[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1209]

[Page 87-91]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING

                 Subpart A--Jurisdiction and Definitions

Sec.
1209.1  Scope.
1209.2  Jurisdiction.
1209.3  Application of 5 CFR part 1201.
1209.4  Definitions.

                           Subpart B--Appeals

1209.5  Time of filing.
1209.6  Content of appeal; right to hearing.
1209.7  Burden and degree of proof.

                        Subpart C--Stay Requests

1209.8  Filing a request for a stay.
1209.9  Content of stay request and response.
1209.10  Hearing and order ruling on stay request.
1209.11  Duration of stay; interim compliance.

            Subpart D--Reports on Applications for Transfers

1209.12  Filing of agency reports.

               Subpart E--Referrals to the Special Counsel

Sec. 1209.13  Referral of findings to the Special Counsel.

    Authority: 5 U.S.C. 1204, 1221, 2302(b)(8), and 7701.

    Source: 55 FR 28592, July 12, 1990, unless otherwise noted.

                 Subpart A--Jurisdiction and Definitions

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 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 activities, 
and requests for stays of personnel actions allegedly based on 
whistleblowing.

Sec. 1209.2  Jurisdiction.

    (a) Under 5 U.S.C. 1214(a)(3), 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 activities.
    (b) The Board exercises jurisdiction over:
    (1) Individual right of action appeals. These are authorized by 5 
U.S.C. 1221(a) with respect to personnel actions listed in 
Sec. 1209.4(a) of this part that are allegedly threatened, proposed, 
taken, or not taken because of the appellant's whistleblowing 
activities. 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: Agency A gives Mr. X a performance evaluation under 5 
U.S.C. chapter 43 that rates him as ``minimally satisfactory.'' Mr. X 
believes that the agency has rated him ``minimally satisfactory'' 
because of his whistleblowing activities. Because a performance 
evaluation is not an otherwise appealable action, Mr. X must seek 
corrective action from the Special Counsel before appealing to the Board 
or before seeking a stay of the evaluation. If Mr. X appeals the 
evaluation to the Board after the Special Counsel proceeding is 
terminated or exhausted, his appeal is an individual right of action 
appeal.

    (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 activities. The appellant may choose either to seek 
corrective action from the Special Counsel before appealing to the Board 
or to appeal directly to the Board. (Examples of such otherwise 
appealable actions are listed in 5 CFR 1201.3 (a)(1) through (a)(19).)
    Example: Agency B removes Ms. Y for alleged misconduct under 5 
U.S.C. 7513. Ms. Y believes that the agency removed her because of her 
whistleblowing activities. Because the removal action is appealable to 
the Board under some law, rule or regulation

[[Page 88]]

other than 5 U.S.C. 1221(a), Ms. Y may choose to file an appeal with the 
Board without first seeking corrective action from the Special Counsel 
or to seek corrective action from the Special Counsel and then appeal to 
the Board.

    (3) Stays. Where the appellant alleges that a personnel action was 
or will be based on whistleblowing, the Board may, upon the appellant's 
request, order an agency to suspend that action.

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 and 
consequential damages under 5 U.S.C. 1221(g) to appeals governed by this 
part.

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]

Sec. 1209.4  Definitions.

    (a) Personnel action means, as to individuals and agencies covered 
by 5 U.S.C. 2302:
    (1) An appointment;
    (2) A promotion;
    (3) An adverse action under chapter 75 of title 5, United States 
Code or other disciplinary or corrective action;
    (4) A detail, transfer, or reassignment;
    (5) A reinstatement;
    (6) A restoration;
    (7) A reemployment;
    (8) A performance evaluation under chapter 43 of title 5, United 
States Code;
    (9) A decision concerning pay, benefits, or awards, or concerning 
education or training if the education or training may reasonably be 
expected to lead to an appointment, promotion, performance evaluation, 
or other personnel action;
    (10) A decision to order psychiatric testing or examination; or
    (11) Any other significant change in duties, responsibilities, or 
working conditions.
    (b) Whistleblowing is the disclosure of information by an employee, 
former employee, or applicant that the individual reasonably believes 
evidences a violation of law, rule, or regulation, gross mismanagement, 
gross waste of funds, abuse of authority, or substantial and specific 
danger to public health or safety. It does not include a disclosure 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 the Special Counsel, the 
Inspector General of an agency, or an employee designated by the head of 
the agency to receive it.
    (c) Contributing factor means any disclosure that affects an 
agency's decision to threaten, propose, take, or not take a personnel 
action with respect to the individual making the disclosure.
    (d) Clear and convincing evidence is that measure or degree of proof 
that produces in the mind of the trier of fact a firm belief as to the 
allegations sought to be established. It is a higher standard than 
``preponderance of the evidence'' as defined in 5 CFR 1201.56(c)(2).

