5 C.F.R. PART 1201
Authority: 5 U.S.C. 1204 and 7701 unless otherwise noted.
Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted. Updated from 1998 CFR by GAO, and supplemental Federal
Register issuances.
We are not responsible for any errors. Please confirm that there have been no revisions before you rely on this document.
Sec. 1201.31 Representatives
Sec. 1201.32 Witnesses; right to representation
Sec. 1201.33 Federal Witnesses
Sec. 1201.34 Intervenors and amicus curiae
Sec. 1201.35 Substituting Parties
Sec. 1201.36 Consolidating and joining appeals
Sec. 1201.37 Fees
Sec. 1201.41 Judges
Sec. 1201.42 Disqualifying a Judge
Sec. 1201.43 Sanctions
Sec. 1201.51 Scheduling the hearing
Sec. 1201.52 Public Hearings
Sec 1201.53 Verbatim record
Sec.1201.54 Official record
Sec.1201.55 Motions
Sec 1201.56 Burden and degree of proof; affirmative defenses
Sec. 1201.57 Order of hearing
Sec.1201.58 Closing the record
Sec. 1201.61 Exclusion of evidence and testimony
Sec. 1201.62 Producing prior statement
Sec. 1201.63 Stipulations
Sec. 1201.64 Official notice
Sec. 1201.71 Purpose of discovery
Sec. 1201.72 Explanation and scope of discovery
Sec. 1201.73 Discovery procedures
Sec. 1201.74 Orders for discovery
Sec. 1201.75 Taking depositions
Sec. 1201.81 Requests for supeonas
Sec. 1201.82 Motions to quash subpoenas
Sec. 1201.83 Serving subpoenas
Sec. 1201.84 Proof of service
Sec. 1201.85 Enforcing subpeonas
Sec. 1201.91 Explanation
Sec. 1201.92 Criteria for certifying interlocutory appeals
Sec. 1201.93 Procedures
Sec. 1201.101 Explanation and definitions
Sec. 1201.102 Prohibition on ex parte communications
Sec. 1201.103 Placing communications in the record; sanctions
Sec. 1201.111 Initial decision by judge
Sec. 1201.112 Jurisdiction of judge
Sec. 1201.113 Finality of decision
Sec. 1201.201 Statement of purpose.
Sec. 1201.202 Authority for awards.
Sec. 1201.203 Proceedings for attorney fees.
Sec. 1201.204 Proceedings for consequential damages and compensatory damages.
Sec. 1201.205 Judicial review.
The Board has two types of jurisdiction, original and appellate.
The Board's original jurisdiction includes the following cases:
(a) Generally. The Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule, or regulation. These include appeals from the following actions:
(9) Termination of appointment during a managerial or supervisory probationary period when the employee alleges discrimination because of partisan political affiliation or marital status (5 CFR 315.908(b));
(10) Separation, demotion, or furlough for more than 30 days, when the action was effected because of a reduction in force (5 CFR 351.901);
(11) Furlough of a career appointee in the Senior Executive Service (5 CFR 359.805);
(12) (12) Failure to restore, improper restoration of, or failure to return following a leave of absence an employee or former employee of an agency in the executive branch (including the U.S. Postal Service and the Postal Rate Commission) following partial or full recovery from a compensable injury (5 CFR 353.304);
(13) Employment of another applicant when the person who wishes to appeal to the Board is entitled to priority employment consideration after a reduction-in-force action, or after partial or full recovery from a compensable injury (5 CFR 302.501, 5 CFR 330.209);
(14) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);
(15) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209);
(16) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313);
(17) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707);
(18) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807);
(19) Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104); and
(20) Removal of a career appointee from the Senior Executive Service for failure to be recertified (5 U.S.C. 3592(a)(3), 5 CFR 359.304).
(21) Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (Pub.
L. 103-236, Sec. 181(a)(2), to be codified at 22 U.S.C. 4011).
(22) Non-compliance by a Federal executive agency employer or the Office of Personnel Management with the provisions
of chapter 43 of title 38 of the United States Code relating to the employment or reemployment rights or benefits
to which a person is entitled after service in the uniformed services (38 U.S.C. 4324, 5 CFR 353.211), excluding
any action related to benefits to be provided under the Thrift Savings Plan under title 5 of the United States
Code (38 U.S.C. 4322(f)).
(b) Appeals involving an allegation that the action was based on appellant's "whistleblowing." 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" [a violation of the prohibited personnel practice described in 5 U.S.C. 2302(b)(8)), 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 and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.
(c) Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures:
(a) Judge. Any person authorized by the Board to hold a hearing or to decide a case without a hearing, including
an attorney-examiner, an administrative judge, an administrative law judge, the Board, or any member of the Board.
(b) Pleading. Written submission setting out claims, allegations, arguments, or evidence. Pleadings include briefs, motions, petitions, attachments, and responses.
(c) Motion . A request that a judge take a particular action.
(d) Appropriate regional or field office . The regional or field office of the Board that has jurisdiction over the area where the appellant's duty station was located when the agency took the action. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits, and appeals of adverse suitability determinations under 5 CFR Part 731, must be filed with the regional or field office that has jurisdiction over the area where the appellant lives. Appendix II of these regulations lists the geographic areas over which each of the Board's regional and field offices has jurisdiction. Appeals, however, may be transferred from one regional or field office to another.
