[Title 5 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1997 Edition]
[From the U.S. Government Publishing Office]
5
Administrative Personnel
[[Page i]]
PART 1200 TO END
Revised as of January 1, 1997
6
(Reserved)
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. vii
Title 5:
Chapter II--Merit Systems Protection Board................ 3
Chapter III--Office of Management and Budget.............. 81
Chapter IV--Advisory Committee on Federal Pay............. 129
Chapter V--The International Organizations Employees
Loyalty Board......................................... 139
Chapter VI--Federal Retirement Thrift Investment Board.... 145
Chapter VII--Advisory Commission on Intergovernmental
Relations............................................. 255
Chapter VIII--Office of Special Counsel................... 275
Chapter IX--Appalachian Regional Commission............... 289
Chapter XI--Armed Forces Retirement Home.................. 291
Chapter XIV--Federal Labor Relations Authority, General
Counsel of the Federal Labor Relations Authority and
Federal Service Impasses Panel........................ 297
Chapter XV--Office of Administration, Executive Office of
the President......................................... 383
Chapter XVI--Office of Government Ethics.................. 401
Chapter XXI--Department of the Treasury................... 597
Chapter XXII--Federal Deposit Insurance Corporation....... 607
[[Page iv]]
Chapter XXIII--Department of Energy....................... 615
Chapter XXIV--Federal Energy Regulatory Commission........ 619
Chapter XXVI--Department of Defense....................... 623
Chapter XXVIII--Department of Justice..................... 627
Chapter XXIX--Federal Communications Commission........... 631
Chapter XXX--Farm Credit System Insurance Corporation..... 635
Chapter XXXI--Farm Credit Administration.................. 639
Chapter XXXIII--Overseas Private Investment Corporation... 643
Chapter XXXV--Office of Personnel Management.............. 645
Chapter XL--Interstate Commerce Commission................ 649
Chapter XLI--Commodity Futures Trading Commission......... 653
Chapter XLII--Department of Labor......................... 657
Chapter XLIII--National Science Foundation................ 663
Chapter XLV--Department of Health and Human Services...... 669
Chapter XLVI--Postal Rate Commission...................... 677
Chapter XLVII--Federal Trade Commission................... 681
Chapter XLVIII--Nuclear Regulatory Commission............. 683
Chapter L--Department of Transportation................... 687
Chapter LII--Export-Import Bank of the United States...... 691
Chapter LIII--Department of Education..................... 695
Chapter LIV--Environmental Protection Agency.............. 699
Chapter LVII--General Services Administration............. 703
[[Page v]]
Chapter LVIII--Board of Governors of the Federal Reserve
System................................................ 707
Chapter LIX--National Aeronautics and Space Administration 713
Chapter LX--United States Postal Service.................. 717
Chapter LXII--Equal Employment Opportunity Commission..... 721
Chapter LXIII--Inter-American Foundation.................. 725
Chapter LXV--Department of Housing and Urban Development.. 727
Chapter LXVI--National Archives and Records Administration 733
Chapter LXIX--Tennessee Valley Authority.................. 735
Chapter LXXI--Consumer Product Safety Commission.......... 737
Chapter LXXIV--Federal Mine Safety and Health Review
Commission............................................ 739
Chapter LXXVI--Federal Retirement Thrift Investment Board. 743
Chapter LXXVII--Office of Management and Budget........... 745
Title 6--[Reserved]
Finding Aids:
Table of CFR Titles and Chapters.......................... 751
Alphabetical List of Agencies Appearing in the CFR........ 767
Redesignation Tables...................................... 777
List of CFR Sections Affected............................. 785
[[Page vi]]
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 5 CFR 1200.1 refers to title
5, part 1200, section 1.
----------------------------------------------------------
[[Page vii]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page viii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
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An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
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Office of the Federal Register.
January 1, 1997.
[[Page ix]]
THIS TITLE
Title 5--Administrative Personnel is composed of three volumes. The
parts in these volumes are arranged in the following order: parts 1-699,
700-1199 and part 1200-end. The first and second volumes containing
parts 1-1199 are comprised of chapter I--Office of Personnel Management.
