Federal Sector Equal Employment Opportunity, 35558-35562 [2020-10965]
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(ii) The failure to receive an updated
certificate or status update from the
partner that should have been provided
under § 1.1446–6(c)(2)(ii)(B); and
(iii) The receipt of a notification from
the IRS under § 1.1446–6(c)(3) or (5) (see
§ 1.1446–6(e)(2) Example 5).
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Correction of Publication
Accordingly, 26 CFR part 1 is
corrected by making the following
correcting amendments:
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.1446–3 is amended
by adding paragraph (b)(2)(i)(B) to read
as follows:
■
Introduction
violation of section 717 of Title VII of
the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e–16
(hereinafter ‘‘Title VII’’); section 15 of
the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. 633a
(hereinafter ‘‘ADEA’’); or section 501 of
the Rehabilitation Act of 1973, as
amended, 29 U.S.C. 791 (hereinafter
‘‘Rehabilitation Act’’), may file a civil
action within 90 days of receipt of the
agency final action unless the
complainant has filed an appeal with
the EEOC, or 180 days after the
complaint was filed if an appeal has not
been filed and agency final action has
not been taken. See 29 CFR 1614.407(a)
& (b). When an appeal is filed with the
EEOC, the current rule states that the
complainant may file a civil action: (1)
Within 90 days of receipt of the EEOC’s
final decision on the appeal; or (2) 180
days after the filing of the appeal if the
EEOC has not issued a decision within
that period. See 29 CFR 1614.407(c) &
(d).
In Bullock v. Berrien, 688 F.3d 613,
618–19 (9th Cir. 2012), the court ruled
that a Federal employee who had filed
an administrative appeal with the EEOC
could withdraw the appeal and file a
civil action in district court within the
90-day period following receipt of the
agency final action. The court reasoned
that, because Title VII authorizes a
Federal sector complainant to file a civil
action ‘‘[w]ithin 90 days of receipt of
notice of [agency] final action,’’ 42
U.S.C. 2000e–16(c), a complainant is not
required to file an appeal with the EEOC
before going to court. See Bullock, 688
F.3d at 618.
In accordance with Bullock, the
NPRM proposed changing § 1614.407 to
state that a complainant may withdraw
an administrative appeal and instead
file a civil action if the civil action is
filed within 90 days of receipt of the
notice of agency final action. The NPRM
also proposed revising § 1614.407 to
state that a complainant may withdraw
a request for reconsideration and
proceed to court if the civil action is
filed within 90 days of receipt of the
EEOC’s initial appellate decision. The
NPRM provided a 60-day comment
period for the public.
On February 14, 2019, the EEOC
published in the Federal Register a
Notice of Proposed Rulemaking
(hereinafter ‘‘NPRM’’) revising primarily
29 CFR 1614.407 (which pertains to a
Federal sector complainant’s right to file
a civil action). 84 FR 4015 (2019).
Currently, 29 CFR 1614.407 provides
that an individual complainant, or a
class agent or claimant, who has filed an
administrative complaint alleging a
Comments Generally
The EEOC received twenty comments
in response to the NPRM. Comments
were received from one agency, three
organizations, three attorneys or law
firms, and thirteen individuals, some of
whom identified themselves as Federal
or former Federal employees.
Of the thirteen comments submitted
by individuals, four were nonresponsive, six supported the proposed
Martin V. Franks,
Chief, Publications and Regulations Branch,
Legal Processing Division, Associate Chief
Counsel (Procedure and Administration).
[FR Doc. 2020–11111 Filed 6–10–20; 8:45 am]
BILLING CODE 4830–01–P
§ 1.1446–3 Time and manner of calculating
and paying over the 1446 tax.
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(b) * * *
(2) * * *
(i) * * *
(B) Calculation rules when certificates
are submitted under § 1.1446–6—(1) To
the extent applicable, in computing the
1446 tax due with respect to a foreign
partner, a partnership may consider a
certificate received from such partner
under § 1.1446–6(c)(1)(i) or (ii) and the
amount of state and local taxes
permitted to be considered under
§ 1.1446–6(c)(1)(iii). For the purposes of
applying this paragraph (b)(2)(i)(B), a
partnership shall first annualize the
partner’s allocable share of the
partnership’s items of effectively
connected income, gain, deduction, and
loss before—
(i) Considering under § 1.1446–
6(c)(1)(i) the partner’s certified
deductions and losses;
(ii) Determining under § 1.1446–
6(c)(1)(ii) whether the 1446 tax
otherwise due with respect to that
partner is less than $1,000 (determined
with regard to any certified deductions
or losses); or
(iii) Considering under § 1.1446–
6(c)(1)(iii) the amount of state and local
taxes withheld and remitted on behalf of
the partner.
(2) The amount of the limitation
provided in § 1.1446–6(c)(1)(i)(C) shall
be based on the partner’s allocable share
of these annualized amounts. For any
installment period in which the
partnership considers a partner’s
certificate, the partnership must also
consider the following events to the
extent they occur prior to the due date
for paying the 1446 tax for such
installment period—
(i) The receipt of an updated
certificate or status update from the
partner under § 1.1446–6(c)(2)(ii)(B)
certifying an amount of deductions or
losses that is less than the amount
reflected on the superseded certificate
(see § 1.1446–6(e)(2) Example 4);
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EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
29 CFR Part 1614
RIN 3046–AA97
Federal Sector Equal Employment
Opportunity
Equal Employment
Opportunity Commission.
ACTION: Final rule.
AGENCY:
The Equal Employment
Opportunity Commission (‘‘EEOC’’ or
‘‘Commission’’) is issuing a final rule
that revises its Federal sector complaint
processing regulations to address when
a complainant may file a civil action
after having previously filed an
administrative appeal or request for
reconsideration with the EEOC. The
final rule also contains certain editorial
changes.
DATES: Effective June 11, 2020.
FOR FURTHER INFORMATION CONTACT:
Kathleen Oram, Assistant Legal
Counsel, (202) 663–4681, or Gary J.
Hozempa, Senior Staff Attorney, (202)
663–4666, Office of Legal Counsel, U.S.
Equal Employment Opportunity
Commission. Requests for this
document in an alternative format
should be made to the EEOC’s Office of
Communications and Legislative Affairs
at (202) 663–4191 (voice) or (202) 663–
4494 (TTY).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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changes, and three individuals
expressed opposition. Two
organizations and two attorneys
opposed the changes proposed in the
NPRM. A law firm also disagreed with
the proposed revisions and
recommended an alternative approach.
The agency and one organization
supported the changes. The comments
are discussed in more detail below.
