 1517138 are deleted.
PART 300- EMPLOYMENT (GENERAL)
(2) In 300.104, pragrtanphs (a)(2) and
(3) are deleted, and S 300.104(a)(1).
104(b] and 104(c)(2) are revised to read
as follows:
300.104 Appeals, grievances and -
complaints.
(a) Employment pmrtices. A
candidate who believes that an
employment practice which was applied
to him or her by the Office of Personnel
Management violates a-basic
requirement in section 300.103 is entitled
to appeal to the Merit Systems
Protection Board under the provisions of
its regulations.
(b) Examination ratings. A candidate
may file an appeal with the Office from
his examination rating or the rejection of
his application, except that, where the
Office has delegated examining
authority to an agency, the candidate
should appeal directly to that agency.
The appeal shall be filed and processed
in accordance with instructionsino
chapter 337 of the Federal Personnel
Manual.
(c) *
(2) Except as provided in paragraph
(c)(1l) of this section, an employee may
file a grievance with an agency when he
or she believes thl I an employment
practice which wL.i applied to him or
her and which is administered or
required by the agai.icy violates a basic
requirement in I 3i0.103. The grievance


uy ueieung ggs auZ.ob ana aum.wau q,.
revising 1 302.501 to read as foll'dsti
302.501 Entitlement.
An individual who is covered .t & '...1l
U.S.C. 8101[1) and is entitled to pDlsilW
consideration under this Part (see
302.103) may appeal a violation ofi
her realoration rights to the MWrii
Systems Protection Board under the '.
provisions of the Board's regulatelnls g
presenting factual Information lhat 1w
she wais denied restoration: rights
because of the employment of anothcir' .
person.
* S *

PART 315-CAREER AND CAREEU-
CONDITIONAL EMPLOYMENT **

(41 Subpart H of the table of conteni1
at the beginning of Part 315 is ametndedi
to read as follows:

Subpart H-Probation onlnitlul
Appointment to a Competitive Positilo
Sec.
315.801 Probationary period: when required. "'
315.802 Length of probationary period.
315.803 Agency action during probationary
period (general).
31.1104 Turminaiion iifprobutioners 6*
unsulisfactury performsnoe or conducL
315.805 Termination of probationers for
conditions arising before appointment.
315.806 Appeal rights to the Merit Systems
Protection Board.
S315.807 (Deleted]
(5) Subpart IH ofPart 315 is amended
by deleting 11 315.807, 315.Ob[h)(1) and
315.800(e); and by revising
15 315.806(bj(2) and 315.805od) to read
as follows:
5 315.806 Appeal rights the Merit
Systems Protection Board&

(b) On discrimination. An employee
may appeal under this subparagraph a
termination not required by statute
which he or she ulleges was based on











partisan political reasons or marital
status.

(d) An employee may appeal to the
Board under this section a termination
which the employee alleges was based
on discrimination because of race, color.
religion, sex, or national origin; or ago,
: provided that at the time of the alleged
discriminatory action the employee was
at least 40 years of age; or physical
handicap, only if such discrimination is
raised in addition to one of the issues
stated in paragraphs (b) or (c] of this
section.


PART 330-RECRUITMENT,
SELECTION, AND PLACEMENT
(GENERAL)
(6) Subpart B of the table of contents
at the beginning of Part 330 is amended
to read as follows:
Subpart B-Appointment From
Reemployment Priority List
Sec.
830.201 Priority In filling vacancies.
330.202 Reemployment priority list appeals.
330.203and 330.204 ([Deletedl
(7) Subpart B of Part 330 is amended
by deleting I 330.203 and 330.204 and
revising i 330.202 to read as follows:
330.202 Reemployment priority ast
appeals.
An employee or former employee who
thinks his or her reemployment priority
rights under ihis subpart have been
violated is entitled to appeal to the
Meril Systems Protection Board under
the provisions of the Board's regulations
by presenting factual Information that-
he or she was denied restoration rights
because of the employment of another
person.
*

PART 351-REDUCTION IN FORCE
(8) Subpart I of the table of contents at
the beginning of Part 351 is amended to
read as follows:
Subpart I-Appeals and Corrective
Action
Sec.
351.B01 Appeal.
351.902 Correction by agency.
*
(9) Subpart H of Part 351 is amended
by revising 351.802 and 351.807 as
follows:


