Interim Relief

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 772

RIN 3206-AF76

Interim Relief

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is publishing

final regulations which reflect administrative case law on taking

personnel actions to provide interim relief under the Whistleblower

Protection Act of 1989. These regulations also reflect OPM's initiative

to sunset the Federal Personnel Manual.

EFFECTIVE DATE: July 18, 1994.

FOR FURTHER INFORMATION CONTACT:

Gary D. Wahlert (202) 606-2920.

SUPPLEMENTARY INFORMATION: OPM published for comment proposed changes

to the regulations on this subject in the Federal Register on February

17, 1994 (59 FR 7909). Comments and suggestions were received from

three agencies and eighteen individuals. These comments and

suggestions, along with the rationale for and explanations of changes

to the regulations, are discussed below.

The Whistleblower Protection Act of 1989 (WPA), Pub. L. 101-12

codified at 5 U.S.C. 7701(b)(2)(A), provided that prevailing parties in

an appeal to the Merit Systems Protection Board (MSPB) ``* * * shall be

granted the relief provided in the decision, and remaining in effect

pending the outcome of any petition for review * * *.'' OPM published

final regulations on this subject in the Federal Register on January

31, 1992 (57 FR 3707-3715). The final regulations authorized agencies

to take interim personnel actions to provide a prevailing applicant or

employee the interim relief ordered in an MSPB initial decision.

Interim personnel actions include, but are not limited to, interim

appointments, interim repromotions after demotions, and interim within-

grade increases.

After these regulations were published, the Merit Systems

Protection Board (MSPB) issued an administrative decision in Leonard

Ginocchi v. Department of Treasury, 53 M.S.P.R. 62 (1992), which

explained MSPB's interpretation of the WPA with regard to interim

relief. In Ginocchi, the Board ruled that it would not look behind the

agency's determination under 5 U.S.C. 7701(b)(2)(A) that returning an

employee to the workplace would be unduly disruptive. It also held that

an agency making a determination of undue disruption did not have to

keep the employee on excused absence (administrative leave), but could

place the employee in other duties. OPM believes this facet of Ginocchi

is a reasonable and persuasive interpretation of the WPA. Since this

interpretation is inconsistent with a portion of OPM's regulations

(which was based on a more restrictive interpretation), OPM proposed to

delete that portion of the regulations--section 772.102(d). This change

helps reduce any confusion by practitioners before the Board about

their respective rights and responsibilities regarding interim relief.

With regard to the proposed change to the regulations, one

commenter expressed concern that deletion of the paragraph describing

the actions an agency may take to provide interim relief might be

misconstrued or misunderstood to mean that an agency no longer would

have the flexibility to place an employee in a non-duty, paid status

during interim relief. (Several commenters did misconstrue the proposed

change in this manner.) OPM emphasizes that this is not the intent of

the change. OPM believes that the statute itself and MSPB's

administrative case law noted above clearly show that an agency may

place an employee or applicant in a non-duty, pay status when an

``unduly disruptive'' determination is made provided the employee or

applicant receives ``pay, compensation, and all other benefits as terms

and conditions of employment during the period pending the outcome of

any petition for review * * *.'' [5 U.S.C. 7701(b)(2)(B)]

Another commenter noted that the current regulations refer to an

agency's authority to place an employee ``in the same or similar

position previously occupied'' and wondered whether that authority

would remain intact under the proposed change. An agency may continue

to place an employee in a ``similar'' position under the change but

under MSPB administrative case law the agency would be required to make

a determination of ``undue disruption'' whenever the employee is not

placed in the exact position he or she previously held.

Several commenters stated that they believed that the ``unduly

disruptive part of the law'' has been used against union personnel as a

``union busting tactic'' and that OPM proposes to ``advance the anti

labor tactics'' of the MSPB. The basis for this belief is unclear. OPM

does note that Federal unions with consultation rights under 5 U.S.C.

7117(d)(2) were afforded an opportunity to provide their views and

recommendations on the proposed regulations. Similar concerns or

beliefs were not raised by these organizations.

Finally, several commenters stated that they believed that MSPB

will not enforce its own regulations on interim relief. Another

commenter stated that his had occurred in his individual appeal. OPM's

changes do not address these concerns about MSPB's enforcement of its

regulations.

Since Federal Personnel Manual Supplement 296-33 was discontinued

under OPM's initiative to sunset the FPM, OPM has deleted the reference

to it in part 772 which provided that interim relief actions needed to

be prepared in accordance with the FPM. Now, agencies may rely on The

Guide to Processing Personnel Actions, an OPM handbook effective on

January 1, 1994 for guidance on how to prepare interim relief actions.

No concerns were raised by commenters about this portion of the

proposed change.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it applies

only to Federal employees.

List of Subjects in 5 CFR Part 772

Administrative practice and procedure; Government employees.

U.S. Office of Personnel Management.

James B. King.

Director.

Accordingly, OPM amends part 772 of title 5 of the Code of Federal

Regulations as follows:

PART 772--INTERIM RELIEF

1. The authority citation for part 772 continues to read as

follows:

Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.

Sec. 772.102 [Amended]

2. Section 772.102 is amended by removing paragraphs (d) and (g);

redesignating paragraphs (e) and (f) as paragraphs (d) and (e)

respectively; and by removing the semicolon and the word ``and'' at the

end of paragraph (e) and inserting a period in its place.

[FR Doc. 94-17306 Filed 7-15-94; 8:45 am]

BILLING CODE 6325-01-M