Comments Supporting the NPRM
One individual argued that filing a
civil action without first having to file
an appeal would be advantageous to
complainants, as it would eliminate the
180-day maximum waiting period if an
appeal were filed. Three other
individuals concluded that the changes
to 29 CFR 1614.407 would provide
clarity to district court judges, resulting
in uniform rulings that a complainant
properly is in court if a civil action is
filed within 90 days of receipt of the
agency final action.
Another individual and an agency
supported the proposed changes, stating
that the revisions would eliminate what
they regard as a barrier to obtaining
prompt relief. The agency noted that the
revisions will affect only ‘‘the timing of
a complainant’s ability to exercise their
rights; it does not affect the actual
exercise of those rights.’’
One organization supported the
proposed changes because it disagrees
with those courts that have dismissed
civil actions on the grounds that the
complainants failed to exhaust their
administrative remedies. It argued that
such dismissals place an added burden
on complainants, who then must
attempt to re-enter the administrative
process. It also asserted that the
dismissals prevent meritorious cases
from being prosecuted, thereby
depriving complainants of the relief to
which they are entitled. The
organization recommended that the
EEOC further revise § 1614.407 to state
explicitly that a complainant who files
a civil action in a manner consistent
with the proposed changes has
exhausted his or her administrative
remedies.
Further, this organization proposed
that the EEOC add new sections to the
regulation requiring agencies to ‘‘give
explicit notice to complainants on how
to take cases to federal district court
. . .’’ at the end of the investigation,
when the complainant is given a choice
of requesting a hearing before an EEOC
Administrative Judge, or a final decision
by the agency. Lacking such notice, it
argued, complainants are misled into
believing that one must request a
hearing before being able to proceed to
court.
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Comments Opposing the NPRM
One individual is opposed to the
proposed revisions because she believes
the changes will encourage
complainants to opt out of the
administrative process. She and an
organization noted that pursuing a civil
action, in contrast to pursuing an
administrative appeal, is more formal,
expensive, time consuming, and
intimidating for pro se plaintiffs.
Another individual and that
organization characterized the proposed
changes as an attempt by the EEOC to
reduce its appellate caseload by steering
complainants into the court system.
These two commenters further
asserted that the EEOC should not
change § 1614.407 based solely on a
ruling from a single Circuit Court.
Another individual argued that, aside
from constituting the only Circuit Court
to rule that an administrative appeal is
optional, the Bullock court ruled the
way it did because of the unique set of
facts before it—the plaintiff was a
former EEOC employee and, in her
participation in the EEOC appellate
process, she was asking the EEOC to
rule against itself. Thus, this individual
does not believe Bullock provides a
convincing rationale for a rule change.
Other commenters agreed that the facts
in Bullock were exceptional given that
the EEOC was the defendant. For this
reason, four commenters do not believe
Bullock rests on a solid legal foundation
sufficient for other Circuits to find its
reasoning persuasive. Their concern is
that most of the civil actions filed in
reliance on the proposed changes to
§ 1614.407 will result in dismissals for
failure to exhaust administrative
remedies.
Two commenters additionally
asserted that the proposed changes are
at odds with congressional intent,
arguing that, in passing section 717 of
Title VII, Congress intended
complainants to receive relief primarily
through the administrative process, thus
ensuring that district courts would not
be overburdened with adjudicating EEO
cases. In a similar vein, two commenters
expressed concern that the EEOC has
not explained how its proposed changes
would further the remedial purposes of
Title VII.
One organization expressed concern
that, if the proposed changes are made
final, the Civil Division of the U.S.
Department of Justice (hereinafter
‘‘DOJ’’) will continue to argue that a
civil action filed by a complainant who
also has filed an appeal is premature if
it is filed less than 181 days after the
appeal. Further, with respect to the
proposed revisions to 29 CFR 1614.409
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(‘‘effect of filing a civil action’’), three
commenters asked whether the effect of
the change will be that the EEOC will
not enforce an appellate decision
favorable to the complainant in the
event the complainant subsequently
files a civil action. One commenter
recommended revising § 1614.409 to
state that an agency is bound by a final
action favorable to the complainant,
even if the complainant later files an
appeal or a civil action.
A commenter, noting that it has
represented Federal sector complainants
who have traversed what a district court
called a ‘‘Byzantine’’ administrative
process, opposed the proposed
revisions, but mostly on grounds
different from those discussed above. It
argued that the EEOC’s proposed
changes to § 1614.407 will render the
Federal sector administrative process
even more Byzantine. This commenter
further maintained that the EEOC’s
proposed revisions misinterpret section
717(c) of Title VII (which addresses a
complainant’s right to file a civil
action), arguing that, when a
complainant has filed an appeal with
the EEOC, section 717(c) permits a
complainant to file a civil action at any
time during the pendency of the appeal,
even if that means the complainant files
a civil action more than 90 days after
issuance of the agency’s final action.
The commenter further suggested that
the Commission should revise
§ 1614.407 to state that a complainant’s
withdrawal of an appeal or a request for
reconsideration constitutes a final
administrative decision that triggers the
statutory 90-day period for filing a civil
action.
The EEOC’s Response to the Comments
As some of the comments point out,
the EEOC was the defendant-agency in
Bullock. When the plaintiff initially
filed her civil action, the EEOC argued,
in part, that because plaintiff had
previously filed a timely appeal with
the EEOC, she had failed to exhaust her
administrative remedies. See Bullock v.
Dominguez, 2010 WL 1734964, at *2
(S.D. Cal. April 27, 2010). Relying on
section 717(c) of Title VII and 29 CFR
1614.407(c) & (d), the EEOC argued that
plaintiff was precluded from filing a
civil action until after the Commission
issued a decision or 180 days had
expired following the filing of her
administrative appeal. See id. The
district court agreed and dismissed
plaintiff’s civil action as premature. See
id. at *3. Plaintiff appealed to the Ninth
Circuit.
In its initial appellate brief, the EEOC
reiterated its position that the plaintiff
had failed to exhaust her administrative
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remedies. See Bullock, 688 F.3d at 615.
The Ninth Circuit asked for a
supplemental briefing, directing the
parties to discuss the Ninth Circuit’s
decision in Bankston v. White, 345 F.3d
768 (9th Cir. 2003). See Bullock, 688
F.3d at 615.1 In its supplemental brief,
the EEOC asserted that Bankston need
not be confined to the ADEA context
because the EEOC’s regulations
addressing administrative appeals
applied to Title VII, Rehabilitation Act,
and ADEA claims equally. See Bullock,
688 F.3d at 618. The EEOC thus argued
that the plaintiff in Bullock had
exhausted her administrative remedies
and the Ninth Circuit agreed. See id.,
688 F.3d at 615.
Thereafter, the EEOC reassessed 29
CFR 1614.407 in light of Bullock, and
concluded that an appeal to the EEOC
is an optional administrative step that a
complainant need not take in order to
exhaust administrative remedies. The
EEOC published the NPRM in
accordance with its revised view of the
exhaustion issue. Having considered the
comments, the EEOC has decided to
issue this final rule making only slight
changes to the NPRM, as explained
below.