351.802 Content of notice.
Except as provided in I 351.603, the
notice required by I 351.80M shall state
specifically the action to be taken and
its effective date: the employee's
competitive area, competitive level,
subgroup, and service date: the place
where the employee may inspect the
regulations and records pertinent to this
case; the reasons for retaining a lower-
standing employee in the same
competitive level under 5 351.607; the
reasons for retaining a lower-standing
employee In the same competitive level
for more than 30 days under I 351.608;
and the employee's right to appeal to the
Merit Systems Protection Board under
the provisions of the Board's regulations.
The agency shall comply with the
provisions of section 1201.21 of this title.
S351.807 Status during notice period.
When possible, the agency shall
retain the employee on active duty
during the notice period, but it may
place him/lier on annual leave with or
without his/her consent, on leave
without pay with his/her consent, or in
a nonpay status without his/her consent
when in an emergency the agency lacks
work or funds for all or part of the
notice period.
S 0 I
(9a) Subpart I of Part 351 is amended
by deleting i 351.902 and 351.901(bj
through (d) and is further amended by
revising I 351.901 and redesignating
I 351.903 as 5 351.902 to read as follows:
S351.901 Appeal.
An employee who has been affected
by a reduction in force action arid who
believes this part has not been correctly
applied may appeal to the Merit
Systems Protection Board under the
provisions of the Board's regulations.
k351.902 Correction by agency.
Ihedebignated from 351.9031
a

S8351.103 (Redesignated s 351.902]
PART 352-REEMPLOYMENT RIGHTS
1 9112.313, 352.509.352.607,352.707
AmeMndedl
(10) Part 352 is amended by deleting
II 352.313 (d)-(f), 352.508 (b)-(e), 352.607
(b) and (c), and 352.707 (b) and (c). Part
352 is also amended by revising
1S S32z.9: 352.313 (a], (b) and c]);
352.50bla) (1), (21 and (3); 352.607; and
352.707(a)'(1) (2). and (3) to read as
follows:


S352.209 Employee appeals to the Merit
Systems Protection Board.
When an agency denies
reemployment to a person claiming
reemployment rights under this subpart.
the agency shall inform him or her of
that denial by a written notice. In the
samine notice, the agency shall inform
him/her of his/her right to appeal to the
Merit Systems Protection Board under
the provisions of the Board's regulations.
The apeincy shall comply with the
provisions of 1201.21 of this title.

1 352.313 Failure to reemploy and right of
appeal.
(a) When an agency fails to reemploy
an employee within 30 days of his/her
application, it shall notify him'/her in
writing of the reasons and of his/her
right lo appeal to the Merit Systems
Proleclion BDord under the provisions of
the Board's regulations. The agency
shall comply with the provisions of
i 1201.21 of this title.
(b) If the agency fails to reach and
issue a decision to the employee within
30 days from his/her application for
reemployment. the employee is entitled
to appeal the failure of the agency to the
Merit Systems Protection Board under
the provisions of the Board's regulations.
(c) An appeal alleging that the agency
has failed to comply with any of the
other provisions of sections 3343 and
3581-3584 of title 5. United States Code,
or of this Part may be submitted to the
Merit Systems Protection Board under
the provisions of the Board's regulations.
*. a

I 352.508 Appeals to the Merit Systems
Protection Board.
(a) If an agency determines that an
employee who has applied for
reinstatement is not eligible for
reinslutement, it shall notify the
employee as promptly as possible of its
decision, of the basis therefore, and of the
employee's appeal rights under this
subpart. The employee is entitled to
appeal the decision to the Merit Systems
Protection Board under the provisions of
the Board's regulations. The agency
shall comply with the provisions of
5 1201.21 of this title.
1 (b) If an agency fails rtreinstate an
employee within the time limits
specified in 352,507, the employee is
entitled to appeal to the Merit Systems
Protection Board under the provisions of
the Board's regulations.
(c) If an employee considers that his
reinstatement is not in accordance with
the act and this subpart, he or she is
entitled to appeal to the V t1 Systems



































appeal to the Merit Systems Protection
Board under the provisions of the
Board's regulations. The agency shall
comply with the provisions of 1201.21
of this title.
(b] If an employee considers
reemployment to be not in accordance
with this subpart, the employee is
entitled to appeal to the Merit Systems
Protection Board under the provisions of
the Board's regulations.
(c) Refusal of a tribe to hire a Federal
employee is not appealable to the Merit
Systems Protection Board.
*

PART 353-RESTORATION TO DUTY
(11) Subpart D of the table of contents
at the beginning of Part 353 is amended
to read as follows:
Subpart D-Appeals
Sec.
353.401 Appeals.

