Practices and Procedures, 39543-39548 [2013-15633]

Agencies

• Merit Systems Protection Board

[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Rules and Regulations]
[Pages 39543-39548]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15633]



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Federal Register / Vol. 78, No. 127 / Tuesday, July 2, 2013 / Rules 
and Regulations

[[Page 39543]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Parts 1201 and 1209


Practices and Procedures

AGENCY: Merit Systems Protection Board.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Merit Systems Protection Board (MSPB or the Board) hereby 
amends its rules of practice and procedure to conform the Board's 
regulations to legislative changes that amended whistleblower 
protections for Federal employees and the penalties available in cases 
where the MSPB determines that a Federal employee or a State or local 
officer or employee violated restrictions on partisan political 
activity.

DATES: This interim final rule is effective on July 2, 2013. Submit 
written comments concerning this interim final rule on or before 
September 3, 2013.

ADDRESSES: Submit your comments concerning this interim final rule by 
one of the following methods and in accordance with the relevant 
instructions:
    Email: mspb@mspb.gov. Comments submitted by email can be contained 
in the body of the email or as an attachment in any common electronic 
format, including word processing applications, HTML and PDF. If 
possible, commenters are asked to use a text format and not an image 
format for attachments. An email should contain a subject line 
indicating that the submission contains comments concerning the MSPB's 
interim final rule. The MSPB asks that parties use email to submit 
comments if possible. Submission of comments by email will assist MSPB 
to process comments and speed publication of a final rule.
    Fax: (202) 653-7130. Faxes should be addressed to William D. 
Spencer and contain a subject line indicating that the submission 
contains comments concerning the MSPB's interim final rule.
    Mail or other commercial delivery: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419.
    Hand delivery or courier: Comments should be addressed to William 
D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M 
Street NW., Washington, DC 20419, and delivered to the 5th floor 
reception window at this street address. Such deliveries are only 
accepted Monday through Friday, 9 a.m. to 4:30 p.m., excluding Federal 
holidays.
    Instructions: As noted above, MSPB requests that commenters use 
email to submit comments, if possible. All comments received will be 
included in the public docket without change and will be made available 
online at the Board's Web site, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information or other information whose disclosure 
is restricted by law. Those desiring to submit anonymous comments must 
submit comments in a manner that does not reveal the commenter's 
identity, include a statement that the comment is being submitted 
anonymously, and include no personally-identifiable information. The 
email address of a commenter who chooses to submit comments using email 
will not be disclosed unless it appears in comments attached to an 
email or in the body of a comment.

FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW., Washington, 
DC 20419; phone: (202) 653-7200; fax: (202) 653-7130; or email: 
mspb@mspb.gov.

SUPPLEMENTARY INFORMATION: This interim final rule is necessary to 
conform the MSPB's regulations to recent amendments to Federal law 
contained in the Hatch Act Modernization Act of 2012, Public Law 112-
230 (the Act) and the Whistleblower Protection Enhancement Act of 2012, 
Public Law 112-199 (WPEA). The Act was signed by the President on 
December 28, 2012, and became effective on January 27, 2013. The WPEA 
was signed by the President on November 27, 2012, and became effective 
on December 27, 2012. The Board elected to combine all regulatory 
changes necessitated by the Act and the WPEA in this interim final rule 
because the Act and the WPEA have already taken effect.
    Ordinarily, the Administrative Procedure Act (APA) requires an 
agency to provide notice of proposed rulemaking and a period of public 
comment before the promulgation of a new regulation. 5 U.S.C. 553(b) 
and (c). However, section 553(b) of the APA specifically provides that 
the notice and comment requirements do not apply:
    (A) To interpretative rules, general statements of policy, or rules 
of agency organization, procedure, or practice; or
    (B) When the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. The APA also requires 
the publication of any substantive rule at least thirty days before its 
effective date, 5 U.S.C. 553(d), except where the rule is interpretive, 
where the rule grants an exception or relieves a restriction, or ``as 
otherwise provided by the agency for good cause found and published 
with the rule.'' Id.
    A finding that notice and comment rulemaking is ``unnecessary'' 
must be ``confined to those situations in which the administrative rule 
is a routine determination, insignificant in nature and impact, and 
inconsequential to the industry and to the public.'' Mack Trucks, Inc. 
v. Environmental Protection Agency, 682 F.3d 87, 94 (D.C. Cir. 2012). 
The Board finds that use of an interim final rule instead of notice and 
comment rulemaking is appropriate here because the amendments contained 
herein merely reflect changes to both the Hatch Act and the 
Whistleblower Protection Act that have already been enacted into law. 
Komjathy v. National Transp. Safety Bd., 832 F.2d 1294, 1296-97 (D.C. 
Cir. 1987) (notice and comment unnecessary where regulation does no 
more than repeat, virtually verbatim, the statutory grant of 
authority); Gray Panthers Advocacy Comm. v. Sullivan, 936 F.2d 1284, 
1291-92 (D.C. Cir. 1991) (no reason exists to require notice and 
comment procedures where regulations restate or paraphrase the detailed 
requirements of the statute).