The third volume containing part 1200-end is comprised of chapter II--
Merit Systems Protection Board, chapter III--Office of Management and
Budget, chapter IV--Advisory Committee on Federal Pay, chapter V--The
International Organizations Employees Loyalty Board, chapter VI--Federal
Retirement Thrift Investment Board, chapter VII--Advisory Commission on
Intergovernmental Relations, chapter VIII--Office of Special Counsel,
chapter IX--Appalachian Regional Commission, chapter XI--Armed Forces
Retirement Home, chapter XIV--Federal Labor Relations Authority, General
Counsel of the Federal Labor Relations Authority and Federal Service
Impasses Panel, chapter XV--Office of Administration, Executive Office
of the President, chapter XVI--Office of Government Ethics, chapter
XXI--Department of the Treasury, chapter XXII--Federal Deposit Insurance
Corporation, chapter XXIII--Department of Energy, chapter XXIV--Federal
Energy Regulatory Commission, chapter XXVI--Department of Defense,
chapter XXVIII--Department of Justice, chapter XXIX--Federal
Communications Commission, chapter XXX--Farm Credit System Insurance
Corporation, chapter XXXI--Farm Credit Administration, chapter XXXIII--
Overseas Private Investment Corporation, chapter XXXV--Office of
Personnel Management, chapter XL--Interstate Commerce Commission,
chapter XLI--Commodity Futures Trading Commission, chapter XLII--
Department of Labor, chapter XLIII--National Science Foundation, chapter
XLV--Department of Health and Human Services, chapter XLVI--Postal Rate
Commission, chapter XLVII--Federal Trade Commission, chapter XLVIII--
Nuclear Regulatory Commission, chapter L--Department of Transportation,
chapter LII--Export-Import Bank of the United States, chapter LIII--
Department of Education, chapter LIV--Environmental Protection Agency,
chapter LVII--General Services Administration, chapter LVIII--Board of
Governors of the Federal Reserve System, chapter LIX--National
Aeronautics and Space Administration, chapter LX--United States Postal
Service, chapter LXII--Equal Employment Opportunity Commission, chapter
LXIII--Inter-American Foundation, chapter LXV--Department of Housing and
Urban Development, chapter LXVI--National Archives and Records
Administration, chapter LXIX--Tennessee Valley Authority, chapter LXXI--
Consumer Product Safety Commission, chapter LXXIV--Federal Mine Safety
and Health Review Commission, chapter LXXVI--Federal Retirement Thrift
Investment Board and chapter LXXVII--Office of Management and Budget.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 1997.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 700-1199 and part 1200-End.
For this volume, Carol Conroy was the Chief Editor. The Code of
Federal Regulations is published under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page xi]]
[[Page 1]]
TITLE 5--ADMINISTRATIVE PERSONNEL
(This book contains part 1200 to End)
--------------------------------------------------------------------
Editorial Note: Title 5 of the United States Code was revised and
enacted into positive law by Pub. L. 89-554, Sept. 6, 1966. New
citations for obsolete references to sections of 5 U.S.C. appearing in
this volume may be found in a redesignation table under Title 5,
Government Organization and Employees, United States Code.
Part
chapter ii--Merit Systems Protection Board.................. 1200
chapter iii--Office of Management and Budget................ 1300
chapter iv--Advisory Committee on Federal Pay............... 1410
chapter v--The International Organizations Employees Loyalty
Board..................................................... 1501
chapter vi--Federal Retirement Thrift Investment Board...... 1600
chapter vii--Advisory Commission on Intergovernmental
Relations................................................. 1700
chapter viii--Office of Special Counsel..................... 1800
chapter ix--Appalachian Regional Commission................. 1900
chapter xi--Armed Forces Retirement Home.................... 2100
chapter xiv--Federal Labor Relations Authority, General
Counsel of the Federal Labor Relations Authority and
Federal Service Impasses Panel............................ 2411
Appendix A
to 5 CFR
Chapter
XIV--
Current
Addresses
and
Geographic
Jurisdictio
ns.