(e) Party. A person, an agency, or an intervenor, who is participating in a Board proceeding. This term applies to the Office of Personnel Management and to the Office of Special Counsel when those organizations are participating in a Board proceeding.
(f) Appeal. A request for review of an agency action.
(g) Petition for review. A request for review of an initial decision of a judge.
(h) Day. Calendar day.
(i) Service. The process of furnishing a copy of any pleading to Board officials, other parties, or both, either by mail, by facsimile, by personal delivery, or by commercial overnight delivery.
(j) Date of service. The date on which documents are served on other parties.
(k) Certificate of Service. A document certifying that a party has served copies of pleadings on the other parties.
(l) Date of filing. A document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial overnight delivery is the date the document was delivered to the commercial overnight delivery service.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, 1994]
The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in Sec. 1201.13. The regulations in this subpart apply also to appellate proceedings and stay requests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board's policy that these rules will be applied in a manner that expedites the processing of each case, with due regard to the rights of all parties.
The Board may revoke, amend, or waive any of these regulations.A judge may, for good cause shown, waive a Board regulation unless a statute requires application of the regulation. The judge must give notice of the waiver to all parties, but is not required to give the parties an opportunity to respond.
Appeals by Board employees will be filed with the Clerk of the Board and will be assigned to an administrative law judge for adjudication under this subchapter. The Board's policy is to insulate the adjudication of its own employees' appeals from agency involvement as much as possible. Accordingly, the Board will not disturb initial decisions in those cases unless the party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge or a clear error of law. In addition, the Board, as a matter of policy, will not rule on any interlocutory appeals or motions to disqualify the administrative law judge assigned to those cases until the initial decision has been issued.
When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following:
(a) Place of filing. Appeals, and responses to those appeals, must be filed with the appropriate Board regional or field office. See Sec. 1201.4(d) of this part.
(b) Time of filing.
(1) Except as provided in paragraph (b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency’s decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days—for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board’s acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part.
(2) (i) Where a person alleges non-compliance with the provisions of chapter 43 of title 38 of the United States Code relating to the employment or reemployment rights or benefits to which a person is entitled after service in the uniformed services (see paragraph (a)(22) of Sec. 1201.3 of this part), he or she may file an appeal directly with the Board within 180 days after the alleged act or incidence of non-compliance.
(ii) Where a person seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint under 38 U.S.C. 4322(a), he or she may file an appeal directly with the Board within 180 days after the alleged act or incidence of non-compliance.
(iii) Where a person files a complaint with the Secretary of Labor under 38 U.S.C. 4322(a) and receives notification under 38 U.S.C. 4322(e) that the Secretary has been unable to resolve the matter, he or she may subsequently file an appeal with the Board within 30 days after the date of receipt of the Secretary's notification or within 180 days after the alleged act or incidence of non-compliance, whichever is later. A copy of the Secretary's notification must be submitted with the appeal.
(iv) Where the Secretary of Labor refers a person's complaint to the Special Counsel under 38 U.S.C. 4322(a) and the person receives notification that the Special Counsel declines to represent the person in an appeal to the Board, he or she may subsequently file an appeal with the Board within 30 days after the date of receipt of the Special Counsel's notification or within 180 days after the alleged act or incidence of non-compliance, whichever is later. A copy of the Special Counsel's notification must be submitted with the appeal.
(v) Where the Secretary of Labor refers a person's complaint to the Special Counsel under 38 U.S.C. 4322(a) and the Special Counsel agrees to represent the person in an appeal to the Board, the Special Counsel may file an appeal with the Board at any time thereafter.
(c) Timeliness of appeals. If a party does not submit an appeal within the time set by statute, regulation,
or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The judge
will provide the party an opportunity to show why the appeal should not be dismissed as untimely.
(d) Method of filing. Filing must be made with the appropriate Board office by personal delivery, by facsimile,
by mail, or by commercial overnight delivery.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 59992, Nov. 6, 1997; 62 FR 66814, Dec. 22, 1997; 64 FR 27899, May 25, 1999]
In computing the number of days allowed for filing a submission, the first day counted is the day after the event from which the time period begins to run. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date.
Example: If an employee receives a decision notice that is effective on July 1, the 30-day period for filing an appeal starts to run on July 2. The filing ordinarily would be timely only if it is made by July 31. If July 31 is a Saturday, however, the last day for filing would be Monday, August 2.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994]
(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under Sec. 1201.35 may file an appeal. Appeals may be in any format, including letter form, but they must contain the following:
(b) An appellant may raise a claim or defense not included in the appeal at any time before the end of the conference(s) held to define the issues in the case. An appellant may not raise a new claim or defense after that time, except for good cause shown. However, a claim or defense not included in the appeal may be excluded if a party shows that including it would result in undue prejudice.
(c) Use of Board form. An appellant may comply with paragraph (a) of this section, and with Sec. 1201.31 of this part, by completing the form in Appendix I of this part.
(d) Right to hearing. Under 5 U.S.C. 7701, an appellant has a right to a hearing.
(e) 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.
The agency response to an appeal must contain the following:
(a) Number. The appellant must file two copies of both the appeal and all attachments with the appropriate Board office.