[[Page 39544]]

    In addition, the Act and the WPEA both took effect 30 days after 
signature by the President. Given the short time within which 
amendments to the Act and the WPEA took effect, the Board finds that 
good cause exists to publish these amendments to its regulations in an 
interim rule that is effective immediately in order to reduce confusion 
caused by outdated regulations. Philadelphia Citizens in Action v. 
Schweiker, 669 F.2d 877, 882-84 (3d Cir. 1982) (finding good cause to 
dispense with notice and comment where Omnibus Budget Reconciliation 
Act amendments enacted by Congress became effective by statute on a 
specific date, shortly after enactment).

Regulatory Changes Required Under the Hatch Act Modernization Act of 
2012

    Links to the Act and a summary of the Act prepared by the 
Congressional Research Service are on MSPB's Web site at https://www.mspb.gov/appeals/uscode.htm. The Hatch Act prohibits certain 
Federal, State, and local government employees from engaging in certain 
political activities. Chapter 73 of title 5 covers Federal employees 
and chapter 15 covers State and local employees. Of the numerous 
changes made by the Act, the only item that requires an amendment to 
the MSPB's regulations concerns the penalty structure in provisions of 
the Hatch Act covering Federal employees. Prior to the effective date 
of the Act, the Hatch Act required the MSPB to impose termination of 
Federal employment for a Hatch Act violation, unless the Board found by 
unanimous vote that the violation did not warrant removal. Special 
Counsel v. Simmons, 90 M.S.P.R. 83, ] 14 (2001) (``[U]nder 5 U.S.C. 
7326, removal is presumptively appropriate for a Federal employee's 
violation of the Hatch Act, unless the Board finds by unanimous vote 
that the violation does not warrant removal, whereupon a penalty of not 
less than 30 days' suspension without pay shall be imposed by direction 
of the Board.'') The Act modifies 5 U.S.C. 7326, the penalty provision 
of the Hatch Act, and now allows the MSPB to punish a violation by 
ordering removal, reduction in grade, debarment from Federal employment 
for a period not to exceed 5 years, suspension, reprimand, or an 
assessment of a civil penalty not to exceed $1,000. These are the same 
penalties the Board may impose in other disciplinary cases under 5 
U.S.C. 1215(a)(3).
    This change in the Hatch Act penalty provision therefore requires 
the MSPB to delete 5 CFR 1201.125(c) and 1201.126(c), which contain 
specialized provisions that were necessary to accommodate the unique 
Hatch Act penalty provision that existed prior to the enactment of the 
Act.

Regulatory Changes Required Under the Whistleblower Protection 
Enhancement Act of 2012

    Links to the WPEA and a summary of the WPEA prepared by the 
Congressional Research Service are on MSPB's Web site at https://www.mspb.gov/appeals/uscode.htm. A summary of the amendments to the 
MSPB's regulations required as a result of the enactment of the WPEA 
follows.