Appendix B
to 5 CFR
Chapter
XIV--
Memorandum
Describing
the
Authority
and
Assigned
Responsibil
ities of
the
General
Counsel of
the
Federal
Labor
Relations
Authority.
chapter xv--Office of Administration, Executive Office of
the President............................................. 2500
chapter xvi--Office of Government Ethics.................... 2600
chapter xxi--Department of the Treasury..................... 3101
chapter xxii--Federal Deposit Insurance Corporation......... 3201
chapter xxiii--Department of Energy......................... 3301
chapter xxiv--Federal Energy Regulatory Commission.......... 3401
chapter xxvi--Department of Defense......................... 3601
[[Page 2]]
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chapter xxvii--Department of Justice........................ 3801
chapter xxix--Federal Communications Commission............. 3901
chapter xxx--Farm Credit System Insurance Corporation....... 4001
chapter xxxi--Farm Credit Administration.................... 4101
chapter xxxiii--Overseas Private Investment Corporation..... 4301
chapter xxxv--Office of Personnel Management................ 4501
chapter xl--Interstate Commerce Commission.................. 5001
chapter xli--Commodity Futures Trading Commission........... 5101
chapter xlii--Department of Labor........................... 5201
chapter xliii--National Science Foundation.................. 5301
chapter xlv--Department of Health and Human Services........ 5501
chapter xlvi--Postal Rate Commission........................ 5601
chapter xlvii--Federal Trade Commission..................... 5701
chapter xlviii--Nuclear Regulatory Commission............... 5801
chapter l--Department of Transportation..................... 6001
chapter lii--Export-Import Bank of the United States........ 6201
chapter liii--Department of Education....................... 6301
chapter liv--Environmental Protection Agency................ 6401
chapter lvii--General Services Administration............... 6701
chapter lviii--Board of Governors of the Federal Reserve
System.................................................... 6801
chapter lix--National Aeronautics and Space Administration.. 6901
chapter lx--United States Postal Service.................... 7001
chapter lxii--Equal Employment Opportunity Commission....... 7201
chapter lxiii--Inter-American Foundation.................... 7301
chapter lxv--Department of Housing and Urban Development.... 7501
chapter lxvi--National Archives and Records Administration.. 7601
chapter lxix--Tennessee Valley Authority.................... 7901
chapter lxxi--Consumer Product Safety Commission............ 8101
chapter lxxiv--Federal Mine Safety and Health Review
Commission................................................ 8401
chapter lxxvi--Federal Retirement Thrift Investment Board... 8601
chapter lxxvii--Office of Management and Budget............. 8701
[[Page 3]]
CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
--------------------------------------------------------------------
SUBCHAPTER A--ORGANIZATION AND PROCEDURES
Part Page
1200 Board organization.......................... 5
1201 Practices and procedures.................... 6
1202 Statutory Review Board...................... 48
1203 Procedures for review of rules and
regulations of the Office of Personnel
Management.............................. 49
1204 Availability of official information........ 52
1205 Privacy Act regulations..................... 58
1206 Open meetings............................... 61
1207 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Merit
Systems Protection Board................ 64
1208 [Reserved]
1209 Practices and procedures for appeals and
stay requests of personnel actions
allegedly based on whistleblowing....... 70
1210 Debt management............................. 74
[[Page 5]]
SUBCHAPTER A--ORGANIZATION AND PROCEDURES
PART 1200--BOARD ORGANIZATION--Table of Contents
Subpart A--General
Sec.
1200.1 Statement of purpose.
1200.2 Board members and duties.
1200.3 How the Board members make decisions.
Subpart B--Offices of the Board
1200.10 Staff organization and functions.
Source: 56 FR 41747, Aug. 23, 1991, unless otherwise noted.
Subpart A--General
Authority: 5 U.S.C. 1201 et seq.
Sec. 1200.1 Statement of purpose.