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997]

                           Subpart B--Appeals

Sec. 1209.5  Time of filing.

    (a) Individual right of action appeals. The appellant must seek 
corrective action from the Special Counsel before appealing to the 
Board. Where the appellant has sought corrective action, the time limit 
for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). 
Under that section, an appeal must be filed:
    (1) No later than 65 days after the date of issuance of the Office 
of Special Counsel's written notification to the appellant that it was 
terminating its investigation of the appellant's allegations or, if the 
appellant shows that the Special Counsel's notification was received 
more than 5 days after the date of issuance, within 60 days after the 
date the appellant received the Special Counsel's notification; or,
    (2) If the Office of Special Counsel has not notified the appellant 
that it will seek corrective action on the appellant's behalf within 120 
days of the

[[Page 89]]

date of filing of the request for corrective action, at any time after 
the expiration of 120 days.
    (b) Otherwise appealable action appeals. The appellant may choose 
either to seek corrective action from the Special Counsel before 
appealing to the Board or to file the appeal directly with the Board. If 
the appellant seeks corrective action from the Special Counsel, the time 
limit for appealing is governed by paragraph (a) of this section. If the 
appellant appeals directly to the Board, the time limit for filing is 
governed by 5 CFR 1201.22(b).
    (c) Appeals after a stay request. Where an appellant has filed a 
request for a stay with the Board without first filing an appeal of the 
action, the appeal must be filed within 30 days after the date the 
appellant receives the order ruling on the stay request. Failure to 
timely file the appeal will result in the termination of any stay that 
has been granted unless a good reason for the delay is shown.

[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 
62 FR 59993, Nov. 6, 1997]

Sec. 1209.6  Content of appeal; right to hearing.

    (a) Content. Only an appellant, his or her designated 
representative, or a party properly substituted under 5 CFR 1201.35 may 
file an appeal. Appeals may be in any format, including letter form, but 
must contain the following:
    (1) The nine (9) items or types of information required in 5 CFR 
1201.24 (a)(1) through (a)(9);
    (2) Where the appellant first sought corrective action from the 
Special Counsel, evidence that the appeal is timely filed;
    (3) The name(s) and position(s) held by the employee(s) who took the 
action(s), and a chronology of facts concerning the action(s);
    (4) A description of each disclosure evidencing whistleblowing as 
defined in Sec. 1209.4(b) of this part; and
    (5) Evidence or argument that:
    (i) The appellant was or will be subject to a personnel action as 
defined in Sec. 1209.4(a) of this part, or that the agency has 
threatened to take or not to take such a personnel action, together with 
specific indications giving rise to the appellant's apprehensions; and
    (ii) The personnel action was or will be based wholly or in part on 
the whistleblowing disclosure, as described in Sec. 1209.4(b) of this 
part.
    (6) An appellant who first sought corrective action from the Special 
Counsel may satisfy the requirements of paragraphs (a)(3) through (a)(5) 
of this section by filing with the appeal a copy of Part 2: Reprisal For 
Whistleblowing of the complaint form submitted to the Office of Special 
Counsel (Form OSC-11, Complaint of Possible Prohibited Personnel 
Practice or Other Prohibited Activity, Rev. 8/00), together with a copy 
of any continuation sheet with answers to Part 2 questions filed with 
the Office of Special Counsel, and any supplement to Part 2 of the 
original complaint filed with the Office of Special Counsel or completed 
by the Office of Special Counsel and furnished to the appellant.
    (b) Right to hearing. An appellant has a right to a hearing.
    (c) Timely request. The appellant must submit any request for a 
hearing with the appeal, or within any other time period the judge sets 
for that purpose. If the appellant does not make a timely request for a 
hearing, the right to a hearing is waived.

[55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000]

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), the Board will order appropriate corrective 
action if the appellant shows by a preponderance of the evidence that a 
disclosure described under 5 U.S.C. 2302(b)(8) 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.

[[Page 90]]

                        Subpart C--Stay Requests

Sec. 1209.8  Filing a request for a stay.