Scope of Protected Activity

    Section 101 of the WPEA expanded the scope of protected activity 
subject to individual right of action (IRA) appeals. Previously, such 
appeals were limited to claims of retaliation for whistleblowing 
disclosures protected under 5 U.S.C. 2302(b)(8). IRA appeals now 
include claims of retaliation for additional protected activities 
covered under certain sections of 5 U.S.C. 2302(b)(9), as amended:
    (A)(i): The exercise of any appeal, complaint, or grievance right 
granted by any law, rule, or regulation with regard to remedying a 
violation of 5 U.S.C. 2302(b)(8), i.e., the exercise of any appeal, 
complaint, or grievance right that included a claim of reprisal for 
protected whistleblowing;
    (B): testifying for or otherwise lawfully assisting any individual 
in the exercise of any right granted by any law, rule, or regulation;
    (C): cooperating with or disclosing information to the Inspector 
General of an agency, or the Special Counsel, in accordance with 
applicable provisions of law; and
    (D): refusing to obey an order that would require the individual to 
violate a law.
    To accommodate these changes, all of the references to 
``whistleblowing activities'' in the MSPB's regulations have been 
changed to refer to ``whistleblowing or other protected activity,'' and 
we have added a definition of ``other protected activity'' to section 
1209.4, immediately following the definition of ``whistleblowing,'' 
which describes the activities protected by subsections (A)(i), (B), 
(C), and (D) of 5 U.S.C. 2302(b)(9).
    We have modified and added to the Examples provided in section 
1209.2 to illustrate the additional categories of protected activity. 
Example 2 reflects that, because IRA appeals now include claims of 
retaliation for exercising the rights protected by 5 U.S.C. 
2302(b)(9)(A)(i), but not subsection (A)(ii), whether a claim of 
retaliation for exercising an appeal, complaint, or grievance right 
will be cognizable as an IRA appeal depends on whether the prior 
appeal, complaint, or grievance included a claim of retaliation for 
whistleblowing. In what might be viewed an anomaly in the scope of 
protected activity, Example 2 notes that, while a claim that one 
suffered reprisal for his or her own protected equal employment 
opportunity (EEO) activity may not be the subject of an IRA appeal, a 
claim that one suffered reprisal for testifying for or lawfully 
assisting another employee's protected EEO activity can be the subject 
of an IRA appeal. This is true because the latter activity is protected 
by subsection (b)(9)(B), which can form the basis of an IRA appeal, 
while the former is protected by subsection (b)(9)(A)(ii), which cannot 
form the basis of an IRA appeal.

Order and Elements of Proof

    New paragraph (e) has been added to section 1209.2, entitled 
``Elements and Order of Proof.'' This accomplishes three things, only 
one of which reflects changes to the law made by the WPEA. First, this 
paragraph defines the merits issues in a claim of retaliation for 
whistleblowing or other protected activity. Although the Board has laid 
out these elements of proof in numerous decisions, they have not 
previously been set forth explicitly in the part 1209 regulations. 
Second, this paragraph incorporates and states explicitly the 
``knowledge/timing'' test of 5 U.S.C. 1221(e). Third, this paragraph 
incorporates section 114 of the WPEA, which addresses the scope of due 
process available to employees in whistleblowing cases. Specifically, 
section 114 provides that the issue of whether an agency can prove by 
clear and convincing evidence that it would have taken the same action 
in the absence of the appellant's whistleblowing or other protected 
activity will be reached only if there has first been a finding that an 
employee's whistleblowing or other protected activity was a 
contributing factor in a covered personnel action. Previously, the 
Board had ruled that it can, in an appropriate case, consider the clear 
and convincing evidence matter prior to determining whether a protected 
disclosure was a contributing factor in a covered personnel action. 
E.g., McCarthy v. International Boundary & Water Commission, 116 
M.S.P.R. 594, ] 29 (2011); Azbill v. Department of Homeland Security, 
105 M.S.P.R. 363,

[[Page 39545]]

] 16 (2007) (``The Board may resolve the merits issues in any order it 
deems most efficient.''). See also, Fellhoelter v. Department of 
Agriculture, 568 F.3d 965, 971 (Fed. Cir. 2009) (affirming the process 
and noting that the court had ``tacitly approved of the Board's 
practice'' in the past).

What Constitutes a Disclosure

    The definition of ``whistleblowing'' in section 1209.4(b) has been 
revised to include the definition of ``disclosure'' contained in 
section 102 of the WPEA.

Reasonable Belief Test

    The definition of what constitutes a ``reasonable belief'' from 
section 103 of the WPEA, which codifies the standard adopted by the 
U.S. Court of Appeals for the Federal Circuit in Lachance v. White, 174 
F.3d 1378, 1381 (Fed. Cir. 1999), has been incorporated into section 
1209.4.

Nondisclosure Policies, Forms, or Agreements as Covered Personnel 
Actions

    Section 1209.4(a) has been updated to include the implementation or 
enforcement of any nondisclosure policy, form, or agreement as a 
covered personnel action as reflected in section 104(a) of the WPEA.