The Merit Systems Protection Board (the Board) is an independent
Government agency that operates like a court. The Board was created to
ensure that all Federal government agencies follow Federal merit systems
practices. The Board does this by adjudicating Federal employee appeals
of agency personnel actions, and by conducting special reviews and
studies of Federal merit systems.
[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]
Sec. 1200.2 Board members and duties.
(a) The Board has three members whom the President appoints and the
Senate confirms. Members of the Board serve seven-year terms.
(b) The President appoints, with the Senate's consent, one member of
the Board to serve as Chairman and chief executive officer of the Board.
The President also appoints one member of the Board to serve as Vice
Chairman. If the office of the Chairman is vacant or the Chairman cannot
perform his or her duties, then the Vice Chairman performs the
Chairman's duties. If both the Chairman and the Vice Chairman cannot
perform their duties, then the remaining Board Member performs the
Chairman's duties.
[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]
Sec. 1200.3 How the Board members make decisions.
(a) The three Board members make decisions in all cases by majority
vote except in circumstances described in paragraphs (b) and (c) of this
section or as otherwise provided by law.
(b) When due to a vacancy, recusal or other reasons, the Board
members are unable to decide any case by majority vote, the decision,
recommendation or order under review shall be deemed the final decision
or order of the Board. The Chairman of the Board may direct the issuance
of an order consistent with this paragraph.
(c) When due to a vacancy, recusal or other reasons, the Board
members are unable to decide a matter in a case which does not involve a
decision, recommendation or order, the Chairman may direct referral of
the matter to an administrative judge or other official for final
disposition.
(d) Decisions and orders issued pursuant to paragraphs (b) and (c)
of this section shall not be precedential.
(e) This section applies only when at least two Board members are in
office.
[59 FR 39937, Aug. 5, 1994]
Subpart B--Offices of the Board
Authority: 5 U.S.C. 1204(h) and (j).
Sec. 1200.10 Staff organization and functions.
(a) The Board's headquarters staff is organized into the following
offices:
(1) Office of the Administrative Law Judge and Regional Operations.
(2) Office of Appeals Counsel.
(3) Office of the Clerk of the Board.
(4) Office of the General Counsel.
(5) Office of Policy and Evaluation.
(6) Office of Equal Employment Opportunity.
(7) Office of Planning and Resource Management Services.
[[Page 6]]
(6
(b) The principal functions of the Board's headquarters offices are
as follows:
(1) Office of the Administrative Law Judge and Regional Operations.
The Administrative Law Judge hears Hatch Act cases, disciplinary and
corrective action complaints brought by the Special Counsel, actions
against administrative law judges, appeals of actions taken against MSPB
employees, and other cases that the Board assigns. The office also
manages the appellate functions of the MSPB regional and field offices.
(2) Office of Appeals Counsel. The Director, Office of Appeals
Counsel, prepares proposed decisions that recommend appropriate action
by the Board in petition for review cases and other cases assigned by
the Board.
(3) Office of the Clerk of the Board. The Clerk of the Board enters
petitions for review and original jurisdiction cases onto the Board's
docket and monitors their processing. The Clerk of the Board also does
the following:
(i) Gives information on the status of cases;
(ii) Manages the Board's records, reports, and correspondence style
and control programs; and
(iii) Answers requests under the Freedom of Information and Privacy
Acts at the Board's headquarters.
(4) Office of the General Counsel. The General Counsel provides
legal advice to the Board and its headquarters and regional offices,
represents the Board in court proceedings, coordinates legislative
policy and performs congressional liaison, coordinates the Board's
public affairs function, and plans and directs audits and
investigations.
(5) Office of Policy and Evaluation. The Director, Policy and
Evaluation, conducts special reviews and studies of Federal merit
systems, including reviews of the significant actions of the Office of
Personnel Management.
(6) Office of Equal Employment Opportunity. The Director, Office of
Equal Employment Opportunity, manages the Board's equal employment
programs.
(7) Office of Planning and Resource Management Services. The
Director, Office of Planning and Resource Management Services, develops
and coordinates internal management programs and projects, conducts
agencywide management reviews, and manages the Board's three
administrative divisions: Financial and Administrative Management;
Information Resources Management; and Human Resources Management.