S353.402-353A405 [Deleted]
(12) Part 353 is amended by deleting
5I 353.402. 353.403. 353.404. and 353.405.
This Part is also amended by revising
55 353.308 (a) and (b), 353.401(a)(1) (i)-
(iv). and 353.401(b): and redesignating
I 353.401(a)(1)(v) as I 353.401(c) to read
as follows:
* *

4 153303 Notice of right of appeal.
(a) When an agency refuses to restore,
or determines that it is not feasible to
restore an employee under the
provisions of law and this Part, it shall
notify the employee in writing of the


proper notification by the employee of
his/her desire to exercise his/her
restoration rights, the agency concerned
fails to restore the employee within the
time limits specified by law and in this
Part, the employee may appeal to the
Board under the provisions of the
Board's regulations.
(11) Not feasible to restore. If the
agency concerned decides that it is not
feasible to restore an employee, he or
she may appeal this decision to the
Board under the provisions of the
Board's regulations.
(iiill) Refusal of restoration. If the
agency concerned-refuses to restore an
employee, the employee may appeal to
the Board under the provisions of the
Board's regulations.
(iv) Improper restoration. If an
employee considers that he or she has
been improperly restored, the employee
may appeal to the Board under the
provisions of the Board's regulations.
(b) Other employees. An employee of
another branch who Is entitled by law to
appeal to the Merit Systems Protection
Board may do so under the provisions of
the Board's regulations.
(c) Former agency abolished. If the
Executive branch or District of
Columbia agency in which an employee
was employed when he or she left for
military duty or was Injured is abolished
and its functions are not transferred to
another agency. the employee is entitled
to request that the Office find him or her
employment.


Board under the rtVaavuiqris of ',
Board's regulations the decision
or her agency sustaining the
determination. .
* 0
(14) Subpart E of Part 5311
by revising 1 531.517 to rodd *
1 531.81 Appealstothefa it 4
Protection Board.*
(a) General An employee wiA '
reducodin grade orpay, orreas
during his or her salary retentionpi '
may appeal to the Merit Systems .:
Protection Board from a decision oft l
agency that (I) he or she is not t
to salary retention, or (2) will termo ,0l
or adversely affect the salary rateni
he or she is currently receiving. This ill
right of appeal does not in.any way ;
restrict an employee's entitlement to "
appeal to the Board under another pflt "
of this chapter or under statute. '
Ib) Agency notification to emAployei
When an employee is reduced in grade
or pay, or reassigned during a salary ,
retention period, the agency shall idp -It
him or her in writing whether or not I. 1
or she is entitled to salary retention, orw.
whether the salary retention he or abse a
currently receiving will be terminateslet
adversely affected. When an agency -
decides that (1) an employee it not .

'MThe provisions of this section apply only toe(1)
detelminations of entitlement under 5 U.&C, $3M
and i2) agency decisions to terminate or adveirly
affect the retained rate received under 5 U.S.C.M bSS.
5 U.&C. 5337 was repealed by the Civil Service
Reform Act at 1078 (Pub. L 98-454 effect oathe
first day of the first pay period beginnilq an or ar
lanusry 11. iTR For information concerning.
entitlement to pay retention in actions which
occurred after the effective dale of the CSRA, W
Part s30 of this chapter.








as
. 49


469


.ttncimenrc-,u. to YMM Ltr.772- 9
of 6


54


Federal Register / Vol. 44, No. 163 / Tuesday, August 21. 1979 / Rules and Regulations


entitled to salary retention, or (2) the
salary retention an employee is
currently receiving will be terminated,
the agency shell inufrm him or her in
writing of his or her right to appeal to
the Board under the provisions of the
Board's regulations. The agency shall
comply with the provisions of section
S 1201.21 of this title.