Compensatory Damages

    Section 1209.3, 1201.3(b)(2), 1201.201 and 1201.202 have been 
amended to provide for the possibility of an award of compensatory 
damages when there has been a finding of retaliation for whistleblowing 
or other protected activity, as provided by section 107 of the WPEA.

Referrals to the Special Counsel

    Section 1209.13 has been revised to reflect that referrals to the 
Special Counsel will be made under this part when the Board determines 
that there is a reason to believe that a current Federal employee may 
have committed a prohibited personnel practice under 5 U.S.C. 
2302(b)(9)(A)(i), (B), (C), or (D), as well as when there is a reason 
to believe that a current Federal employee may have committed a 
prohibited personnel practice under 5 U.S.C. 2302(b)(8).

List of Subjects in 5 CFR Parts 1201 and 1209

    Administrative practice and procedure.

    Accordingly, for the reasons set forth in the preamble, the Board 
amends 5 CFR parts 1201 and 1209 as follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 5 CFR part 1201 continues to read as 
follows:

    Authority:  5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.


0
2. Section 1201.3 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  1201.3  Appellate jurisdiction.

* * * * *
    (b) * * *
    (2) Appeals involving an allegation that the action was based on 
appellant's whistleblowing or other protected activity. Appeals of 
actions appealable to the Board under any law, rule, or regulation, in 
which the appellant alleges that the action was taken because of the 
appellant's whistleblowing or other protected activity, are governed by 
part 1209 of this title. The provisions of subparts B, C, E, F, and G 
of part 1201 apply to appeals and stay requests governed by part 1209 
unless other specific provisions are made in that part. The provisions 
of subpart H of this part regarding awards of attorney fees, 
compensatory damages, and consequential damages under 5 U.S.C. 1221(g) 
apply to appeals governed by part 1209 of this chapter.
* * * * *

0
3. Section 1201.113 is amended by revising paragraph (f) to read as 
follows:


Sec.  1201.113  Finality of decision.

* * * * *
    (f) When the Board, by final decision or order, finds there is 
reason to believe a current Federal employee may have committed a 
prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or 
2302(b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to 
the Special Counsel to investigate and take appropriate action under 5 
U.S.C. 1215.

0
4. Section 1201.120 is revised to read as follows:


Sec.  1201.120  Judicial review.

    Any employee or applicant for employment who is adversely affected 
by a final order or decision of the Board under the provisions of 5 
U.S.C. 7703 may obtain judicial review as provided by 5 U.S.C. 7703. As 
Sec.  1201.175 of this part provides, an appropriate United States 
district court has jurisdiction over a request for judicial review of 
cases involving the kinds of discrimination issues described in 5 
U.S.C. 7702.

0
5. Section 1201.125 is amended by revising the first sentence of 
paragraph (b) and removing paragraph (c).
    The revision reads as follows:


Sec.  1201.125  Administrative law judge.

* * * * *
    (b) The administrative law judge will issue an initial decision on 
the complaint pursuant to 5 U.S.C. 557. * * *

0
6. Section 1201.126 is amended by revising paragraph (a) and removing 
paragraph (c).
    The revision reads as follows:


Sec.  1201.126  Final decisions.

    (a) In any action to discipline an employee, except as provided in 
paragraph (b) of this section, the administrative law judge, or the 
Board on petition for review, may order a removal, a reduction in 
grade, a debarment (not to exceed five years), a suspension, a 
reprimand, or an assessment of a civil penalty not to exceed $1,000. 5 
U.S.C. 1215(a)(3).
* * * * *

0
7. Section 1201.132 is amended by revising paragraph (b) to read as 
follows:


Sec.  1201.132  Final decisions.

* * * * *
    (b)(1) Subject to the provisions of paragraph (b)(2) of this 
section, in any case involving an alleged prohibited personnel practice 
described in 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), 
the judge, or the Board on petition for review, will order appropriate 
corrective action if the Special Counsel demonstrates that a disclosure 
or protected activity described under 5 U.S.C. 2302(b)(8) or 
2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the 
personnel action that was taken or will be taken against the 
individual.
    (2) Corrective action under paragraph (b)(1) of this section may 
not be ordered if the agency demonstrates by clear and convincing 
evidence that it would have taken the same personnel action in the 
absence of such disclosure or protected activity. 5 U.S.C. 
1214(b)(4)(B).
0
8. Section 1201.133 is revised to read as follows:


Sec.  1201.133  Judicial review.