The EEOC disagrees that the revised
§ 1614.407 will encourage complainants
to opt out of the administrative process.
Nor is it the EEOC’s intent to route
complainants to state or Federal court.
Assuming, as some have suggested, that
pursuing a civil action is more formal
and expensive than pursuing an
administrative appeal, and more
difficult for a pro se plaintiff to navigate,
these factors will discourage most
complainants from opting out of the
administrative process. Nevertheless,
we believe there is a small percentage of
complainants who prefer to pursue their
claims in court. The EEOC revised
§ 1614.407 with these complainants in
mind.
When a complainant requests a final
decision following the completion of an
investigation or fails to reply to the
notice that the complainant must
request a hearing or a final agency
decision, the agency must take final
action by issuing a final decision. See 29
CFR 1614.110(b). If the complainant
requests a hearing, the agency must take
final action by issuing an order
notifying the complainant whether the
1 In Bankston, the Ninth Circuit held that the
plaintiff, who had filed an appeal with the Merit
Systems Protection Board concerning his ADEA
claim against the Occupational Safety and Health
Administration, was not required to see his appeal
through to completion or until the lapse of the
requisite waiting period, but instead could
withdraw his appeal and proceed directly to court.
See Bankston, 345 F.3d at 776–77.
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agency will fully implement the
decision of the Administrative Judge.
See id., § 1614.110(a). In both situations,
the agency’s final action must contain a
notice informing the complainant of,
among other things, his or her right to
file an appeal with the EEOC or a civil
action in Federal district court. See id.,
§ 1614.110(a) & (b). An appeal to the
EEOC must be filed within 30 days of
receipt of the agency’s final action. See
id., § 1614.402(a). Under the current
rule, a civil action must be filed within
90 days of receipt of the agency’s final
action ‘‘if no appeal has been filed.’’ Id.,
§ 1614.407(a).
Because a complainant must decide
whether to file an appeal within 30
days, the effect of the current regulation
is to cause a complainant to decide
whether to file a civil action within that
same 30-day period, since the current
rule allows a complainant to file a civil
action only ‘‘if no appeal has been
filed.’’ Therefore, in practice, the
current rule reduces the statutory 90day time period in which a complainant
may file a civil action to 30 days. The
revised rule, on the other hand, will
afford the complainant the full 90-day
statutory period in which to decide
whether to go to court, since the
complainant will not forfeit that right if
he or she, being undecided, timely files
an administrative appeal. The
Commission believes that giving a
complainant the full 90-day period in
which to decide whether to go to court
advances, rather than impedes, the
remedial purposes of the EEO statutes,
and preserves all avenues of recourse a
complainant is entitled to pursue.
The EEOC also disagrees with the
commenters arguing that the EEOC’s
reliance on Bullock to support its
revisions as set forth in the NPRM will
lead to inconsistencies among the courts
regarding the exhaustion issue. As some
comments accurately state, there have
been courts outside the Ninth Circuit
that have held that a complainant who
withdraws an appeal and files a civil
action less than 180 days after filing an
appeal has failed to exhaust
administrative remedies. The EEOC has
examined these decisions and each
court rests its ruling upon section 717(c)
of Title VII and the EEOC’s current
§ 1614.407.
The EEOC anticipates that these same
courts, as well as others, will show
deference to the revised § 1614.407
when presented with a plaintiff who has
withdrawn an appeal and filed a civil
action within 90 days of receipt of the
agency’s final action. In this regard,
while section 717(c) explicitly sets forth
when a complainant’s right to file a civil
action accrues, it is less clear about
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when exhaustion of administrative
remedies occurs. While section 717(c)
allows a complainant to appeal an
agency’s final action to the EEOC,
nothing contained in that section
requires that the complainant file an
appeal. Given that section 717(c)
specifies that a complainant can file a
civil action ‘‘[w]ithin 90 days of receipt
of notice of final action taken by a[n]
. . . agency . . . ,’’ section 717(c)
cannot be read as creating an exhaustion
requirement that a complainant must
file an appeal before proceeding in
court. Thus, it is the EEOC’s position
that filing an appeal is an optional,
rather than mandatory, administrative
step, and that a complainant who
initially files an appeal in accordance
with the 30-day regulatory deadline may
withdraw the appeal and go to court so
long as the complainant does so within
90 days of receipt of the agency’s final
action.
The Commission thus finds merit in
one organization’s suggestion that a
paragraph be added to § 1614.407
stating that a complainant who
withdraws an appeal or a request for
reconsideration within 90 days of
receipt of the agency final action has
exhausted his or her administrative
remedies. The final rule thus adds a
paragraph (g) to § 1614.407 stating that
a complainant, class agent, or class
claimant who withdraws an appeal or a
request for reconsideration and files a
civil action within 90 days of receipt of
the applicable final action shall be
deemed to have exhausted his or her
administrative remedies. The
Commission finds, however, that the
notice requirement suggested by the
same commenter is beyond the scope of
the NPRM.
Some commenters expressed
apprehension that DOJ’s Civil Division
will not agree with the Commission’s
revision to § 1614.407, arguing that the
Civil Division will seek dismissal of a
civil action as premature when filed by
a complainant who withdraws an
appeal within 90 days of receipt of the
agency’s final action. Relatedly, one
commenter argued that the EEOC’s
proposed rule should not limit a
complainant’s right to go to court to the
90-day period following receipt of the
agency final action.
Before the EEOC issued the NPRM for
public comment, it was circulated to all
Federal agencies pursuant to Executive
Order 12067. See 84 FR at 4016. Section
1614.407 as it appeared in the draft
NPRM circulated to the agencies did not
mention a 90-day window in which an
appeal could be withdrawn and a civil
action filed. Most agencies objected to
this omission, stating that the rule as
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drafted could be read as allowing a
complainant to withdraw an appeal any
time after it was filed and instead go to
court. The agencies suggested that the
revised rule should limit the withdrawal
period to the 90-day period following
receipt of the agency final action,
consistent with the ruling in Bullock.
See 84 FR at 4016. Most agencies,
including DOJ, stated they could
support the NPRM if the EEOC revised
§ 1614.407 as suggested. Thus, before
issuing the NPRM for public comment,
the EEOC included the 90-day window
for filing a civil action, consistent with
the agencies’ comments. See 84 FR at
4017. In light of the agency comments,
the EEOC is confident that DOJ will not
seek to dismiss a civil action that is filed
within 90 days of the plaintiff’s receipt
of an agency final action, even if the
plaintiff previously filed and withdrew
an appeal or a request for
reconsideration. With the agency
comments in mind, the EEOC declines
to follow the suggestion of the one
commenter that the right to file a civil
action not be limited to the 90-day
period following receipt of the agency
final action.