PART 550-PAY ADMINISTRATION
(GENERAL)
(15) In part 550. 15 550.803 (c) and (d)
are revised to read as follows:
i550.803 Determining entitlemenL
a a
(c) The requirement for a "timely
appeal" referred to in section 5595 of
title 5, United States Code, is met when
an employee or personal representative
initiates a claim to the Comptroller
General for settlement of his or her
claim against the Government, or an
appeal or grievance under an appeal or
grievance system including appeal
procedures included in a collective
bargaining agreement, and that claim Is
accepted as timely filed by the
Comptroller General, or that appeal or
grievance Is accepted as timely filed by
the Government authority administering
the appeal or grievance system, or is
found to be timely filed by an
appropriate authority, e.g.. an arbitrator,
or a court having jurisdiction.
(d) The "appropriate authority"
referred to in section 5598 of title 5.
United States Code, is (1) a court having
jurisdiction: (2) the Comptroller General;
(3) the Office of Personnel Management;
(4) a grievance board established by
section 692 of the Foreign Service Act of
1946; (5) the head of the employing
agency or an agency official to whom
corrective action authority is delegated;
(6) an arbitrator or the Federal Labor
Relations Authority in decisions under
chapter 71 of title 5, United States Code:
(7) the Merit Systems Protection Board,
including the Special Counsel: or (8) the
Equal Employment Opportunity
Commission.
S a a a a

PART731-SUITABILITY
(16) Subpart D of the table of contents
at the beginning of Part 731 is amended
to read as follows:

Subpart D-Appeal to the Merit
Systems Protection Board
Sec.
731.401 Right to appeal.


1731.401 (Amended).
S731.402 (Deleted)
(17) Part 731 is amended by deleting
i 731.401(c) and 731.402. Part 731 Is
also amended by revising 731.302(d)
and 731.401 to read as follows;
1 731.302 Actions against employees by
the Office.

(d) When the Office instructs an
agency to remove an appointee under
this Part it shall notify the agency and
the appointee of its decision in writing,
giving reasons for the decision, and
informing the agency and the appointee
of the right to appeal to the Merit
Systems Protection Board under the
provisions of the Board's regulations.
The Office shall comply with the
provisions of section 1I01.21 of this title.


S731.401 Right to appeaL
(a) Any applicant or eligible who is
disqualified from examination or
appointment by the Office for any
reason named in I 731.202 may appeal
to the Merit Systems Protection Board
under the Board's regulations.
(b) An appointee who is disqualified
by the Office for any reason named in
1 731.202 or his or her employing agency
may appeal to the Board under the
Board's regulations.
0 0. 0

PART 733-POLITICAL ACTIVITY OF
FEDERAL EMPLOYEES
(18) The table of contents of Part 733
is amended to read as followi:,
Subpart A-The Competitive Service '
General Provisions
Sec.
733.101 Definitions.
Panermisible Activities
733.111 Permissible activities.
Prohibited Activities
733.121 Use of official authority: prohibition.
733.122 Political management and political
campaigning: prohibitions.
733.123 Prohibited activity; exception of
certain employees.
733.124 Political management and political
campaigning: exception of certain
elections.
Subpart B-The Excepted Service
733.201 Jurisdiction.
Subpart C-The U.S. Postal Service
733.301 Juris.ctlion.
* *


1S 733.131-733.137, I1 733.202-733.302 and
733.402 (Deleted)
5 733.401 Redesignated as 0733.3011
(191 Part 733 is amended by deleting
i5 733.131 through 733.137. 733.202
through 733.302. and 733.402: by
redesignating 1 733.401 as 733.301; and
by revising ii 733.124(b) and 733.401 to
read as follows:
9733.124 Political management and
political campaigning; exception of certain
elections.
*
(b) For the purpose of paragraph (a](2)
of this section, the Office may designate
a liunicipality or political subdivision in
Maryland or Virginia in the immediate
vicinity of the District of Columbia or a
municipality In which the majority of
voters are employed by the Government
of the United States, when the Office
determines that, because of special or
unusual circumstances, it is in the
domestic interest of employees to
participate in local elections.
Information as to the documentation
required to support a request for
designation is furnished by the Office on
request. The following municipalities
and political subdivisions have been
designated, effective on the date
specified:


Subpart C-The US. Postal Service
S733.301 Jurisdiction.
Sections 733.101 (c). (d). (e), and (f]
through 733.124 apply lo an employee of
the U.S. Postal Service.