    An employee, former employee, or applicant for employment who is 
adversely affected by a final Board decision on a corrective action 
complaint brought by the Special Counsel may obtain judicial review of 
the decision as provided by 5 U.S.C. 7703.

0
9. Section 1201.201 is amended by revising paragraph (d) to read as 
follows:


Sec.  1201.201  Statement of purpose.

* * * * *

[[Page 39546]]

    (d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an 
award of compensatory damages to a prevailing party who is found to 
have been intentionally discriminated against based on race, color, 
religion, sex, national origin, or disability. The Whistleblower 
Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes 
an award of compensatory damages in cases where the Board orders 
corrective action. Compensatory damages include pecuniary losses, 
future pecuniary losses, and nonpecuniary losses, such as emotional 
pain, suffering, inconvenience, mental anguish, and loss of enjoyment 
of life.
* * * * *


0
10. Section 1201.202 is amended by
0
a. Redesignating paragraphs (a)(6) through (8) as paragraphs (a)(7) 
through (9);,
0
b. Adding new paragraph (a)(6);
0
c. Revising paragraph (b) introductory text;
0
d. Redesignating paragraph (b)(2) as paragraph (b)(3);
0
e. Adding new paragraph (b)(2);
0
f. Adding paragraph (b)(4); and
0
g. Revising paragraph (c).
    The additions and revisions read as follows:


Sec.  1201.202  Authority for awards.

    (a) * * *
    (6) Attorney fees, costs and damages as authorized by 5 U.S.C. 
1214(h) where the Board orders corrective action in a Special Counsel 
complaint under 5 U.S.C. 1214 and determines that the employee has been 
subjected to an agency investigation that was commenced, expanded or 
extended in retaliation for the disclosure or protected activity that 
formed the basis of the corrective action.
* * * * *
    (b) Awards of consequential damages. The Board may order payment of 
consequential damages, including medical costs incurred, travel 
expenses, and any other reasonable and foreseeable consequential 
damages:
* * * * *
    (2) As authorized by 5 U.S.C. 1221(g)(4) where the Board orders 
corrective action to correct a prohibited personnel practice and 
determines that the employee has been subjected to an agency 
investigation that was commenced, expanded, or extended in retaliation 
for the disclosure or protected activity that formed the basis of the 
corrective action.
* * * * *
    (4) As authorized by 5 U.S.C. 1214(h) where the Board orders 
corrective action to correct a prohibited personnel practice and 
determines that the employee has been subjected to an agency 
investigation that was commenced, expanded, or extended in retaliation 
for the disclosure or protected activity that formed the basis of the 
corrective action.
    (c) Awards of compensatory damages. The Board may order payment of 
compensatory damages, as authorized by section 102 of the Civil Rights 
Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful 
intentional discrimination but not on an employment practice that is 
unlawful because of its disparate impact under the Civil Rights Act of 
1964, the Rehabilitation Act of 1973, or the Americans with 
Disabilities Act of 1990. The Whistleblower Protection Enhancement Act 
of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory 
damages in cases where the Board orders corrective action. Compensatory 
damages include pecuniary losses, future pecuniary losses, and 
nonpecuniary losses such as emotional pain, suffering, inconvenience, 
mental anguish, and loss of enjoyment of life.
* * * * *

PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS 
OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING OR OTHER 
PROTECTED ACTIVITY

0
11. The authority citation for 5 CFR part 1209 is amended to read as 
follows:

    Authority:  5 U.S.C. 1204, 1221, 2302(b)(8) and (b)(9)(A)(i), 
(B), (C), or (D), and 7701.


0
12. The heading for part 1209 is revised to read as set forth above.


0
13. Section 1209.1 is revised to read as follows:


Sec.  1209.1  Scope.

    This part governs any appeal or stay request filed with the Board 
by an employee, former employee, or applicant for employment where the 
appellant alleges that a personnel action defined in 5 U.S.C. 
2302(a)(2) was threatened, proposed, taken, or not taken because of the 
appellant's whistleblowing or other protected activity activities. 
Included are individual right of action appeals authorized by 5 U.S.C. 
1221(a), appeals of otherwise appealable actions allegedly based on the 
appellant's whistleblowing or other protected activity, and requests 
for stays of personnel actions allegedly based on whistleblowing or 
other protected activity.