Finally, with respect to the revisions
made to § 1614.409, it has been the longstanding practice of the Commission to
cease processing an appeal when the
Commission learns that the complainant
has filed a civil action. This practice is
based on the EEOC’s position that a
judicial adjudication of a plaintiff’s EEO
complaint supersedes an administrative
decision addressing the same matter,
regardless of the outcome of the
decisions. The revisions to § 1614.409
reaffirm this long-standing position.
Moreover, the EEOC often is not made
aware of the fact that a complainant has
filed a civil action, resulting in the
Commission issuing a decision on an
appeal it should have terminated under
current § 1614.409. The Commission
believes it is necessary to revise
§ 1614.409 to state that the Commission
will not enforce a decision it issues after
the complainant has gone to court since
the Commission would not have issued
the decision had it known the
complainant had filed a civil action.
This is why revised § 1614.409
encourages complainants to notify the
EEOC when the complainant goes to
court, so as to enable the EEOC to
conserve resources and avoid issuing
decisions that are null and void.
Regulatory Procedures
Executive Order 12866
The Commission has complied with
the principles in section 1(b) of
Executive Order 12866, Regulatory
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Planning and Review. This rule is not a
‘‘significant regulatory action’’ under
section 3(f) of the order, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of the
order.
Executive Order 13771
This rule is not subject to Executive
Order 13771, Reducing Regulation and
Controlling Regulatory Cost. Pursuant to
guidance issued by the Office of
Management and Budget’s Office of
Information and Regulatory Affairs
(April 5, 2017), an ‘‘E.O. 13771
regulatory action’’ is defined as ‘‘[a]
significant regulatory action as defined
in Section 3(f) of E.O. 12866 . . . .’’ As
noted above, this rule is not a significant
regulatory action under section 3(f) of
E.O. 12866. Thus, this rule does not
require the EEOC to issue two E.O.
13771 deregulatory actions.
Paperwork Reduction Act
This rule contains no new
information collection requirements
subject to review by the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5
U.S.C. 605(b) that this rule will not have
a significant economic impact on a
substantial number of small entities
because it applies exclusively to
employees and agencies of the Federal
Government and does not impose a
burden on any business entities. For this
reason, a regulatory flexibility analysis
is not required.
Unfunded Mandates Reform Act of 1995
This rule will not result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Congressional Review Act
This rule does not substantially affect
the rights or obligations of non-agency
parties and, accordingly, is not a ‘‘rule’’
as that term is used by the
Congressional Review Act (Subtitle E of
the Small Business Regulatory
Enforcement Fairness Act of 1996).
Therefore, the reporting requirement of
5 U.S.C. 801 does not apply.
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List of Subjects in 29 CFR Part 1614
Administrative practice and
procedure, Age discrimination, Equal
employment opportunity, Government
employees, Individuals with
disabilities, Race discrimination,
Religious discrimination, Sex
discrimination.
For the Commission,
Janet L. Dhillon,
Chair.
Accordingly, for the reasons set forth
in the preamble, the Equal Employment
Opportunity Commission amends
chapter XIV of title 29 of the Code of
Federal Regulations as follows:
PART 1614—[AMENDED]
1. The authority citation for 29 CFR
part 1614 continues to read as follows:
■
Authority: 29 U.S.C. 206(d), 633a, 791 and
794a; 42 U.S.C. 2000e–16 and 2000ff–6(e);
E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218;
E.O. 11222, 3 CFR, 1964–1965 Comp., p. 306;
E.O. 11478, 3 CFR, 1969 Comp., p. 133; E.O.
12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p.
321.
§ 1614.201
[Amended]
2. In § 1614.201, remove paragraph
(c).
■ 3. In § 1614.407:
■ a. Revise the section heading.
■ b. In the introductory text, remove the
word ‘‘and’’ after ‘‘ADEA’’ and add in
its place a comma and add the words ‘‘,
and Genetic Information
Nondiscrimination Act’’ after
‘‘Rehabilitation Act.’’
■ c. Revise paragraphs (a) and (b).
■ d. Add paragraphs (e), (f), and (g).
The revisions and additions read as
follows:
■
§ 1614.407 Civil action: Title VII, Age
Discrimination in Employment Act,
Rehabilitation Act, and Genetic Information
Nondiscrimination Act.
*
*
*
*
*
(a) Within 90 days of receipt of the
agency final action on an individual or
class complaint;
(b) After 180 days from the date of
filing an individual or class complaint
if agency final action has not been
taken;
*
*
*
*
*
(e) After filing an appeal with the
Commission from an agency final
action, the complainant, class agent, or
class claimant may withdraw the appeal
and file a civil action within 90 days of
receipt of the agency final action. If the
complainant, class agent, or class
claimant files an appeal with the
Commission from a final agency action
E:\FR\FM\11JNR1.SGM
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35562
Federal Register / Vol. 85, No. 113 / Thursday, June 11, 2020 / Rules and Regulations
and more than 90 days have passed
since receipt of the agency final action,
the appellant may file a civil action only
in accordance with paragraph (c) or (d)
of this section.
(f) After filing a request for
reconsideration of a Commission
decision on an appeal, the complainant,
class agent, or class claimant may
withdraw the request and file a civil
action within 90 days of receipt of the
Commission’s decision on the appeal. If
the complainant, class agent, or class
claimant files a request for
reconsideration of a Commission
decision on an appeal and more than 90
days have passed since the appellant
received the Commission’s decision on
the appeal, the appellant may file a civil
action only in accordance with
paragraph (c) or (d) of this section.
(g) A complainant, class agent, or
class claimant who follows the
procedures described in paragraph (e) or
(f) of this section shall be deemed to
have exhausted his or her
administrative remedies.
■ 4. Revise § 1614.409 to read as
follows:
§ 1614.409
Effect of filing a civil action.
Filing a civil action under § 1614.407
or § 1614.408 shall terminate
Commission processing of the appeal. A
Commission decision on an appeal
issued after a complainant files suit in
district court will not be enforceable by
the Commission. If private suit is filed
subsequent to the filing of an appeal and
prior to a final Commission decision,
the complainant should notify the
Commission in writing.
§ 1614.505
[Amended]
5. In § 1614.505(a)(4), remove the
reference ‘‘(b)(2)’’ and add in its place
‘‘(a)(3).’’
■
[FR Doc. 2020–10965 Filed 6–10–20; 8:45 am]
BILLING CODE 6570–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 9
RIN 2900–AQ98
jbell on DSKJLSW7X2PROD with RULES
Extension of Veterans’ Group Life
Insurance (VGLI) Application Period in
Response to the COVID–19 Public
Health Emergency
Department of Veterans Affairs.