(c) Regional and Field Offices. The Board has six regional offices
and five field offices located throughout the country (See Appendix II
to 5 CFR part 1201 for a list of the regional and field offices). The
regional and field offices enter initial appeals onto their dockets and
decide these cases as provided for in the Board's regulations.
[59 FR 65233, Dec. 19, 1994]
PART 1201--PRACTICES AND PROCEDURES--Table of Contents
Subpart A--Jurisdiction and Definitions
Sec.
1201.1 General.
1201.2 Original jurisdiction.
1201.3 Appellate jurisdiction.
1201.4 General definitions.
Subpart B--Procedures for Appellate Cases
General
1201.11 Scope and policy.
1201.12 Revocation, amendment, or waiver of rules.
1201.13 Appeals by Board employees.
Appeal of Agency Action; Pleadings
1201.21 Notice of appeal rights.
1201.22 Filing an appeal and responses to appeals.
1201.23 Computation of time.
1201.24 Content of an appeal; right to hearing.
1201.25 Content of agency response.
1201.26 Number of pleadings, service, and response.
1201.27 Class appeals.
Parties, Representatives, and Witnesses
1201.31 Representatives.
1201.32 Witnesses; right to representation.
1201.33 Federal witnesses.
1201.34 Intervenors and amicus curiae.
1201.35 Substituting parties.
1201.36 Consolidating and joining appeals.
1201.37 Fees.
Judges
1201.41 Judges.
[[Page 7]]
(7
1201.42 Disqualifying a judge.
1201.43 Sanctions.
Hearings
1201.51 Scheduling the hearing.
1201.52 Public hearings.
1201.53 Verbatim record.
1201.54 Official record.
1201.55 Motions.
1201.56 Burden and degree of proof; affirmative defenses.
1201.57 Order of hearing.
1201.58 Closing the record.
Evidence
1201.61 Exclusion of evidence and testimony.
1201.62 Producing prior statements.
1201.63 Stipulations.
1201.64 Official notice.
Discovery
1201.71 Purpose of discovery.
1201.72 Explanation and scope of discovery.
1201.73 Discovery procedures.
1201.74 Orders for discovery.
1201.75 Taking depositions.
Subpoenas
1201.81 Requests for subpoenas.
1201.82 Motions to quash subpoenas.
1201.83 Serving subpoenas.
1201.84 Proof of service.
1201.85 Enforcing subpoenas.
Interlocutory Appeals
1201.91 Explanation.
1201.92 Criteria for certifying interlocutory appeals.
1201.93 Procedures.
Ex Parte Communications
1201.101 Explanation and definitions.
1201.102 Prohibition on ex parte communications.
1201.103 Placing communications in the record; sanctions.
Final Decisions
1201.111 Initial decision by judge.
1201.112 Jurisdiction of judge.
1201.113 Finality of decision.
Subpart C--Petitions for Review of Initial Decisions
1201.114 Filing petition and cross petition for review.
1201.115 Contents of petition for review.
1201.116 Appellant requests for enforcement of interim relief.
1201.117 Procedures for review or reopening.
1201.118 Board reopening of case and reconsideration of initial
decision.
1201.119 OPM petition for reconsideration.
1201.120 Judicial review.
Subpart D--Procedures for Original Jurisdiction Cases
Actions Brought by the Special Counsel
1201.121 Scope of jurisdiction; compliance with subpart B.
1201.122 Filing complaints and requests; serving documents on parties.
1201.123 Contents of complaint.
1201.124 Rights of employees.
1201.125 Answer to complaint.
1201.126 Final orders of the Board.
1201.127 Requesting stay of personnel action; protective orders.
1201.128 Administrative appeal; judicial review.
1201.129 Judge; exceptions and replies to exceptions.
Actions Against Administrative Law Judges
1201.131 Procedures.
1201.132 Board jurisdiction.
1201.133 Filing a complaint.
1201.134 Answer to complaint.
1201.135 Judge; exceptions and replies to exceptions.
1201.136 Requirement for finding of good cause.
Removal From the Senior Executive Service
1201.141 Right to hearing.
1201.142 Hearing procedures; referring the record.
1201.143 Appeal.
Subpart E--Procedures for Cases Involving Allegations of Discrimination
1201.151 Scope and policy.
1201.152 Compliance with subpart B procedures.
1201.153 Contents of appeal.
1201.154 Time for filing appeal; closing record in cases involving
grievance decisions.