PART 754-ADVERSE ACTIONS BY
THE COMMISSION
(201 Part 754 is amended by revising
I5 754.104 and 754.105 to read as
follows:
5754.104 Decision.
The Associate Director shall notify
the employee and the agency of his or
her decision and inform the employee of
his or her appeal rights. The decision
shall be in writing, be dated, and inform
the employee of the reasons for the
decision. The Office shall comply with
the provisions of i 1201.21 of this title.
S754.105 Appeal rights.
(a) An employee may appeal an
adverse decision of the Associate
Director to the Merit Systems Protection
Board under the provisions of the
Board's regulations.
[b) An employee who appeals under
this section is entitled to be retained in
an active duty status until action on his/


---- -- -- --- -- --
"-











her appeal is completed under Part 1201
of this title.
* *

PART 772-APPEALS TO THE
COMMISSION [DELETED]
(21) Part 772 was deleted in its
entirely by document 44 FR 48249
published on August 7, 1979.
PART 930-PROGRAMS FOR
SPECIFIC POSITIONS AND
EXAMINATIONS (MISCELLANEOUS)
1 9o30.221-93s.234 [Deletedd
(22J Subpart B of Part 930 is amended
by deleting i 930.221,930.222. 930.223,
930.224, 930.225, 930.226, 930.227,930.228.
930.229, 930.230, 930.231, 930.232,930.233.
and 930.234. This subpart is also
amended by revising 1 930.202(f] and
930.214 to read as follows:
1930.202 Definitions.

(f) "Removal" means an Involuntary
change in the status of an administrative
law judge, including discharge,
suspension, reduction in grade,
reduction in pay, and a furlough of 30
days or less from the position of
administrative law judge and demotion.
reassignment, and promotion to a
position other than that of
administrative law judge.
*

S930.214 Separation.
(a) Removal. An agency may remove
an administrative law judge only for
good cause, established and determined
by the Merit Systems Protection Board
on the record and after opportunity for
hearing before the Board as provided in
II 1201.131 through 1201.130 of this title.
(b) Status during removal
proceedings. In exceptional cases when
there are circumstances by reason of
which the retention of an administrative
law judge in his/her position, pending
adjudication of the existence of good
cause for his/her removal, would be
detrimental to the interests of the
Government, the agency shall either
assign the administrative law judge to
duties in which these conditions would
not exist, or place him/her on annual
leave for the period that will be covered
by the annual leave to his/her credit. An
agency may take action under this
paragraph only with the prior approval
of the Board.
* *
I5 U.S.C. 7701 et seq.)
(FR Doc. 79-W Filed 6-20-7Rt :45 m]
aLuem coos urns-at-u


DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 235
lAmdL 21
State Administrative Expense Funds;
Final Rule
AGENCY: Food and Nutrition Service,
USDA.
ACTION: Final rule.
SUMMARY: This regulation is issued to
(1) finalize the rulemaking process
initiated by interim State administrative
expense (SAE) fund regulations
promulgated on August 22, 1978 (43 FR
37170) and (2) Implement in final
regulatory form certain nondiscretionary
provisions of Pub. L. 95-27 which was
enacted on November 10, 1978. The
Department intends that this rulemaking
serve as the authority for and the
guidelines under which SAE funds will
be distributed and utilized.
DATES: Effective upon signature.
FOR FURTHER INFORMATION, CONTACT!
Margaret O'K. Glavin. Director, School
Programs Division. USDA. FNS.
Washington. D.C. 20250. (2021447-8130.
SUPPLEMENTARY INFORMATION: Pub. L
95-168, enacted November 10, 1977,
brought about a number of changes in
the structure of the SAE funding
process. They Included a change in the
allocation formula, the availability of
start-up assistance for State agencies
assuming program administration, a
carryover provision covering funds
allocated in fiscal year 1978,
authorization for the use of SAE funds In
the administration of the Food
Distribution Program, a State-level
maintenance of effort requirement and
mandatory annual submission by Stale
agencies of a plan for the use of SAE
funds.
All of the preceding provisions were
incorporated into the above-referenced
interim rulemaking. They were issued on
an interim basis because it was
determined that they were-
nondiscretionary In nature and that the
child nutrition programs would be best
served if they were in effect prior to the
1978-79 school year. However, a public
comment period, extending through
October 6. 1978. was provided for.
Public Comments
A total of five (5) comments on the
Interim regulations were received, all
from State Depnrtments of Education.
The following d* scribes the substance of
the comments and the FNS reaction to
them.