Interim final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is issuing this interim final
rule to extend the deadline for former
SUMMARY:
VerDate Sep<11>2014
16:20 Jun 10, 2020
Jkt 250001
members insured under
Servicemembers’ Group Life Insurance
(SGLI) to apply for Veterans’ Group Life
Insurance (VGLI) coverage following
separation from service in order to
address the inability of members
directly or indirectly affected by the
2019 Novel Coronavirus (COVID–19)
public health emergency to purchase
VGLI. This rule will be in effect for one
year.
DATES:
Effective Date: This interim final rule
is effective June 11, 2020.
Comment Date: Comments must be
received on or before July 13, 2020.
ADDRESSES: Written comments may be
submitted through https://
www.Regulations.gov; by mail or handdelivery to: Director, Office of
Regulation Policy and Management
(00REG), Department of Veterans
Affairs, 810 Vermont Ave. NW, Room
1064, Washington, DC 20420; or by fax
to (202) 273–9026. (This is not a toll-free
telephone number.) Comments should
indicate that they are submitted in
response to ‘‘AQ98(IF)—Extension of
Veterans’ Group Life Insurance (VGLI)
Application Period In Response To The
COVID–19 Public Health Emergency.’’
Copies of comments received will be
available for public inspection in the
Office of Regulation Policy and
Management, Room 1064, between the
hours of 8:00 a.m. and 4:30 p.m.,
Monday through Friday (except
holidays). Please call (202) 461–4902 for
an appointment. (This is not a toll-free
telephone number.) In addition, during
the comment period, comments may be
viewed online through the Federal
Docket Management System (FDMS) at
https://www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Paul
Weaver, Department of Veterans Affairs
Insurance Service (310/290B), 5000
Wissahickon Avenue, Philadelphia, PA
19144, (215) 842–2000, ext. 4263. (This
is not a toll-free number.)
SUPPLEMENTARY INFORMATION: The
Secretary of Veterans Affairs has
authority to prescribe regulations that
are necessary or appropriate to carry out
the laws administered by VA and that
are consistent with those laws. 38 U.S.C.
501(a). Section 1977 of title 38, United
States Code, authorizes the VGLI
program, which provides former
members separating from service with
the option of converting existing SGLI
coverage into renewable, 5-year term
group life insurance coverage in
amounts ranging from $10,000 to
$400,000 based upon the amount of
SGLI coverage. See 38 U.S.C. 1967(a),
1968(b)(1)(A), 1977(a), (b). Furthermore,
section 1977(b)(5) states that VGLI shall
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
‘‘contain such other terms and
conditions as the Secretary determines
to be reasonable and practicable which
are not specifically provided for in’’
section 1977.
Pursuant to these statutes, VA
promulgated 38 CFR 9.2, which
provides the effective dates of VGLI
coverage and application requirements.
VGLI coverage may be granted if an
application, the initial premium, and
evidence of insurability are received
within 1 year and 120 days following
termination of duty. 38 CFR 9.2(c).
Evidence of insurability is not required
during the initial 240 days following
termination of duty. Id.
On March 13, 2020, President Donald
J. Trump issued Proclamation 9994
proclaiming that the 2019 novel
Coronavirus (COVID–19) outbreak in the
United States constitutes a national
emergency beginning March 1, 2020. 85
FR 15337 (Mar. 18, 2020). Because of
mitigation strategies to flatten the curve
of infections and reduce the spread of
COVID–19, the United States economy
has been severely impacted, with
national unemployment claims reaching
historic levels. Proclamation 10014 of
April 22, 2020, 85 FR 23441 (Apr. 27,
2020); see also Executive Order on
Regulatory Relief to Support Economic
Recovery (May 19, 2020) (directing
agencies to address this economic
emergency by rescinding, modifying,
waiving, or providing exemptions from
regulations and other requirements that
may inhibit economic recovery). We
believe that, as a result of the economic
situation, former members, who
otherwise may be eligible for VGLI
coverage, currently may not be able to
afford VGLI coverage or to provide
evidence of insurability.
VA is therefore amending 38 CFR 9.2
by adding new subsection (f)(1) to
extend by 90 days the time periods
under 38 CFR 9.2(c) during which
former members may apply for VGLI .
Former members who submit a VGLI
application and the initial premium
within 330 days following separation
from service will not be required to
submit evidence of insurability. Former
members who do not apply for VGLI
within 330 days following separation
from service may still receive VGLI
coverage if they apply for the coverage
within 1 year and 210 days following
separation from service and submit the
initial premium and evidence of
insurability. These amendments will
ease the financial consequences of the
COVID–19 pandemic by extending the
time limits for former members to enroll
in VGLI, some of whom do not qualify
for a private commercial plan of
insurance due to their disabilities.
E:\FR\FM\11JNR1.SGM
11JNR1
]]>Agencies
[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Rules and Regulations]
[Pages 35558-35562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10965]
=======================================================================
-----------------------------------------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA97
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is issuing a final rule that revises its Federal sector
complaint processing regulations to address when a complainant may file
a civil action after having previously filed an administrative appeal
or request for reconsideration with the EEOC. The final rule also
contains certain editorial changes.
DATES: Effective June 11, 2020.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, (202) 663-4681, or Gary J. Hozempa, Senior Staff Attorney,
(202) 663-4666, Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission. Requests for this document in an alternative
format should be made to the EEOC's Office of Communications and
Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY).
SUPPLEMENTARY INFORMATION:
Introduction
On February 14, 2019, the EEOC published in the Federal Register a
Notice of Proposed Rulemaking (hereinafter ``NPRM'') revising primarily
29 CFR 1614.407 (which pertains to a Federal sector complainant's right
to file a civil action). 84 FR 4015 (2019). Currently, 29 CFR 1614.407
provides that an individual complainant, or a class agent or claimant,
who has filed an administrative complaint alleging a violation of
section 717 of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e-16 (hereinafter ``Title VII''); section 15 of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 633a
(hereinafter ``ADEA''); or section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 (hereinafter ``Rehabilitation Act''),
may file a civil action within 90 days of receipt of the agency final
action unless the complainant has filed an appeal with the EEOC, or 180
days after the complaint was filed if an appeal has not been filed and
agency final action has not been taken. See 29 CFR 1614.407(a) & (b).
When an appeal is filed with the EEOC, the current rule states that the
complainant may file a civil action: (1) Within 90 days of receipt of
the EEOC's final decision on the appeal; or (2) 180 days after the
filing of the appeal if the EEOC has not issued a decision within that
period. See 29 CFR 1614.407(c) & (d).