(b) Service-
(c) Paper size. Pleadings and attachments must be filed on 8 1/2 by 11-inch paper, except for good cause shown. This requirement enables the Board to comply with standards established for U.S. courts.
[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58 FR 36345, July 7, 1993]
(a) Appeal. One or more employees may file an appeal as representatives of a class of employees. The judge will hear the case as a class appeal if he or she finds that a class appeal is the fairest and most efficient way to adjudicate the appeal and that the representative of the parties will adequately protect the interests of all parties. When a class appeal is filed, the time from the filing date until the judge issues his or her decision under paragraph (b) of this section is not counted in computing the time limit for individual members of the potential class to file individual appeals.
(b) Procedure. The judge will consider the appellant's request and any opposition to that request, and will issue an order within 30 days after the appeal is filed stating whether the appeal is to be heard as a class appeal. If the judge denies the request, the appellants affected by the decision may file individual appeals within 30 days after the date of receipt of the decision denying the request to be heard as a class appeal. Each individual appellant is responsible for either filing an individual appeal within the original time limit, or keeping informed of the status of a class appeal and, if the class appeal is denied, filing an individual appeal within the additional 35-day period.
(c) Standards. In determining whether it is appropriate to treat an appeal as a class action, the judge will be guided but not controlled by the applicable provisions of the Federal Rules of Civil Procedure.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997]
(a) A party to an appeal may be represented in any matter related to the appeal. The parties must designate their representatives, if any, in writing. Any change in representation, and any revocation of a designation of representative, also must be in writing. Notice of the change must be filed and served on the other parties in accordance with Sec. 1201.26 of this part.
(b) A party may choose any representative as long as that person is willing and available to serve. The other party or parties may challenge the designation, however, on the ground that it involves a conflict of interest or a conflict of position. Any party who challenges the designation must do so by filing a motion with the judge within 15 days after the date of service of the notice of designation. The judge will rule on the motion before considering the merits of the appeal. These procedures apply equally to each designation of representative, regardless of whether the representative was the first one designated by a party or a subsequently designated representative. If a representative is disqualified, the judge will give the party whose representative was disqualified a reasonable time to obtain another one.
(c) The judge, on his or her own motion, may disqualify a party's representative on the grounds described in paragraph (b) of this section.
(d)(1) A judge may exclude a party, a representative, or other person from all or any portion of the proceeding before him or her for contumacious misconduct or conduct that is prejudicial to the administration of justice.
(2) When a judge determines that a person should be excluded from participation in a proceeding, the judge shall inform the person of this determination through issuance of an order to show cause why he or she should not be excluded. The show cause order shall be delivered to the person by the most expeditious means of delivery available, including issuance of an oral order on the record where the determination to exclude the person is made during a hearing. The person must respond to the judge's show cause order within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the order, unless the judge provides a different time limit, or forfeit the right to seek certification of a subsequent exclusion order as an interlocutory appeal to the Board under paragraph (d)(3) of this section.
(3) When, after consideration of the person's response to the show cause order, or in the absence of a response to the show cause order, the judge determines that the person should be excluded from participation in the proceeding, the judge shall issue an order that documents the reasons for the exclusion. The person may obtain review of the judge's ruling by filing, within three days (excluding Saturdays, Sundays, and Federal holidays) of receipt of the ruling, a motion that the ruling be certified to the Board as an interlocutory appeal. The judge shall certify an interlocutory appeal to the Board within one day (excluding Saturdays, Sundays, and Federal holidays) of receipt of such a motion. Only the provisions of this paragraph apply to interlocutory appeals of rulings excluding a person from a proceeding; the provisions of Secs. 1201.91 through 1201.93 of this part shall not apply.
(4) A proceeding will not be delayed because the judge excludes a person from the proceeding, except that:
(i) Where the judge excludes a party's representative, the judge will give the party a reasonable time to obtain another representative; and
(ii) Where the judge certifies an interlocutory appeal of an exclusion ruling to the Board, the judge or the Board may stay the proceeding sua sponte or on the motion of a party for a stay of the proceeding.
(5) The Board, when considering a petition for review of a judge's initial decision under subpart C of this part,
will not be bound by any decision of the judge to exclude a person from the proceeding below.
[63 FR 1998 35499, June 30, 1998]
Witnesses have the right to be represented when testifying.The representative of a nonparty witness has no right to examine the witness at the hearing or otherwise participate in the development of testimony.
(a) Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements
or to appear as witnesses at the hearing when ordered by the judge to do so. When providing those statements or
appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and
benefits including travel and per diem, where appropriate).
(b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written
request that the judge order the employing agency to provide such official time. The judge will act on such a request
promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section.
(c) An order obtained under paragraph (b) of this section may be enforced as provided under subpart F of this part.[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997]
(a) Explanation of Intervention. Intervenors are organizations or persons who want to participate in a proceeding because they believe the proceeding, or its outcome, may affect their rights or duties. Intervenors as a "matter of right" are those parties who have a statutory right to participate. "Permissive" intervenors are those parties who may be permitted to participate if the proceeding will affect them directly and if intervention is otherwise appropriate under law. A request to intervene may be made by motion filed with the judge.
(b) Intervenors as a matter of right.