0
14. Section 1209.2 is revised to read as follows:


Sec.  1209.2  Jurisdiction.

    (a) Generally. Under 5 U.S.C. 1221(a), an employee, former 
employee, or applicant for employment may appeal to the Board from 
agency personnel actions alleged to have been threatened, proposed, 
taken, or not taken because of the appellant's whistleblowing or other 
protected activity.
    (b) Appeals authorized. The Board exercises jurisdiction over:
    (1) Individual right of action (IRA) appeals. These are authorized 
by 5 U.S.C. 1221(a) with respect to personnel actions listed in 
1209.4(a) of this part that are allegedly threatened, proposed, taken, 
or not taken because of the appellant's whistleblowing or other 
protected activity. If the action is not otherwise directly appealable 
to the Board, the appellant must seek corrective action from the 
Special Counsel before appealing to the Board.

    Example 1: An agency gives Employee X a performance evaluation 
under 5 U.S.C. chapter 43 that rates him as ``minimally 
satisfactory.'' Employee X believes that the agency has rated him 
``minimally satisfactory'' because he reported that his supervisor 
embezzled public funds in violation of Federal law and regulation. 
Because a performance evaluation is not an otherwise appealable 
action, Employee X must seek corrective action from the Special 
Counsel before appealing to the Board or before seeking a stay of 
the evaluation. If Employee X appeals the evaluation to the Board 
after the Special Counsel proceeding is terminated or exhausted, his 
appeal is an IRA appeal.
    Example 2: As above, an agency gives Employee X a performance 
evaluation under 5 U.S.C. chapter 43 that rates him as ``minimally 
satisfactory.'' Employee X believes that the agency has rated him 
``minimally satisfactory'' because he previously filed a Board 
appeal of the agency's action suspending him without pay for 15 
days. Whether the Board would have jurisdiction to review Employee 
X's performance rating as an IRA appeal depends on whether his 
previous Board appeal involved a claim of retaliation for 
whistleblowing. If it did, the Board could review the performance 
evaluation in an IRA appeal because the employee has alleged a 
violation of 5 U.S.C. 2302(b)(9)(A)(i). If the previous appeal did 
not involve a claim of retaliation for whistleblowing, there might 
be a prohibited personnel practice under subsection (b)(9)(A)(ii), 
but Employee X could not establish jurisdiction over an IRA appeal. 
Similarly, if Employee X believed that the current performance 
appraisal was retaliation for his previous protected equal 
employment opportunity (EEO) activity, there might be a prohibited 
personnel practice under subsection (b)(9)(A)(ii), but

[[Page 39547]]

Employee X could not establish jurisdiction over an IRA appeal.
    Example 3: As above, an agency gives Employee X a performance 
evaluation under 5 U.S.C. chapter 43 that rates him as ``minimally 
satisfactory.'' Employee X believes that the agency has rated him 
``minimally satisfactory'' because he testified on behalf of a co-
worker in an EEO proceeding. The Board would have jurisdiction over 
the performance evaluation in an IRA appeal because the appellant 
has alleged a violation of 5 U.S.C. 2302(b)(9)(B).
    Example 4: Citing alleged misconduct, an agency proposes 
Employee Y's removal. While that removal action is pending, Employee 
Y files a complaint with OSC alleging that the proposed removal was 
initiated in retaliation for her having disclosed that an agency 
official embezzled public funds in violation of Federal law and 
regulation. OSC subsequently issues a letter notifying Employee Y 
that it has terminated its investigation of the alleged retaliation 
with respect to the proposed removal. Employee Y may file an IRA 
appeal with respect to the proposed removal.

    (2) Otherwise appealable action appeals. These are appeals to the 
Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) 
that include an allegation that the action was based on the appellant's 
whistleblowing or other protected activity. Otherwise appealable 
actions are listed in 5 CFR 1201.3(a). An individual who has been 
subjected to an otherwise appealable action must make an election of 
remedies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of 
this section.

