[Federal Register Volume 59, Number 33 (Thursday, February 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3617]
[[Page Unknown]]
[Federal Register: February 17, 1994]
VOL. 59, NO. 33
Thursday, February 17, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 772
RIN 3206-AF76
Interim Relief
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is publishing a
proposed change to regulations reflecting administrative case law on
taking personnel actions to provide interim relief under the
Whistleblower Protection Act of 1989. These changes also reflect OPM's
initiative to sunset the Federal Personnel Manual.
DATES: Comments must be received on or before April 18, 1994.
ADDRESSES: Written comments may be sent or delivered to Marjorie A.
Marks, Chief, Family Programs and Employee Relations Division, Office
of Labor Relations and Workforce Performance, U.S. Office of Personnel
Management, room 7412, 1900 E Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Gary D. Wahlert (202) 606-2920.
SUPPLEMENTARY INFORMATION: The Whistleblower Protection Act of 1989
(WPA), Public Law 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, DC315I8910527, February 19, 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 is
proposing to delete that portion of the regulations--section
772.102(d). This change will help reduce any confusion by practitioners
before the Board about their respective rights and responsibilities
regarding interim relief.
In addition, OPM notes that guidance on preparing official
documentation to effect an interim personnel action is currently
located in Federal Personnel Manual Supplement 296-33. The current
regulations provide that interim relief actions need to be prepared in
accordance with that guidance and other guidance contained in FPM
Chapter 296. Consistent with OPM's initiative to sunset the FPM, OPM
proposes to delete references in the regulation to the FPM.
E.O. 12291, Federal Regulation
OPM has determined that this is not a major rule as defined under
Section 1(b) of E.O. 12291, Federal Regulation.
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 proposes to amend 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 redesignated paragraph (e) and inserting a period in its place.
[FR Doc. 94-3617 Filed 2-16-94; 8:45 am]
BILLING CODE 6325-01-M