(c) Permissive intervenors.
(d) Role of intervenors. Intervenors have the same rights and duties as parties, with the following two exceptions:
(e) Amicus curiae. An amicus curiae is a person or organization that, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may, in the discretion of the judge, be granted permission to file an amicus curiae brief.
(a) If an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. Substitution will not be permitted where the interests of the appellant have terminated because of the appellant's death or other disability.
(b) The representative or proper party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown.
(c) In the absence of a timely substitution of a party, the processing of the appeal may continue if the interests of the proper party will not be prejudiced.
(a) Explanation.
(b) Action by judge. A judge may consolidate or join cases on his or her own motion or on the motion of a party if doing so would:
(c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion.
(a) Federal employees. Employees of a Federal agency or corporation testifying in any Board proceeding or making
a statement for the record will be in official duty status and will not receive witness fees.
(b) Other witnesses. Other witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee
and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.
(c) Payment of witness fees and travel costs. The party requesting the presence of a witness must pay that witness'
fees. Those fees must be paid or offered to the witness at the time the subpoena is served, or, if the witness
appears voluntarily, at the time of appearance. A Federal agency or corporation is not required to pay or offer
witness fees in advance.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997]
(a) Exercise of authority. Judges may exercise authority as provided in paragraphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.
(b) Authority. Judges will conduct fair and impartial hearings and will take all necessary action to avoid delay in all proceedings. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges' powers include, but are not limited to, the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas under Sec. 1201.81 of this part;
(3) Rule on offers of proof and receive relevant evidence;
(4) Rule on discovery motions under Sec. 1201.73 of this part;
(5) After notice to the parties, order a hearing on his or her own initiative if the judge determines that a hearing is necessary:(i) To resolve an important issue of credibility;
(ii) To ensure that the record on significant issues is fully developed; or
(iii) To otherwise ensure a fair and just adjudication of the case;(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;
(7) Exclude any person from all or any part of the proceeding before him or her as provided under Sec. 1201.31(d) of this part;
(8) Rule on all motions, witness and exhibit lists, and proposed findings;
(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;
(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;
(11) Impose sanctions as provided under Sec. 1201.43 of this part;
(12) Hold prehearing conferences for the settlement and simplification of issues;
(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication;
(14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F;
(15) Issue initial decisions; and
(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.
(c) Settlement--
(1) Settlement discussion. The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against ex parte communications during settlement discussions, and they may agree to any limits on the waiver.
(2) Agreement. If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.
(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997,[63 FR 1998 35499, June 30, 1998]
(a) If a judge considers himself or herself disqualified, he or she will withdraw from the case, state on the record the reasons for doing so, and immediately notify the Board of the withdrawal.
(b) A party may file a motion asking the judge to withdraw on the basis of personal bias or other disqualification. This motion must be filed as soon as the party has reason to believe there is a basis for disqualification. The reasons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)
(c) If the judge denies the motion, the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under Sec. 1201.91 of this part. Failure to request certification is considered a waiver of the request for withdrawal.
The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), and (c) of this section.
(a) Failure to comply with an order. When a party fails to comply with an order, the judge may:
(b) Failure to prosecute or defend appeal. If a party fails to prosecute or defend an appeal, the judge may dismiss the appeal with prejudice or rule in favor of the appellant.
(c) Failure to make timely filing. The judge may refuse to consider any motion or other pleading that is not filed in a timely fashion in compliance with this subpart.
(a) The hearing will be scheduled not earlier than 15 days after the date of the hearing notice unless the parties agree to an earlier date. The agency, upon request of the judge, must provide appropriate hearing space.
(b) The judge may change the time, date, or place of the hearing, or suspend, adjourn, or continue the hearing. The change will not require the 15-day notice provided in paragraph (a) of this section.
(c) Either party may file a motion for postponement of the hearing. The motion must be made in writing and must either be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must describe the reasons for the request. The judge will grant the request for postponement only upon a showing of good cause.
(d) The Board has established certain approved hearing locations, which are published as a Notice in the Federal Register. See appendix III. Parties, for good cause, may file motions requesting a different hearing location. Rulings on those motions will be based on a showing that a different location will be more advantageous to all parties and to the Board.
Hearings are open to the public. The judge may order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge's decision.Any objections to the order will be made a part of the record.
(a) Preparation. A verbatim record of every hearing, made under the supervision of the judge, will be kept and will be the sole official record of the proceeding.
(b) Copies. Upon request, and upon payment of costs, a copy of a tape recording or transcript (if one is prepared) of the hearing will be made available to the parties. Parties must direct requests for copies of tape recordings or transcripts to the official hearing reporter.
(c) Exceptions to payment of costs. Exceptions to the payment requirement may be granted under extenuating circumstances for good cause shown. A motion for an exception must be filed with the judge. The reasons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)
(d) Corrections. Corrections of the official transcript may be permitted on motion by a party or on the judge's own motion.Motions for corrections must be filed within 10 days after the receipt of a transcript. Corrections of the official transcript will be permitted only when errors of substance are involved and only on approval of the judge.
Exhibits and the verbatim record of testimony, if a hearing is held, together with all pleadings filed during the appellate proceedings, and all orders and decisions of the judge and the Board, constitute the exclusive and official record of the case.