Use of "DiscVtionry"rFmdw-aTwq
commenters suggested that the
establishment of a basic SAE payment
to each State of one-percent of the fu1s1ll6 !
expended during the second preios,::,
year was inconsistent with the tinnt
Pub. L 95-166 (i.e., that payments up tl'
one and one-half percent could andt
should be provided for). PNS believpg
that the one-percent payment was
Intended to be the minimum State
entitlement (except where a State .Ij
earn leas than $75.000 or the amill III
earned in fiscal year 1977) and that
has a discretionary authority toarOYli'i
additional funding to States wthin. K
appropriated amounts based -on. iH&';
needs of State agencies. This
reinforced by the fact that the .. ;4a iL; f.i
Appropriations Act for fiscal yep !:i W 2
the firsI year under this formula .
provided for an amount equal to tip.r A6
percent (21 million), with an ad
amount ($4 million) for deallngwb .
State-level problems in the
administration of child nutrition:
programs.
With regard to these discratias6lo"g,.
funds, the preamble to the interim
regulations states, in part, that "ibe
Department has determined that fdll f I'
issue (i.e.. the use of the funds above
one percent level) would be i
appropriately addressed in a propoli.
format (regulation) in order that the
public's comments may be take into" ':
consideration In the interval,
Increasing concern has been raised
about alleged problems related to
program administration. The amoiuntof '
concern has caused FNS to devise a
plan for determining the extent of ran
dealing with such problems. As
mentioned above, $4 million has beenii
appropriated for such activity.
Regulations dealing with the plan are
currently being developed by FNS,
Amounts ofSAEAllocated-.Two
comments reflected the concern that,
since the allocation formulae are based
on program size in the second preedting
fiscal year, the SAE allocation to a State
agency which assumed administration
of a program in the interval would not,
include funds for that program.
Similarly, a State agency which
relinquished administration, wolld
receive an allocation based. In part, an a
program which it is no longer
administering. FNS believes that the
intention was to tie the allocations to (1)
whether or not a given program. In '
whole or in part. is currently being
administered by the State agency and
(2) the amount of program funds
expended in a program in the applicable
year, regardless of which agency was
administering It. This position Is










Federal Register / Vol. 44, No. 163 / Tuesday, August 21, 1979 / Rules and Regulations


reflected in the language of this final
regulation.
Negotiated Start-up Assistance-The
Interim regulation provides that, when a
State agency assumes administration of
a program or programs in nonprofit
private schools and child care
institutions from FNS an appropriate
adjustment in the form of start-up cost
assistance from $10,000 to $100,000 will
be paid by FNS to the State agency. One
commenter asked that clarification be
provided as to whether or not this would
be a one year payment or would be
repealed during the second year of
administration. Since this is "start-up
assistance", it is a one-year payment,
provided to a State agency to assist in
meeting administrative expenses
inherent in assuming program
administration. During the first year,
I and in each subsequent year. SAE
funds, as provided for in the applicable
formulae, will also be made available.
In the same area. a second commenter
suggested that the provision requiring
payment of the start-up cost assistance
"not later than the succeeding fiscal
year" could cause a delay in such
payment far beyond the time by which it
.: was needed. FNS agrees that these
funds are most appropriately payable at
the earliest possible time, certainly
during the first full year of the State
agency's administration of a program,
and that the referenced language,
extracted from Pub. L. 95-160, serves
only as a final deadline for such
payments.
Use of SAE in the Food Distribution
Program-One commenter stated that
the interim regulation appeared to be
too restrictive in describing the uses for
which SAE funds may be used in the
Food Distribution Program. FNS did not
intend that the use of these funds be as
limited as a literal reading of the interim
regulations might suggest and has
changed this paragraph in the final
regulations to make the costs allowable
under the commodity program
consistent with those in effect for the
other programs. The use of SAE funds is,
of course, limited to the administration
H. of the Food Distribution Program in
...schools and institutions which
participate in the child nutrition
programs.
SAE and State Planning-Several
comments pointed out the fact that some
State agencies must know with some
certainty the amounts of money which
will be available to them under SAE
This is related to the fact that in some
States, agency budgets must be
approved by legislatures, and to amend
such budgets during the year, based on
anticipated receipt of additional funds,
IlU.S. GOVERNMENT PRINTING OFFICE: 1979-2311-539:16


