Appellate Jurisdiction Update, 24681 [2024-07191]

Agencies

• Merit Systems Protection Board

[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Page 24681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07191]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules 
and Regulations

[[Page 24681]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Appellate Jurisdiction Update

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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SUMMARY: This final rule updates the list of sources from which the 
Merit Systems Protection Board (MSPB) derives appellate jurisdiction.

DATES: Effective May 9, 2024.

FOR FURTHER INFORMATION CONTACT: Gina K. Grippando, 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: [email protected].

SUPPLEMENTARY INFORMATION: On February 6, 2024, the Merit Systems 
Protection Board (MSPB or Board) proposed an amendment to 5 CFR 1201.3, 
which sets forth a non-exclusive list of the types of appeals within 
the MSPB's jurisdiction. 89 FR 8083. In response to publication of the 
proposed rule, the MSPB received three comments from three commenters. 
The comments received by the MSPB are available for review by the 
public at https://www.mspb.gov/foia/e-foiareadingroom.htm.

Comments and Summary of Changes to the Proposed Rule

    The MSPB initially proposed amending 5 CFR 1201.3 to include a new 
type of appeal proposed by the Office of Personnel Management (OPM) at 
5 CFR 302.603. 89 FR 8083. OPM's proposed rule provided that certain 
Federal employees moved from the competitive service into the excepted 
service, or moved between schedules in the excepted service, would have 
a right to appeal to the MSPB any purported loss of civil service 
protections stemming from that move. 88 FR 63862.
    OPM's Final Rule for 5 CFR 302.603, published elsewhere in this 
issue of the Federal Register, adjusted the language of the proposed 
regulation providing the appeal right. Generally, OPM's final rule at 
section 302.603 permits an appeal for: (1) an agency's assertion that a 
Federal employee moved from the competitive service into the excepted 
service, or moved between schedules in the excepted service, would lose 
appeal rights, competitive status, or other previously accrued 
protections as a result of that move; and (2) an agency's failure to 
provide required notice to the employee regarding whether the move 
would affect the employee's appeal rights, competitive status, or other 
accrued protections. An appeal arising under the first part of this 
regulation would request that the MSPB correct the assertion from the 
agency regarding the individual's alleged loss of appeal rights, 
competitive status, or other accrued protections, stemming from the 
move and direct the agency to afford such rights, status, and 
protections to the employee in subsequent actions under chapters 43 or 
75 of title 5, United States Code, except to the extent that any such 
order would be inconsistent with an applicable statute. An appeal 
arising under the second part of this regulation would request that the 
MSPB order the employee's agency to issue the required notice regarding 
the asserted effect of the move. The MSPB has thus adjusted the 
language of its proposed rule implementing OPM's rule to accord with 
OPM's revisions.
    Additionally, the MSPB received three comments from three 
commenters in response to its proposed rulemaking. Two of the 
commenters did not provide any substantive comment on the MSPB's 
proposal, but indicated general approval of the proposal. The third 
commenter also expressed support for the MSPB's original proposal, but 
further suggested that the MSPB clarify its proposal to include all of 
the types of appeals provided by OPM in its proposed 5 CFR 302.603. 
OPM's proposed rule provided not only appeals when individuals were 
involuntarily moved, but also appeals when individuals believed that 
their facially voluntary moves were coerced or otherwise involuntary. 
The MSPB agrees with the commenter's suggestion and has reformulated 
its draft rule to more clearly reflect all of the types of appeals 
provided in OPM's final 5 CFR 302.603.
    This final rule will become effective 30 days after publication in 
the Federal Register.

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    For the reasons set forth above, 5 CFR part 1201 is amended as 
follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for 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.


Sec.  1201.3  [Amended]

0
2. Section 1201.3 is amended by adding paragraph (a)(12) to read as 
follows:


Sec.  1201.3  Appellate Jurisdiction.

    (a) * * *
    (12) Actions Related to Placement or Movement into an Excepted 
Service Position Without Civil Service Protections. (i) An agency 
assertion that an involuntary (including a facially voluntary, but 
alleged to be involuntary) movement or placement of a competitive 
service employee into the excepted service, will eliminate competitive 
status or any other procedural and appeal rights that the employee had 
previously accrued. (5 CFR 302.603(b); 5 CFR 302.603(d));
    (ii) An agency assertion that an involuntary (including a facially 
voluntary, but alleged to be involuntary) movement or placement of an 
excepted service employee into a different schedule of the excepted 
service, will eliminate competitive status or any other procedural and 
appeal rights that the employee had previously accrued. (5 CFR 
302.603(b); 5 CFR 302.603(d));
    (iii) An agency's failure to provide the required notice, under 5 
CFR 302.602(c)(1), of the effect of the above-described movements or 
placements on the employee's status or procedural and appeal rights. (5 
CFR 302.603(c)).
* * * * *

Gina K. Grippando,
Clerk of the Board.
[FR Doc. 2024-07191 Filed 4-4-24; 8:45 am]
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