(a) Form. All motions, except those made during a prehearing conference or a hearing, must be in writing. All motions must include a statement of the reasons supporting them. Written motions must be filed with the judge or the Board, as appropriate, and must be served upon all other parties in accordance with Sec. 1201.26(b)(2) of this part. A party filing a motion for extension of time, a motion for postponement of a hearing, or any other procedural motion must first contact the other party to determine whether there is any objection to the motion, and must state in the motion whether the other party has an objection.
(b) Objection. Unless the judge provides otherwise, any objection to a written motion must be filed within 10 days from the date of service of the motion. Judges, in their discretion, may grant or deny motions for extensions of time to file pleadings without providing any opportunity to respond to the motions.
(c) Motions for extension of time. Motions for extension of time will be granted only on a showing of good cause.
(d) Motions for protective orders. A motion for an order under 5 U.S.C. 1204(e)(1)(B) to protect a witness or other individual from harassment must be filed as early in the proceeding as practicable. The party seeking a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. An agency, other than the Office of Special Counsel, may not request such an order with respect to an investigation by the Special Counsel during the Special Counsel's investigation. An order issued under this paragraph may be enforced in the same manner as provided under subpart F for Board final decisions and orders.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]
(a) Burden and degree of proof-
(1) Agency: Under 5 U.S.C. 7701(c)(1) and subject to the exceptions stated in paragraph (b) of this section, the agency action must be sustained if:
(2) Appellant. The appellant has the burden of proof, by a preponderance of the evidence, with respect to:
In appeals from reconsideration decisions of the Office of Personnel Management involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence, entitlement to the benefits.An appellant who has received an overpayment from the Civil Service Retirement and Disability Fund has the burden of proving, by substantial evidence, eligibility for waiver or adjustment.
(b) Affirmative defenses of the appellant. Under 5 U.S.C. 7701(c)(2), the Board is required to overturn the action of the agency, even where the agency has met the evidentiary standard stated in paragraph (a) of this section, if the appellant:
(c) Definitions. The following definitions apply to this part:
[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991]
(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.
(b) The appellant will proceed first at hearings convened on the issues of:
(c) The judge may vary the normal order of presenting evidence.
(a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identified for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose.
(b) If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties.
(c) Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.The judge will include in the record, however, any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared.
Any evidence and testimony that is offered in the hearing and excluded by the judge will be described, and that description will be made a part of the record.
After an individual has given evidence in a proceeding, any party may request a copy of any prior signed statement made by that individual that is relevant to the evidence given. If the party refuses to furnish the statement, the judge may exclude the evidence given.
The parties may stipulate to any matter of fact. The stipulation will satisfy a party's burden of proving the fact alleged.
Official notice is the Board's or judge's recognition of certain facts without requiring evidence to be introduced establishing those facts. The judge, on his or her own motion or on the motion of a party, may take official notice of matters of common knowledge or matters that can be verified. The parties may be given an opportunity to object to the taking of official notice. The taking of official notice of any fact satisfies a party's burden of proving that fact.
Proceedings before the Board will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention.
(a) Explanation. Discovery is the process, apart from the hearing, by which a party may obtain relevant information, including the identification of potential witnesses, from another person or a party, that the other person or party has not otherwise provided. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained to assist the parties in preparing and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. Those rules, however, are instructive rather than controlling.
(b) Scope. Discovery covers any nonprivileged matter that is relevant to the issues involved in the appeal, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Discovery requests that are directed to nonparties and nonparty Federal agencies and employees are limited to information that appears directly material to the issues involved in the appeal.
(c) Methods. Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written interrogatories, depositions, requests for production of documents or things for inspection or copying, and requests for admission.
(a) Discovery from a party. A party seeking discovery from another party must start the process by serving a request for discovery on the representative of the other party or the party if there is no representative. The request for discovery must state the time limit for responding, as prescribed in Sec. 1201.73(d), and must specify the time and place of the taking of the deposition, if applicable.When a party directs a request for discovery to an officer or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request, and must assist the officer or employee as necessary in providing relevant information that is available to the agency.
(b) Discovery from a nonparty, including a nonparty Federal agency. Parties should try to obtain voluntary discovery from nonparties whenever possible. A party seeking discovery from a nonparty Federal agency or employee must start the process by serving a request for discovery on the nonparty Federal agency or employee. A party may begin discovery from other nonparties by serving a request for discovery on the nonparty directly.If the party seeking the information does not make that request, or if it does so but fails to obtain voluntary cooperation, it may obtain discovery from a nonparty by filing a written motion with the judge, showing the relevance, scope, and materiality of the particular information sought. If the party seeks to take a deposition, it should state in the motion the date, time, and place of the proposed deposition. An authorized official of the Board will issue a ruling on the motion, and will serve the ruling on the moving party. That official also will provide that party with a subpoena, if approved, that is directed to the individual or entity from which discovery is sought. The subpoena will specify the manner in which the party may seek compliance with it, and it will specify the time limit for seeking compliance. The party seeking the information is responsible for serving any Board-approved discovery request and subpoena on the individual or entity, or for arranging for their service.
(c) Responses to discovery requests.
(See appendix IV.)