1201.155 Remand of allegations of discrimination.
1201.156 Time for processing appeals involving allegations of
discrimination.
1201.157 Notice of right to judicial review.
Review of Board Decision
1201.161 Action by the Equal Employment Opportunity Commission;
judicial review.
1201.162 Board action on the Commission decision; judicial review.
1201.163 Mixed cases governed by Reorganization Plan No. 1 of 1978.
Special Panel
1201.171 Referral of case to Special Panel.
[[Page 8]]
(8
1201.172 Organization of Special Panel; designation of members.
1201.173 Practices and procedures of Special Panel.
1201.174 Enforcing the Special Panel decision.
1201.175 Judicial review of cases decided under 5 U.S.C. 7702.
Subpart F--Enforcement of Final Decisions and Orders
1201.181 Authority and explanation.
1201.182 Petition for enforcement.
1201.183 Procedures for processing petitions for enforcement.
Subpart G--Savings Provisions
1201.191 Savings provisions.
Appendix I to Part 1201--Merit Systems Protection Board Appeal Form
Appendix II to Part 1201--Appropriate Regional or Field Office for
Filing Appeals
Appendix III to Part 1201--Approved Hearing Locations by Regional Office
Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C. 1746
Authority: 5 U.S.C. 1204, and 7701 unless otherwise noted.
Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted.
Subpart A--Jurisdiction and Definitions
Sec. 1201.1 General.
The Board has two types of jurisdiction, original and appellate.
Sec. 1201.2 Original jurisdiction.
The Board's original jurisdiction includes the following cases:
(a) Actions brought by the Special Counsel;
(b) Requests, by persons removed from the Senior Executive Service
for performance deficiencies, for informal hearings; and
(c) Actions taken against administrative law judges under 5 U.S.C.
7521.
Sec. 1201.3 Appellate jurisdiction.
(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:
(1) Reduction in grade or removal for unacceptable performance (5
CFR part 432; 5 U.S.C. 4303(e));
(2) Removal, reduction in grade or pay, suspension for more than 14
days, or furlough for 30 days or less for cause that will promote the
efficiency of the service. (5 CFR part 752, subparts C and D; 5 U.S.C.
7512);
(3) Removal, or suspension for more than 14 days, of a career
appointee in the Senior Executive Service (5 CFR part 752, subparts E
and F; 5 U.S.C. 7541-7543);
(4) Reduction-in-force action affecting a career appointee in the
Senior Executive Service (5 U.S.C. 3595);
(5) Reconsideration decision sustaining a negative determination of
competence for a general schedule employee (5 CFR 531.410; 5 U.S.C.
5335(c));
(6) Determinations affecting the rights or interests of an
individual or of the United States under the Civil Service Retirement
System or the Federal Employees' Retirement System (5 CFR parts 831,
842, and 844; 5 U.S.C. 8347(d)(1)-(2) and 8461 (e)(1));
(7) Disqualification of an employee or applicant because of a
suitability determination (5 CFR 731.103(d) and 731.501);
(8) Termination of employment during probation or the first year of
a veterans readjustment appointment when:
(i) The employee alleges discrimination because of partisan
political reasons or marital status; or
(ii) The termination was based on conditions arising before
appointment and the employee alleges that the action is procedurally
improper (5 CFR 315.806, 38 U.S.C. 4214(b)(1)(E));
(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) Failure to restore a former employee to employment following
military service, or following partial or fu
[[Page 9]]
ll
[[Page 9]]
recovery from a compensable injury (38 U.S.C. 4324, 5 CFR 353.211 and
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).
(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.