    (a) Time of filing. An appellant may request a stay of a personnel 
action allegedly based on whistleblowing at any time after the appellant 
becomes eligible to file an appeal with the Board under Sec. 1209.5 of 
this part, but no later than the time limit set for the close of 
discovery in the appeal. It may be filed prior to, simultaneous with, or 
after the filing of an appeal.
    (b) Place of filing. Requests must be filed with the appropriate 
Board regional or field office as set forth in 5 CFR 1201.4(d).
    (c) Service of stay request. A stay request must be simultaneously 
served upon the Board's regional or field office and upon the agency's 
local servicing personnel office or the agency's designated 
representative, if any. A certificate of service stating how and when 
service was made must accompany the stay request.
    (d) Method of filing. A stay request must be filed with the 
appropriate Board regional or field office by personal delivery, by 
facsimile, by mail, or by commercial overnight delivery.

[55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 
FR 65243, Dec. 19, 1994]

Sec. 1209.9  Content of stay request and response.

    (a) Only an appellant, his or her designated representative, or a 
party properly substituted under 5 CFR 1201.35 may file a stay request. 
The request may be in any format, and must contain the following:
    (1) The name, address, and telephone number of the appellant, and 
the name and address of the acting agency;
    (2) The name, address, and telephone number of the appellant's 
representative, if any;
    (3) The signature of the appellant or, if the appellant has a 
representative, of the representative;
    (4) A chronology of facts, including a description of the 
appellant's disclosure and the action that the agency has taken or 
intends to take;
    (5) Where the appellant first sought corrective action from the 
Special Counsel, evidence that the stay request is timely filed;
    (6) Evidence and/or argument showing that:
    (i) The action threatened, proposed, taken, or not taken is a 
personnel action, as defined in Sec. 1209.4(a) of this part;
    (ii) The action complained of was based on whistleblowing, as 
defined in Sec. 1209.4(b) of this part; and
    (iii) There is a substantial likelihood that the appellant will 
prevail on the merits of the appeal;
    (7) Evidence and/or argument addressing how long the stay should 
remain in effect; and
    (8) Any documentary evidence that supports the stay request.
    (b) An appellant may provide evidence and/or argument addressing the 
question of whether a stay would impose extreme hardship on the agency.
    (c) Agency response. (1) The agency's response to the stay request 
must be received by the appropriate Board regional or field office 
within five days (excluding Saturdays, Sundays, and Federal holidays) of 
the date of service of the stay request on the agency.
    (2) The agency's response must contain the following:
    (i) Evidence and/or argument addressing whether there is a 
substantial likelihood that the appellant will prevail on the merits of 
the appeal;
    (ii) Evidence and/or argument addressing whether the grant of a stay 
would result in extreme hardship to the agency; and
    (iii) Any documentation relevant to the agency's position on these 
issues.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]

Sec. 1209.10  Hearing and order ruling on stay request.

    (a) Hearing. The judge may hold a hearing on the stay request.
    (b) Order ruling on stay request. (1) The judge must rule upon the 
stay request within 10 days (excluding Saturdays, Sundays, and Federal 
holidays) after the request is received by the appropriate Board 
regional or field office.
    (2) The judge's ruling on the stay request must set forth the 
factual and legal bases for the decision. The judge

[[Page 91]]

must decide whether there is a substantial likelihood that the appellant 
will prevail on the merits of the appeal, and whether the stay would 
result in extreme hardship to the agency.
    (3) If the judge grants a stay, the order must specify the effective 
date and duration of the stay.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]

Sec. 1209.11  Duration of stay; interim compliance.

    (a) Duration of stay. A stay becomes effective on the date specified 
in the judge's order. The stay will remain in effect for the time period 
set forth in the order or until the Board issues a final decision on the 
appeal of the underlying personnel action that was stayed, or until the 
Board vacates or modifies the stay, whichever occurs first.
    (b) Interim compliance. An agency must immediately comply with an 
order granting a stay request. Although the order granting a stay 
request is not a final order, petitions for enforcement of such orders 
are governed by 5 CFR part 1201, subpart F.

            Subpart D--Reports on Applications for Transfers

Sec. 1209.12  Filing of agency reports.

    When an employee who has applied for a transfer to another position 
in an Executive agency under 5 U.S.C. 3352 asks the agency head to 
review a rejection of his or her application for transfer, the agency 
head must complete the review and provide a written statement of 
findings to the employee and the Clerk of the Board within 30 days after 
receiving the request.

               Subpart E--Referrals to the Special Counsel

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), the 
Board will refer the matter to the Special Counsel to investigate and 
take appropriate action under 5 U.S.C. 1215.

[62 FR 17048, Apr. 9, 1997]