(3) The other party and any other entity or person from whom discovery was sought may respond to the motion to compel discovery within the time limits stated in paragraph (d)(4) of this section.
(d) Time limits.
(1) Parties who wish to make discovery requests or motions must serve their initial requests or motions within 25 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.
(2) A party or nonparty must file a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place.
(3) Any motion to depose a nonparty (along with a request for a subpoena) must be submitted to the judge within the time limits stated in paragraph (d)(1) of this section or as the judge otherwise directs.
(4) Any motion for an order to compel discovery must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel discovery must be filed with the judge within 10 days of the date of service of the motion.
(5) Discovery must be completed within the time the judge designates.
(a) Motion for an order compelling discovery. Motions for orders compelling discovery and motions for the appearance of nonparties must be filed with the judge in accordance with Sec. 1201.73(c)(2) and (d)(4).
(b) Content of order. Any order issued will include, where appropriate:
(c) Noncompliance. The judge may impose sanctions under Sec. 1201.43 of this part for failure to comply with an order compelling discovery.
Depositions may be taken by any method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements.
(a) Request. Parties who wish to obtain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the production of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those subpoenas with the judge. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses.
(b) Form. Parties requesting subpoenas must file their requests, in writing, with the judge. Each request must identify specifically the books, papers, or testimony desired.
(c) Relevance. The request must be supported by a showing that the evidence sought is relevant and that the scope of the request is reasonable.
(d) Rulings. Any judge who does not have the authority to issue subpoenas will refer the request to an official with authority to rule on the request, with a recommendation for decision.The official to whom the request is referred will rule on the request promptly. Judges who have the authority to rule on these requests themselves will do so directly.
Any person to whom a subpoena is directed, or any party, may file a motion to quash or limit the subpoena. The motion must be filed with the judge, and it must include the reasons why compliance with the subpoena should not be required or the reasons why the subpoena's scope should be limited.
(a) Any person who is at least 18 years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who requested the subpoena, and to whom the subpoena has been issued, is responsible for serving the subpoena.
(b) A subpoena directed to an individual outside the territorial jurisdiction of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country.
The person who has served the subpoena must certify that he or she did so:
The document in which the party makes this certification also must include a statement that the prescribed fees have been paid or offered.
(a) If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge or make an oral motion for enforcement while on the record at a hearing. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. The Board, in accordance with 5 U.S.C. 1204(c), may then ask the appropriate United States district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country.
(b) Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).
An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she determines that the issue presented in it is of such importance to the proceeding that it requires the Board's immediate attention. Either party may make a motion for certification of an interlocutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board's decision.
The judge will certify a ruling for review only if the record shows that:
(a) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and
(b) An immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.
(a) Motion for certification. A party seeking the certification of an interlocutory appeal must file a motion for certification within 10 days of the date of the ruling to be appealed. The motion must be filed with the judge, and must state why certification is appropriate and what the Board should do and why. The opposing party may file objections within 10 days of the date of service of the motion, or within any other time period that the judge may designate.
(b) Certification and review. The judge will grant or deny a motion for certification within five days after receiving all pleadings or, if no response is filed, within 10 days after receiving the motion. If the judge grants the motion for certification, he or she will refer the record to the Board. If the judge denies the motion, the party that sought certification may raise the matter at issue in a petition for review filed after the initial decision is issued, in accordance with Sec.Sec. 1201.113 and 1201.114 of this part.
(c) Stay of hearing. The judge has the authority to proceed with or to stay the hearing while an interlocutory appeal is pending with the Board. Despite this authority, however, the Board may stay a hearing on its own motion while an interlocutory appeal is pending with it.
(a) Explanation. An ex parte communication is an oral or written communication between a decision-making official of the Board and an interested party to a proceeding, when that communication is made without providing the other parties to the appeal with a chance to participate. Not all ex parte communications are prohibited. Those that involve the merits of the case, or those that violate rules requiring submissions to be in writing, are prohibited. Accordingly, interested parties may ask about such matters as the status of a case, when it will be heard, and methods of submitting evidence to the Board. Parties may not ask about matters such as what defense they should use or whether their evidence is adequate, and they may not make a submission orally if that submission is required to be made in writing.
(b) Definitions for purposes of this section.
(2) Decision-making official means any judge, officer or other employee of the Board designated to hear and decide cases.
Except as otherwise provided in Sec. 1201.41(c)(1) of this part, ex parte communications that concern the merits of any matter before the Board for adjudication, or that otherwise violate rules requiring written submissions, are prohibited from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter.
(a) Any communication made in violation of Sec. 1201.102 of this part will be made a part of the record. If the communication was oral, a memorandum stating the substance of the discussion will be placed in the record.
(b) If there has been a violation of Sec. 1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a response.
(c) The following sanctions are available:
(a) The judge will prepare an initial decision after the record closes, and will serve that decision on the Clerk of the Board, on the Director of the Office of Personnel Management, and on all parties to the appeal, including named parties, permissive intervenors, and intervenors of right.
(b) Each initial decision will contain:
(c) Interim relief. (1)Under 5 U.S.C. 7701(b)(2), if the appellant is the prevailing party, the initial decision will provide appropriate interim relief to the appellant effective upon the date of the initial decision and remaining in effect until the date of the final order of the Board on any petition for review, unless the judge determines that the granting of interim relief is not appropriate. The agency may decline to return the appellant to his or her place of employment if it determines that the return or presence of the appellant will be unduly disruptive to the work environment. However, pay and benefits must be provided.