(c) Limitations on appellate jurisdiction, collective bargaining
agreements, and election of procedures:
(1) For an employee covered by a collective bargaining agreement
under 5 U.S.C. 7121, the negotiated grievance procedures contained in
the agreement are the exclusive procedures for resolving any action that
could otherwise be appealed to the Board, with the following exceptions:
(i) An appealable action involving discrimination under 5 U.S.C.
2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or
adverse action under 5 U.S.C. 7512, may be raised under the Board's
appellate procedures, or under the negotiated grievance procedures, but
not under both;
(ii) Any appealable action that is excluded from the application of
the negotiated grievance procedures may be raised only under the Board's
appellate procedures.
(2) Choice of procedure. When an employee has an option of pursuing
an action under the Board's appeal procedures or under negotiated
grievance procedures, the Board considers the choice between those
procedures to have been made when the employee timely files an appeal
with the Board or timely files a written grievance, whichever event
occurs first.
(3) Review of discrimination grievances. If an employee chooses the
negotiated grievance procedure under paragraph (c)(2) of this section
and alleges discrimination as described at 5 U.S.C. 2302(b)(1), then the
employee, after having obtained a final decision under the negotiated
grievance procedure, may ask the Board to review that final decision.
The request must be filed with the Clerk of the Board in accordance with
Sec. 1201.154.
[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991;
59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996]
Sec. 1201.4 General definitions.
(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
[[Page 10]]
.
[[Page 10]]
(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]
Subpart B--Procedures for Appellate Cases
General
Sec. 1201.11 Scope and policy.
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.
Sec. 1201.12 Revocation, amendment, or waiver of rules.
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.
Sec. 1201.13 Appeals by Board employees.
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
[[Page 11]]
(11rule on any interlocutory appeals or motions to disqualify the
administrative law judge assigned to those cases until the initial
decision has been issued.
Appeal of Agency Action; Pleadings
Sec. 1201.21 Notice of appeal rights.
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) Notice of the time limits for appealing to the Board, the
requirements of Sec. 1201.22(c), and the address of the appropriate
Board office for filing the appeal;
(b) A copy, or access to a copy, of the Board's regulations;
(c) A copy of the appeal form in appendix I of this part; and
(d) Notice of any right the employee has to file a grievance.
Sec. 1201.22 Filing an appeal and responses to appeals.
(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. An appeal must be filed during the period
beginning on the day after the effective date of the action being
appealed and ending 30 days after the effective date. An appeal from a
final or reconsideration decision that does not set an effective date
must be filed within 35 days of the date of the issuance of the
decision. (Paragraphs (a) (5), (6), (7), (12), (13), (14), (15), (16),
(17), and (18) of Sec. 1201.3 of this part list actions covered by the
latter rule.) A response to an appeal must be filed within 20 days of
the date of the Board's acknowledgment order.
(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]
Sec. 1201.23 Computation of time.
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]
Sec. 1201.24 Content of an appeal; right to hearing.
(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:
(1) The name, address, and telephone number of the appellant, and
the name and address of the agency that took the action;
(2) A description of the action the agency took and its effective
date;
(3) A request for hearing if the appellant wants one;
(4) A statement of the reasons why the appellant believes the agency
action is wrong;
(5) A statement of the action the appellant would like the judge to
order;
(6) The name, address, and telephone number of the appellant's
representative, if the appellant has a representative;
(7) The notice of the decision to take the action being appealed,
along with any relevant documents;
(8) A statement telling whether the appellant or anyone acting on
his or her behalf has filed a grievance or a
[[Page 12]]
(12formal discrimination complaint with any agency regarding this
matter; and
(9) The signature of the appellant or, if the appellant has a
representative, of the representative.
(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.
Sec. 1201.25 Content of agency response.
The agency response to an appeal must contain the following:
(a) The name of the appellant and of the agency whose action the
appellant is appealing;
(b) A statement identifying the agency action taken against the
appellant and stating the reasons for taking the action;
(c) All documents contained in the agency record of the action;
(d) Designation of and signature by the authorized agency
representative; and
(e) Any other documents or responses requested by the Board.