    Example 5: Same as Example 4 above. While the OSC complaint with 
respect to the proposed removal is pending, the agency effects the 
removal action. OSC subsequently issues a letter notifying Employee 
Y that it has terminated its investigation of the alleged 
retaliation with respect to the proposed removal. With respect to 
the effected removal, Employee Y can elect to appeal that action 
directly to the Board or to proceed with a complaint to OSC. If she 
chooses the latter option, she may file an IRA appeal when OSC has 
terminated its investigation, but the only issue that will be 
adjudicated in that appeal is whether she proves that her protected 
disclosure was a contributing factor in the removal action and, if 
so, whether the agency can prove by clear and convincing evidence 
that it would have removed Employee Y in the absence of the 
protected disclosure. If she instead files a direct appeal, the 
agency must prove its misconduct charges, nexus, and the 
reasonableness of the penalty, and Employee Y can raise any 
affirmative defenses she might have.

    (c) Issues before the Board in IRA appeals. In an individual right 
of action appeal, the only merits issues before the Board are those 
listed in 5 U.S.C. 1221(e), i.e., whether the appellant has 
demonstrated that whistleblowing or other protected activity was a 
contributing factor in one or more covered personnel actions and, if 
so, whether the agency has demonstrated by clear and convincing 
evidence that it would have taken the same personnel action(s) in the 
absence of the whistleblowing or other protected activity. The 
appellant may not raise affirmative defenses, such as claims of 
discrimination or harmful procedural error. In an IRA appeal that 
concerns an adverse action under 5 U.S.C. 7512, the agency need not 
prove its charges, nexus, or the reasonableness of the penalty, as a 
requirement under 5 U.S.C. 7513(a), i.e., that its action is taken 
``only for such cause as will promote the efficiency of the service.'' 
However, the Board may consider the strength of the agency's evidence 
in support of its adverse action in determining whether the agency has 
demonstrated by clear and convincing evidence that it would have taken 
the same personnel action in the absence of the whistleblowing or other 
protected activity.
    (d) Elections under 5 U.S.C. 7121(g). (1) Under 5 U.S.C. 
7121(g)(3), an employee who believes he or she was subjected to a 
covered personnel action in retaliation for whistleblowing or other 
protected activity ``may elect not more than one'' of 3 remedies: An 
appeal to the Board under 5 U.S.C. 7701; a negotiated grievance under 5 
U.S.C. 7121(d); or corrective action under subchapters II and III of 5 
U.S.C. chapter 12, i.e., a complaint filed with the Special Counsel (5 
U.S.C. 1214), which can be followed by an IRA appeal filed with the 
Board (5 U.S.C. 1221). Under 5 U.S.C. 7121(g)(4), an election is deemed 
to have been made based on which of the 3 actions the individual files 
first.
    (2) In the case of an otherwise appealable action as described in 
paragraph (b)(2) of this section, an employee who files a complaint 
with OSC prior to filing an appeal with the Board has elected 
corrective action under subchapters II and III of 5 U.S.C. chapter 12, 
i.e., a complaint filed with OSC, which can be followed by an IRA 
appeal with the Board. As described in paragraph (c) of this section, 
the IRA appeal in such a case is limited to resolving the claim(s) of 
reprisal for whistleblowing or other protected activity.
    (e) Elements and Order of Proof. Once jurisdiction has been 
established, the merits of a claim of retaliation for whistleblowing or 
other protected activity will be adjudicated as follows:
    (1) The appellant must establish by preponderant evidence that he 
or she engaged in whistleblowing or other protected activity and that 
his or her whistleblowing or other protected activity was a 
contributing factor in a covered personnel action. An appellant may 
establish the contributing factor element through circumstantial 
evidence, such as evidence that the official taking the personnel 
action knew of the disclosure or protected activity, and that the 
personnel action occurred within a period of time such that a 
reasonable person could conclude that the disclosure or protected 
activity was a contributing factor in the personnel action.
    (2) If a finding has been made that a protected disclosure or other 
protected activity was a contributing factor in one or more covered 
personnel actions, the Board will order corrective action unless the 
agency demonstrates by clear and convincing evidence that it would have 
taken the same personnel action in the absence of such disclosure or 
activity.

0
15. Section 1209.3 is revised to read as follows:


Sec.  1209.3  Application of 5 CFR part 1201.

    Except as expressly provided in this part, the Board will apply 
subparts A, B, C, E, F, and G of 5 CFR part 1201 to appeals and stay 
requests governed by this part. The Board will apply the provisions of 
subpart H of part 1201 regarding awards of attorney fees, compensatory 
damages, and consequential damages under 5 U.S.C. 1221(g) to appeals 
governed by this part.