can be a difficult process. FNS
understands this problem but feels that
the one-percent formula for schools and
the Child Care Food Program (CCFP)
formula (the combined total of which
represents nearly 80 percent of available
SAE funds] gives the States a firm basis
upon which to plan. As suggested
previously, the funds'remaining after the
required allocations will be made
available to States based on an
assessment of individual State needs. In
taking any such action, FNS will do
whatever it can to accommodate the
situations in which State agencies find
themselves.
FNSRO Approval of State
Administrative Expenses-The interim
regulation includes a provision for
FNSRO approval of amounts of SAE
funds for "general administrative
expenses including travel and
related expenses." Since the approval of
SAE expenditures is part of the overall
Regional Office approval of the State's
Plan of Child Nutrition Operations, the
specific reference to FNSRO approval
discussed above has been removed from
this final regulation so as not to suggest
the need for an approval process in
addition to that established for State
plans.
Final Regulations
As stated previously, Pub. L. 95-627
made several changes in the allocation
and use of SAE funds. These changes,
which are incorporated in these final
regulations, are discussed below. They
are issued in final regulatory form in
order to implement statutory mandates.
For this reason, they are being issued
without the benefit of public comment.
Furthermore, since they are mandatory,
FNS would not.be able to aller them
based on unfavorable public comment.
Allocation Formula-Section 7 of Pub.
L. 95-627 sets out specific formulae for
allocation of SAE funds for school
feeding programs (i.e., the National
School Lunch, School Breakfast, Special
Milk and Food Service Equipment
Assistance Programs) and the Child
Care Food Program. In addition, as
provided for in Pub. L 95-100. SAE
funds may be used in the administration
of the Food Distribution Program.
The school program allocation to each
State will be one percent of the school
program funds expended within the
State during the second preceding year.
States which would earn less than
$100,000 under this formula will receive
a minimum grant of $100.000, or the
amount of SAi: funds which the Slate
was allocated in the fiscal year 1978. if
that amount i. r.iore than $100,000. As
suggested abt..r States will be


allocated SAE funds based on the
school feeding programs they are
administering during the year that the
funds are allocable, not those they
administered two years ago, and the
expenditures to which the formula is
applied are the total expenditures in the
Slate on a program-by-program basis.
Thus, for example, a State agency which
assumed administration of private
schools from FNS in fiscal year 1978
would, in fiscal year 1979, be allocated,
in part, SAE funds on the basis of one
percent of applicable program funds
paid by FNSRO to private schools in
1977.
Prior to Pub. L. 95-627. SAB funds for
the Child Care Food Program were
included in the one percent school
program allocation. Now a separate
formula for Child Care Food Program
SAE funds is provided for and is to be
applied in a manner similar lo that for
the school programs. However, in the
case of Child Care Food Program SAE
funds, there is no minimum allocation
and the law permits FNS the
discretionary authority to increase or
decrease the allocation to a State,
depending on the current size of the
program within the Slate. Thus, as
example, if the Child Care Food Program
in a State has grown substantially over
the prior two year period, FNS may
increase the SAE allocation to that State
if it determines that the level allocable
under the formula is inadequate to
administer the larger program.
Under Pub. L. 95-627, FNS has the
authority to allocate the remaining funds
to States in amounts determined
necessary for the effective
administration of the programs (the law
provides fur an annual overall SAE
appropriation of one and one-half
percent of school program and CCFP
program funds expended during the
second preceding fiscal year). FNS is
developing a plan for implementing this
provision which will be issued in
proposed rulemaking.
.Fund Transfers, Limitations and
Recordkeeping-Section 7(a)(5) of Pub.
L. 95-427 requires funds be used for the
costs related to administering the
program for which each allocation is
made. It also provides that States have
the authority to transfer SAE funds
among the amounts allocated fur school
feeding programs, the CCFP and the
Summer Food Service Program for
Children (a separate SAE allocation is
provided for the administration of
summer programs under Section 13 of
the National School Lunch Act. as
amended, and 7 CFR Part 225). The
amounts of the transfers are limited to
ten percent of any one fund allocation.


48956


-~-~-





UNIVERSITY OF FLORIDA



3 1262 08741 9023


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