(2) An initial decision that orders interim relief shall include a section which will provide the appellant specific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the initial decision requires the agency to effect an appointment, the notice required by this section will so state, will specify the title and grade of the appointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997, 63 FR 41179, Aug. 3,
1998, 64 FR 27900, May 24, 1999]
(a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to:
(b) Nothing is this section affects the time limits prescribed in Sec. 1201.113 regarding the finality of an initial decision or the time allowed for filing a petition for review.
[[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997]
The initial decision of the judge will become final 35 days after issuance. Initial decisions are not precedential.
(a) Exceptions. The initial decision will not become final if, within 35 days after issuance of the decision, any party files a petition for review, or if the Board reopens the case on its own motion.
(b) Petition for review denied. If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review.
(c) Petition for review granted or case reopened. If the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.
(d) Extensions. The Board may extend the time limit for filing a petition for good cause shown as specified in Sec. 1201.114 of this part.
(e) Exhaustion. Administrative remedies are exhausted when a decision becomes final in accordance with this section.
[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997]
(a) Who may file. Any party to the proceeding, the Director of the Office of Personnel Management (OPM), or the Special Counsel may file a petition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under OPM's jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party's designated representative.
(b) Cross petition for review. If a party, the Director of OPM, or the Special Counsel files a timely petition for review, any other party, the Director of OPM, or the Special Counsel may file a timely cross petition for review. The Board normally will consider only issues raised in a timely filed petition for review or in a timely filed cross petition for review.
(c) Place for filing. A petition for review, cross petition for review, responses to those petitions, and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, Washington, DC 20419, by personal delivery, by facsimile, by mail, or by commercial overnight delivery.
(d) Time for filing. Any petition for review must be filed within 35 days after the initial decision is issued.
A cross petition for review must be filed within 25 days of the date of issuance of the initial decision, or, if
the
petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30
days after the date the petitioner received the initial decision. A cross petition for review must be filed
within 25 days of the date of service of the petition for review. Any response to a petition for review or to a
cross petition for review must be filed within 25 days after the date of service of the petition or cross petition.
(e) Extension of time to file. The Board will grant a motion for extension of time to file a petition for review, a cross petition, or a response only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board before the date on which the petition or other pleading is due. The Board, in its discretion, may grant or deny those motions without providing the other parties the opportunity to comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must include a specific and detailed description of the circumstances alleged to constitute good cause, and it should be accompanied by any available documentation or other evidence supporting the matters asserted.
(f) Late filings. Any petition for review, cross petition for review, or response that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (e) of this section, or unless a motion for extension is pending before the Board. The motion must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must include:
Any response to the motion may be included in the response to the petition for review, the cross petition for review, or the response to the cross petition for review. The response will not extend the time provided by paragraph (d) of this section to file a cross petition for review or to respond to the petition or cross petition. In the absence of a motion, the Board may, in its discretion, determine on the basis of the existing record whether there was good cause for the untimely filing, or it may provide the party that submitted the document with an opportunity to show why it should not be dismissed or excluded as untimely.
(g) Intervention-
(3) Permissive intervenors. Any person, organization or agency, by motion made in a petition for review, may ask for permission to intervene. The motion must state in detail the reasons why the person, organization or agency should be permitted to intervene. A motion for permission to intervene will be granted if the requester shows that he or she will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may ask for permission to intervene.
(h) Service. A party submitting a pleading must serve a copy of it on each party and on each representative as provided in Sec. 1201.26(b)(2).
(i) Closing the record. The record closes on expiration of the period for filing the response to the petition for review, or to the cross petition for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose.Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.
[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993, 62 FR 59992, Nov. 6, 1997]
(a) The petition for review must state objections to the initial decision that are supported by references to applicable laws or regulations and by specific references to the record.
(b)(1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has
complied with the interim relief order either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(2) If the appellant challenges the agency’s certification of compliance with the interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant may respond to the agency’s submission of evidence within 10 days after the date of service of the submission.
(3) If an appellant or an intervenor files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency’s compliance with the interim relief order, upon order of the Board the agency must submit evidence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(4) Failure by an agency to provide the certification required by paragraph (b)(1) of this section with its petition or cross petition for review, or to provide evidence of compliance in response to a Board order in accordance with paragraph (b)(2) or (b)(3) of this section, may result in the dismissal of the agency’s petition or cross petition for review.
(c) Nothing in paragraph (b) of this section shall be construed to require any payment of back pay for the period preceding the date of the judge’s initial decision or attorney fees before the decision of the Board becomes final.
(d) The Board, after providing the other parties with an opportunity to respond, may grant a petition for review when it is established that:
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 30863, June 16, 1994, 62 FR 43631, Aug. 15, 1997, 64 FR 27900, May 24, 1999]
(a) Before a final decision is issued. If the agency files a petition for review or a cross petition for review and has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit.
(b) After a final decision is issued. If the appellant is not the prevailing party in the final Board order, and if the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under Sec. 1201.182. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under Sec. 1201.183.