In Bullock v. Berrien, 688 F.3d 613, 618-19 (9th Cir. 2012), the
court ruled that a Federal employee who had filed an administrative
appeal with the EEOC could withdraw the appeal and file a civil action
in district court within the 90-day period following receipt of the
agency final action. The court reasoned that, because Title VII
authorizes a Federal sector complainant to file a civil action
``[w]ithin 90 days of receipt of notice of [agency] final action,'' 42
U.S.C. 2000e-16(c), a complainant is not required to file an appeal
with the EEOC before going to court. See Bullock, 688 F.3d at 618.
In accordance with Bullock, the NPRM proposed changing Sec.
1614.407 to state that a complainant may withdraw an administrative
appeal and instead file a civil action if the civil action is filed
within 90 days of receipt of the notice of agency final action. The
NPRM also proposed revising Sec. 1614.407 to state that a complainant
may withdraw a request for reconsideration and proceed to court if the
civil action is filed within 90 days of receipt of the EEOC's initial
appellate decision. The NPRM provided a 60-day comment period for the
public.
Comments Generally
The EEOC received twenty comments in response to the NPRM. Comments
were received from one agency, three organizations, three attorneys or
law firms, and thirteen individuals, some of whom identified themselves
as Federal or former Federal employees.
Of the thirteen comments submitted by individuals, four were non-
responsive, six supported the proposed
[[Page 35559]]
changes, and three individuals expressed opposition. Two organizations
and two attorneys opposed the changes proposed in the NPRM. A law firm
also disagreed with the proposed revisions and recommended an
alternative approach. The agency and one organization supported the
changes. The comments are discussed in more detail below.
Comments Supporting the NPRM
One individual argued that filing a civil action without first
having to file an appeal would be advantageous to complainants, as it
would eliminate the 180-day maximum waiting period if an appeal were
filed. Three other individuals concluded that the changes to 29 CFR
1614.407 would provide clarity to district court judges, resulting in
uniform rulings that a complainant properly is in court if a civil
action is filed within 90 days of receipt of the agency final action.
Another individual and an agency supported the proposed changes,
stating that the revisions would eliminate what they regard as a
barrier to obtaining prompt relief. The agency noted that the revisions
will affect only ``the timing of a complainant's ability to exercise
their rights; it does not affect the actual exercise of those rights.''
One organization supported the proposed changes because it
disagrees with those courts that have dismissed civil actions on the
grounds that the complainants failed to exhaust their administrative
remedies. It argued that such dismissals place an added burden on
complainants, who then must attempt to re-enter the administrative
process. It also asserted that the dismissals prevent meritorious cases
from being prosecuted, thereby depriving complainants of the relief to
which they are entitled. The organization recommended that the EEOC
further revise Sec. 1614.407 to state explicitly that a complainant
who files a civil action in a manner consistent with the proposed
changes has exhausted his or her administrative remedies.
Further, this organization proposed that the EEOC add new sections
to the regulation requiring agencies to ``give explicit notice to
complainants on how to take cases to federal district court . . .'' at
the end of the investigation, when the complainant is given a choice of
requesting a hearing before an EEOC Administrative Judge, or a final
decision by the agency. Lacking such notice, it argued, complainants
are misled into believing that one must request a hearing before being
able to proceed to court.
Comments Opposing the NPRM
One individual is opposed to the proposed revisions because she
believes the changes will encourage complainants to opt out of the
administrative process. She and an organization noted that pursuing a
civil action, in contrast to pursuing an administrative appeal, is more
formal, expensive, time consuming, and intimidating for pro se
plaintiffs. Another individual and that organization characterized the
proposed changes as an attempt by the EEOC to reduce its appellate
caseload by steering complainants into the court system.
These two commenters further asserted that the EEOC should not
change Sec. 1614.407 based solely on a ruling from a single Circuit
Court. Another individual argued that, aside from constituting the only
Circuit Court to rule that an administrative appeal is optional, the
Bullock court ruled the way it did because of the unique set of facts
before it--the plaintiff was a former EEOC employee and, in her
participation in the EEOC appellate process, she was asking the EEOC to
rule against itself. Thus, this individual does not believe Bullock
provides a convincing rationale for a rule change. Other commenters
agreed that the facts in Bullock were exceptional given that the EEOC
was the defendant. For this reason, four commenters do not believe
Bullock rests on a solid legal foundation sufficient for other Circuits
to find its reasoning persuasive. Their concern is that most of the
civil actions filed in reliance on the proposed changes to Sec.
1614.407 will result in dismissals for failure to exhaust
administrative remedies.
Two commenters additionally asserted that the proposed changes are
at odds with congressional intent, arguing that, in passing section 717
of Title VII, Congress intended complainants to receive relief
primarily through the administrative process, thus ensuring that
district courts would not be overburdened with adjudicating EEO cases.
In a similar vein, two commenters expressed concern that the EEOC has
not explained how its proposed changes would further the remedial
purposes of Title VII.
One organization expressed concern that, if the proposed changes
are made final, the Civil Division of the U.S. Department of Justice
(hereinafter ``DOJ'') will continue to argue that a civil action filed
by a complainant who also has filed an appeal is premature if it is
filed less than 181 days after the appeal. Further, with respect to the
proposed revisions to 29 CFR 1614.409 (``effect of filing a civil
action''), three commenters asked whether the effect of the change will
be that the EEOC will not enforce an appellate decision favorable to
the complainant in the event the complainant subsequently files a civil
action. One commenter recommended revising Sec. 1614.409 to state that
an agency is bound by a final action favorable to the complainant, even
if the complainant later files an appeal or a civil action.
A commenter, noting that it has represented Federal sector
complainants who have traversed what a district court called a
``Byzantine'' administrative process, opposed the proposed revisions,
but mostly on grounds different from those discussed above. It argued
that the EEOC's proposed changes to Sec. 1614.407 will render the
Federal sector administrative process even more Byzantine. This
commenter further maintained that the EEOC's proposed revisions
misinterpret section 717(c) of Title VII (which addresses a
complainant's right to file a civil action), arguing that, when a
complainant has filed an appeal with the EEOC, section 717(c) permits a
complainant to file a civil action at any time during the pendency of
the appeal, even if that means the complainant files a civil action
more than 90 days after issuance of the agency's final action. The
commenter further suggested that the Commission should revise Sec.
1614.407 to state that a complainant's withdrawal of an appeal or a
request for reconsideration constitutes a final administrative decision
that triggers the statutory 90-day period for filing a civil action.