0
16. Section 1209.4 is amended by revising paragraphs (a)(10) through 
(12) and (b), redesignating paragraphs (c) and (d) as paragraphs (d) 
and (e) and adding new paragraph (c) and paragraph (f) to read as 
follows:


Sec.  1209.4  Definitions.

    (a) * * *
    (10) A decision to order psychiatric testing or examination;
    (11) The implementation or enforcement of any nondisclosure policy, 
form, or agreement; and
    (12) Any other significant change in duties, responsibilities, or 
working conditions.
    (b) Whistleblowing is the making of a protected disclosure, that 
is, a formal or informal communication or transmission, but does not 
include a communication concerning policy decisions that lawfully 
exercise discretionary authority, unless the employee or applicant 
providing the disclosure reasonably believes that the disclosure 
evidences any violation of any law, rule, or regulation, gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial and specific danger to public health or safety. It does not 
include a disclosure

[[Page 39548]]

that is specifically prohibited by law or required by Executive order 
to be kept secret in the interest of national defense or foreign 
affairs, unless such information is disclosed to Congress, the Special 
Counsel, the Inspector General of an agency, or an employee designated 
by the head of the agency to receive it.
    (c) Other protected activity means any of the following:
    (1) The exercise of any appeal, complaint, or grievance right 
granted by any law, rule, or regulation with regard to remedying a 
violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing;
    (2) Testifying for or otherwise lawfully assisting any individual 
in the exercise of any right granted by any law, rule, or regulation;
    (3) Cooperating with or disclosing information to Congress, the 
Inspector General of an agency, or the Special Counsel, in accordance 
with applicable provisions of law; or
    (4) Refusing to obey an order that would require the individual to 
violate a law.
* * * * *
    (f) Reasonable belief. An employee or applicant may be said to have 
a reasonable belief when a disinterested observer with knowledge of the 
essential facts known to and readily ascertainable by the employee or 
applicant could reasonably conclude that the actions of the Government 
evidence the violation, mismanagement, waste, abuse, or danger in 
question.

0
17. Section 1209.6 is amended by revising paragraphs (a)(4) and 
(a)(5)(ii) to read as follows:


Sec.  1209.6  Content of appeal; right to hearing.

    (a) * * *
    (4) A description of each disclosure evidencing whistleblowing or 
other protected activity as defined in Sec.  1209.4(b) of this part; 
and
    (5) * * *
    (ii) The personnel action was or will be based wholly or in part on 
the whistleblowing disclosure or other protected activity, as described 
in Sec.  1209.4(b) of this part.
* * * * *

0
18. Section 1209.7 is revised to read as follows:


Sec.  1209.7  Burden and degree of proof.

    (a) Subject to the exception stated in paragraph (b) of this 
section, in any case involving a prohibited personnel practice 
described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the 
Board will order appropriate corrective action if the appellant shows 
by a preponderance of the evidence that the disclosure or other 
protected activity was a contributing factor in the personnel action 
that was threatened, proposed, taken, or not taken against the 
appellant.
    (b) However, even where the appellant meets the burden stated in 
paragraph (a) of this section, the Board will not order corrective 
action if the agency shows by clear and convincing evidence that it 
would have threatened, proposed, taken, or not taken the same personnel 
action in the absence of the disclosure or other protected activity.

0
19. Section 1209.9 is amended by revising paragraph (a)(6)(ii) to read 
as follows:


Sec.  1209.9  Content of stay request and response.

    (a) * * *
    (6) * * *
    (ii) The action complained of was based on whistleblowing or other 
protected activity as defined in Sec.  1209.4(b) of this part; and
* * * * *

0
20. Section 1209.13 is revised to read as follows:


Sec.  1209.13  Referral of findings to the Special Counsel.

    When the Board determines in a proceeding under this part that 
there is reason to believe that a current Federal employee may have 
committed a prohibited personnel practice described at 5 U.S.C. 
2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will refer the 
matter to the Special Counsel to investigate and take appropriate 
action under 5 U.S.C. 1215.

William D. Spencer,
Clerk of the Board.
[FR Doc. 2013-15633 Filed 7-1-13; 8:45 am]
BILLING CODE 7400-01-P