[59 FR 30864, June 16, 1994]
(a) In any case that is reopened or reviewed, the Board may:
(b) The Board may affirm, reverse, modify, or vacate the decision of the judge, in whole or in part. Where appropriate, the Board will issue a final decision and order a date for compliance with that decision.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
The Board may reopen an appeal and reconsider a decision of a judge on its own motion at any time, regardless of any other provisions of this part.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
(a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office of Personnel Management may file a petition for reconsideration of a Board final order if he or she determines:
(b) Time limit. The Director must file the petition for reconsideration within 35 days after the date of service of the Board's final order.
(c) Briefs. After the petition is filed, the Board will make the official record relating to the petition for reconsideration available to the Director for review. The Director's brief in support of the petition for reconsideration must be filed within 20 days after the Board makes the record available for review. Any party's opposition to the petition for reconsideration must be filed within 25 days from the date of service of the Director's brief.
(d) Stays. If the Director of OPM files a petition for reconsideration, he or she also may ask the Board to stay its final order. An application for a stay, with a supporting memorandum, must be filed at the same time as the petition for reconsideration.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
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 in the United States Court of Appeals for the Federal Circuit. 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.
[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994]
(a) Scope. The Board has original jurisdiction over complaints filed by the Special Counsel seeking corrective
or disciplinary action (including complaints alleging a violation of the Hatch Political Activities Act), requests
by the Special Counsel for stays of certain personnel actions, proposed agency actions against administrative law
judges, and removals of career appointees from the Senior Executive Service for performance reasons.
(b) Application of subparts B, F, and H
(1) Except as otherwise expressly provided by this subpart, the regulations in subpart B of this part applicable to appellate case processing also apply to original jurisdiction cases processed under this subpart.
(2) Subpart F of this part applies to enforcement proceedings in connection with Special Counsel complaints and stay requests, and agency actions against administrative law judges, decided under this subpart.
(3) Subpart H of this part applies to requests for attorney fees or compensatory damages in connection with Special Counsel corrective and disciplinary action complaints, and agency actions against administrative law judges, decided under this subpart. Subpart H of this part also applies to requests for consequential damages in connection with Special Counsel corrective action complaints decided under this
subpart.
(c) The provisions of this subpart do not apply to appeals alleging non-compliance with the provisions of chapter
43 of title 38 of the United States Code relating to the employment or reemployment rights or benefits to which
a person is entitled after service in the uniformed services, in which the Special Counsel appears as the designated
representative of the appellant. Such appeals are governed by subpart B of this part.
[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]
(a) Place of filing. A Special Counsel complaint seeking disciplinary action under 5 U.S.C. 1215(a)(1) (including
a complaint alleging a violation of the Hatch Political Activities Act) must be filed with the Clerk of the Board.
(b) Initial filing and service. The Special Counsel must file two copies of the complaint, together with numbered
and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party's representative.
The certificate of service must show the last known address, telephone number, and facsimile number of each party
or representative. The Special Counsel must serve a copy of the complaint on each party or the party's representative,
as shown on the certificate of service.
(c) Subsequent filings and service. Each party must serve on every other party or the party's representative one
copy of each of its pleadings, as defined by Sec. 1201.4(b). A certificate of service describing how and when service
was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or facsimile number of the party or the party's representative.
(d) Method of filing and service. Filing may be by mail, by facsimile, by commercial overnight delivery, or by
personal delivery to the Clerk of the Board. Service may be by mail, by facsimile, by commercial overnight delivery,
or by personal delivery to each party or the party's representative, as shown on the certificate of service.
(a) If the Special Counsel determines that the Board should take any of the actions listed below, he or she must
file a written complaint in accordance with Sec. 1201.122 of this part, stating with particularity any alleged
violations of law or regulation, along with the supporting facts.
(1) Action to discipline an employee alleged to have committed a prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
(2) Action to discipline an employee alleged to have violated any law, rule, or regulation, or to have engaged in prohibited conduct, within the jurisdiction of the Special Counsel under 5 U.S.C. 1216 (including an alleged violation by a Federal or District of Columbia government employee involving political activity prohibited under 5
U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);
(3) Action to discipline a State or local government employee for an alleged violation involving prohibited political activity, 5 U.S.C. 1505; or
(4) Action to discipline an employee for an alleged knowing and willful refusal or failure to comply with an order of the Board, 5 U.S.C. 1215(a)(1)(C).
(b) The administrative law judge to whom the complaint is assigned may order the Special Counsel and the responding
party to file briefs, memoranda, or both in any disciplinary action complaint the Special Counsel brings before
the Board.
(a) An administrative law judge will hear a disciplinary action complaint brought by the Special Counsel.
(b) Except as provided in paragraph (c)(1) of this section, the administrative law judge will issue an initial
decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of Secs. 1201.111, 1201.112, and
1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality
of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board
under subpart C of this part.
(c) (1) In a Special Counsel complaint seeking disciplinary action against a Federal or District of Columbia government
employee for a violation of 5 U.S.C. 7324, where the administrative law judge finds that the violation does not
warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with
5 U.S.C. 557.
(2) The parties may file with the Clerk of the Board any exceptions they may have to the recommended decision of
the administrative law judge. Those ex