The EEOC's Response to the Comments
As some of the comments point out, the EEOC was the defendant-
agency in Bullock. When the plaintiff initially filed her civil action,
the EEOC argued, in part, that because plaintiff had previously filed a
timely appeal with the EEOC, she had failed to exhaust her
administrative remedies. See Bullock v. Dominguez, 2010 WL 1734964, at
*2 (S.D. Cal. April 27, 2010). Relying on section 717(c) of Title VII
and 29 CFR 1614.407(c) & (d), the EEOC argued that plaintiff was
precluded from filing a civil action until after the Commission issued
a decision or 180 days had expired following the filing of her
administrative appeal. See id. The district court agreed and dismissed
plaintiff's civil action as premature. See id. at *3. Plaintiff
appealed to the Ninth Circuit.
In its initial appellate brief, the EEOC reiterated its position
that the plaintiff had failed to exhaust her administrative
[[Page 35560]]
remedies. See Bullock, 688 F.3d at 615. The Ninth Circuit asked for a
supplemental briefing, directing the parties to discuss the Ninth
Circuit's decision in Bankston v. White, 345 F.3d 768 (9th Cir. 2003).
See Bullock, 688 F.3d at 615.\1\ In its supplemental brief, the EEOC
asserted that Bankston need not be confined to the ADEA context because
the EEOC's regulations addressing administrative appeals applied to
Title VII, Rehabilitation Act, and ADEA claims equally. See Bullock,
688 F.3d at 618. The EEOC thus argued that the plaintiff in Bullock had
exhausted her administrative remedies and the Ninth Circuit agreed. See
id., 688 F.3d at 615.
---------------------------------------------------------------------------
\1\ In Bankston, the Ninth Circuit held that the plaintiff, who
had filed an appeal with the Merit Systems Protection Board
concerning his ADEA claim against the Occupational Safety and Health
Administration, was not required to see his appeal through to
completion or until the lapse of the requisite waiting period, but
instead could withdraw his appeal and proceed directly to court. See
Bankston, 345 F.3d at 776-77.
---------------------------------------------------------------------------
Thereafter, the EEOC reassessed 29 CFR 1614.407 in light of
Bullock, and concluded that an appeal to the EEOC is an optional
administrative step that a complainant need not take in order to
exhaust administrative remedies. The EEOC published the NPRM in
accordance with its revised view of the exhaustion issue. Having
considered the comments, the EEOC has decided to issue this final rule
making only slight changes to the NPRM, as explained below.
The EEOC disagrees that the revised Sec. 1614.407 will encourage
complainants to opt out of the administrative process. Nor is it the
EEOC's intent to route complainants to state or Federal court.
Assuming, as some have suggested, that pursuing a civil action is more
formal and expensive than pursuing an administrative appeal, and more
difficult for a pro se plaintiff to navigate, these factors will
discourage most complainants from opting out of the administrative
process. Nevertheless, we believe there is a small percentage of
complainants who prefer to pursue their claims in court. The EEOC
revised Sec. 1614.407 with these complainants in mind.
When a complainant requests a final decision following the
completion of an investigation or fails to reply to the notice that the
complainant must request a hearing or a final agency decision, the
agency must take final action by issuing a final decision. See 29 CFR
1614.110(b). If the complainant requests a hearing, the agency must
take final action by issuing an order notifying the complainant whether
the agency will fully implement the decision of the Administrative
Judge. See id., Sec. 1614.110(a). In both situations, the agency's
final action must contain a notice informing the complainant of, among
other things, his or her right to file an appeal with the EEOC or a
civil action in Federal district court. See id., Sec. 1614.110(a) &
(b). An appeal to the EEOC must be filed within 30 days of receipt of
the agency's final action. See id., Sec. 1614.402(a). Under the
current rule, a civil action must be filed within 90 days of receipt of
the agency's final action ``if no appeal has been filed.'' Id., Sec.
1614.407(a).
Because a complainant must decide whether to file an appeal within
30 days, the effect of the current regulation is to cause a complainant
to decide whether to file a civil action within that same 30-day
period, since the current rule allows a complainant to file a civil
action only ``if no appeal has been filed.'' Therefore, in practice,
the current rule reduces the statutory 90-day time period in which a
complainant may file a civil action to 30 days. The revised rule, on
the other hand, will afford the complainant the full 90-day statutory
period in which to decide whether to go to court, since the complainant
will not forfeit that right if he or she, being undecided, timely files
an administrative appeal. The Commission believes that giving a
complainant the full 90-day period in which to decide whether to go to
court advances, rather than impedes, the remedial purposes of the EEO
statutes, and preserves all avenues of recourse a complainant is
entitled to pursue.
The EEOC also disagrees with the commenters arguing that the EEOC's
reliance on Bullock to support its revisions as set forth in the NPRM
will lead to inconsistencies among the courts regarding the exhaustion
issue. As some comments accurately state, there have been courts
outside the Ninth Circuit that have held that a complainant who
withdraws an appeal and files a civil action less than 180 days after
filing an appeal has failed to exhaust administrative remedies. The
EEOC has examined these decisions and each court rests its ruling upon
section 717(c) of Title VII and the EEOC's current Sec. 1614.407.
The EEOC anticipates that these same courts, as well as others,
will show deference to the revised Sec. 1614.407 when presented with a
plaintiff who has withdrawn an appeal and filed a civil action within
90 days of receipt of the agency's final action. In this regard, while
section 717(c) explicitly sets forth when a complainant's right to file
a civil action accrues, it is less clear about when exhaustion of
administrative remedies occurs. While section 717(c) allows a
complainant to appeal an agency's final action to the EEOC, nothing
contained in that section requires that the complainant file an appeal.
Given that section 717(c) specifies that a complainant can file a civil
action ``[w]ithin 90 days of receipt of notice of final action taken by
a[n] . . . agency . . . ,'' section 717(c) cannot be read as creating
an exhaustion requirement that a complainant must file an appeal before
proceeding in court. Thus, it is the EEOC's position that filing an
appeal is an optional, rather than mandatory, administrative step, and
that a complainant who initially files an appeal in accordance with the
30-day regulatory deadline may withdraw the appeal and go to court so
long as the complainant does so within 90 days of receipt of the
agency's final action.
The Commission thus finds merit in one organization's suggestion
that a paragraph be added to Sec. 1614.407 stating that a complainant
who withdraws an appeal or a request for reconsideration within 90 days
of receipt of the agency final action has exhausted his or her
administrative remedies. The final rule thus adds a paragraph (g) to
Sec. 1614.407 stating that a complainant, class agent, or class
claimant who withdraws an appeal or a request for reconsideration and
files a civil action within 90 days of receipt of the applicable final
action shall be deemed to have exhausted his or her administrative
remedies. The Commission finds, however, that the notice requirement
suggested by the same commenter is beyond the scope of the NPRM.
Some commenters expressed apprehension that DOJ's Civil Division
will not agree with the Commission's revision to Sec. 1614.407,
arguing that the Civil Division will seek dismissal of a civil action
as premature when filed by a complainant who withdraws an appeal within
90 days of receipt of the agency's final action. Relatedly, one
commenter argued that the EEOC's proposed rule should not limit a
complainant's right to go to court to the 90-day period following
receipt of the agency final action.
Before the EEOC issued the NPRM for public comment, it was
circulated to all Federal agencies pursuant to Executive Order 12067.
See 84 FR at 4016. Section 1614.407 as it appeared in the draft NPRM
circulated to the agencies did not mention a 90-day window in which an
appeal could be withdrawn and a civil action filed. Most agencies
objected to this omission, stating that the rule as
[[Page 35561]]
drafted could be read as allowing a complainant to withdraw an appeal
any time after it was filed and instead go to court. The agencies
suggested that the revised rule should limit the withdrawal period to
the 90-day period following receipt of the agency final action,
consistent with the ruling in Bullock. See 84 FR at 4016. Most
agencies, including DOJ, stated they could support the NPRM if the EEOC
revised Sec. 1614.407 as suggested. Thus, before issuing the NPRM for
public comment, the EEOC included the 90-day window for filing a civil
action, consistent with the agencies' comments. See 84 FR at 4017. In
light of the agency comments, the EEOC is confident that DOJ will not
seek to dismiss a civil action that is filed within 90 days of the
plaintiff's receipt of an agency final action, even if the plaintiff
previously filed and withdrew an appeal or a request for
reconsideration. With the agency comments in mind, the EEOC declines to
follow the suggestion of the one commenter that the right to file a
civil action not be limited to the 90-day period following receipt of
the agency final action.
Finally, with respect to the revisions made to Sec. 1614.409, it
has been the long-standing practice of the Commission to cease
processing an appeal when the Commission learns that the complainant
has filed a civil action. This practice is based on the EEOC's position
that a judicial adjudication of a plaintiff's EEO complaint supersedes
an administrative decision addressing the same matter, regardless of
the outcome of the decisions. The revisions to Sec. 1614.409 reaffirm
this long-standing position. Moreover, the EEOC often is not made aware
of the fact that a complainant has filed a civil action, resulting in
the Commission issuing a decision on an appeal it should have
terminated under current Sec. 1614.409. The Commission believes it is
necessary to revise Sec. 1614.409 to state that the Commission will
not enforce a decision it issues after the complainant has gone to
court since the Commission would not have issued the decision had it
known the complainant had filed a civil action. This is why revised
Sec. 1614.409 encourages complainants to notify the EEOC when the
complainant goes to court, so as to enable the EEOC to conserve
resources and avoid issuing decisions that are null and void.
Regulatory Procedures
Executive Order 12866
The Commission has complied with the principles in section 1(b) of
Executive Order 12866, Regulatory Planning and Review. This rule is not
a ``significant regulatory action'' under section 3(f) of the order,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of the order.
Executive Order 13771
This rule is not subject to Executive Order 13771, Reducing
Regulation and Controlling Regulatory Cost. Pursuant to guidance issued
by the Office of Management and Budget's Office of Information and
Regulatory Affairs (April 5, 2017), an ``E.O. 13771 regulatory action''
is defined as ``[a] significant regulatory action as defined in Section
3(f) of E.O. 12866 . . . .'' As noted above, this rule is not a
significant regulatory action under section 3(f) of E.O. 12866. Thus,
this rule does not require the EEOC to issue two E.O. 13771
deregulatory actions.
Paperwork Reduction Act
This rule contains no new information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities because it applies exclusively to employees and agencies of
the Federal Government and does not impose a burden on any business
entities. For this reason, a regulatory flexibility analysis is not
required.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This rule does not substantially affect the rights or obligations
of non-agency parties and, accordingly, is not a ``rule'' as that term
is used by the Congressional Review Act (Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996). Therefore, the
reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission,
Janet L. Dhillon,
Chair.
Accordingly, for the reasons set forth in the preamble, the Equal
Employment Opportunity Commission amends chapter XIV of title 29 of the
Code of Federal Regulations as follows:
PART 1614--[AMENDED]
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1. The authority citation for 29 CFR part 1614 continues to read as
follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.
Sec. 1614.201 [Amended]
0
2. In Sec. 1614.201, remove paragraph (c).
0
3. In Sec. 1614.407:
0
a. Revise the section heading.
0
b. In the introductory text, remove the word ``and'' after ``ADEA'' and
add in its place a comma and add the words ``, and Genetic Information
Nondiscrimination Act'' after ``Rehabilitation Act.''
0
c. Revise paragraphs (a) and (b).
0
d. Add paragraphs (e), (f), and (g).
The revisions and additions read as follows:
Sec. 1614.407 Civil action: Title VII, Age Discrimination in
Employment Act, Rehabilitation Act, and Genetic Information
Nondiscrimination Act.
* * * * *
(a) Within 90 days of receipt of the agency final action on an
individual or class complaint;
(b) After 180 days from the date of filing an individual or class
complaint if agency final action has not been taken;
* * * * *
(e) After filing an appeal with the Commission from an agency final
action, the complainant, class agent, or class claimant may withdraw
the appeal and file a civil action within 90 days of receipt of the
agency final action. If the complainant, class agent, or class claimant
files an appeal with the Commission from a final agency action
[[Page 35562]]
and more than 90 days have passed since receipt of the agency final
action, the appellant may file a civil action only in accordance with
paragraph (c) or (d) of this section.
(f) After filing a request for reconsideration of a Commission
decision on an appeal, the complainant, class agent, or class claimant
may withdraw the request and file a civil action within 90 days of
receipt of the Commission's decision on the appeal. If the complainant,
class agent, or class claimant files a request for reconsideration of a
Commission decision on an appeal and more than 90 days have passed
since the appellant received the Commission's decision on the appeal,
the appellant may file a civil action only in accordance with paragraph
(c) or (d) of this section.
(g) A complainant, class agent, or class claimant who follows the
procedures described in paragraph (e) or (f) of this section shall be
deemed to have exhausted his or her administrative remedies.
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4. Revise Sec. 1614.409 to read as follows:
Sec. 1614.409 Effect of filing a civil action.
Filing a civil action under Sec. 1614.407 or Sec. 1614.408 shall
terminate Commission processing of the appeal. A Commission decision on
an appeal issued after a complainant files suit in district court will
not be enforceable by the Commission. If private suit is filed
subsequent to the filing of an appeal and prior to a final Commission
decision, the complainant should notify the Commission in writing.
Sec. 1614.505 [Amended]
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5. In Sec. 1614.505(a)(4), remove the reference ``(b)(2)'' and add in
its place ``(a)(3).''
[FR Doc. 2020-10965 Filed 6-10-20; 8:45 am]
BILLING CODE 6570-01-P