Sec. 1201.26 Number of pleadings, service, and response.
(a) Number. The appellant must file two copies of both the appeal
and all attachments with the appropriate Board office.
(b) Service--(1) Service by the Board. The appropriate office of the
Board will mail a copy of the appeal to each party to the proceeding
other than the appellant. It will attach to each copy a service list,
consisting of a list of the names and addresses of the parties to the
proceeding or their designated representatives.
(2) Service by the parties. The parties must serve on each other one
copy of each pleading, as defined by Sec. 1201.4(b), and all documents
submitted with it, except for the initial appeal. They may do so by
mail, by facsimile, by personal delivery, or by commercial overnight
delivery to each party and to each representative. A certificate of
service stating how and when service was made must accompany each
pleading. The parties must notify the appropriate Board office and one
another, in writing, of any changes in the names or addresses on the
service list.
(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]
Sec. 1201.27 Class appeals.
(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 35 days after the
denial. Each individual appellant is responsible for either filing an
individual appeal within the original time lim
[[Page 13]]
it,
[[Page 13]]
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]
Parties, Representatives, and Witnesses
Sec. 1201.31 Representatives.
(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.
Sec. 1201.32 Witnesses; right to representation.
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.
Sec. 1201.33 Federal witnesses.
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).
Sec. 1201.34 Intervenors and amicus curiae.
(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. (1) The Director of the Office
of Personnel Management may intervene as a matter of right under 5
U.S.C. 7701(d)(1). The motion to intervene must be filed at the earliest
practicable time.
(2)(i) Except as provided in paragraph (b)(2)(ii) of this section,
the Special Counsel may intervene as a matter of right under 5 U.S.C.
1212(c). The motion to intervene must be filed at the earliest
practicable time.
(ii) The Special Counsel may not intervene in an action brought by
an individual under 5 U.S.C. 1221, or in an appeal brought by an
individual under 5 U.S.C. 7701, without the consent of that individual.
The Special Counsel must present evidence that the individual has
consented to the intervention at the time the motion to intervene is
filed.
(c) Permissive intervenors. (1) Any person, organization or agency
may, by motion, ask the judge for permission to
[[Page 14]]
intervene. The motion must explain the reason why the person,
organization or agency should be permitted to intervene.
(2) A motion for permission to intervene will be granted where the
requester 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 request permission to intervene. A judge's
denial of a motion for permissive intervention may be appealed to the
Board under Sec. 1201.91 of this part.
(d) Role of intervenors. Intervenors have the same rights and duties
as parties, with the following two exceptions:
(1) Intervenors do not have an independent right to a hearing; and
(2) Permissive intervenors may participate only on the issues
affecting them. The judge is responsible for determining the issues on
which permissive intervenors may participate.
(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.
Sec. 1201.35 Substituting parties.
(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.
Sec. 1201.36 Consolidating and joining appeals.
(a) Explanation. (1) Consolidation occurs when the appeals of two or
more parties are united for consideration because they contain identical
or similar issues. For example, individual appeals rising from a single
reduction in force might be consolidated.
(2) Joinder occurs when one person has filed two or more appeals and
they are united for consideration. For example, a judge might join an
appeal challenging a 30-day suspension with a pending appeal challenging
a subsequent dismissal if the same appellant filed both appeals.
(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:
(1) Expedite processing of the cases; and
(2) Not adversely affect the interests of the parties.
(c) Any objection to a motion for consolidation or joinder must be
filed within 10 days of the date of service of the motion.
Sec. 1201.37 Fees.
(a) Attorney fees. Except as provided in paragraphs (a)(1) and
(a)(2) of this section, the judge may require the agency to pay
reasonable attorney fees if the appellant is the prevailing party and
payment is warranted in the interest of justice.
(1) If an appellant is the prevailing party and the decision is
based on a finding of discrimination prohibited under 5 U.S.C.
2302(b)(1), the motion for an attorney fee award will be considered
under the standards of section 706(k) of the Civil Rights Act of 1964
(42 U.S.C. 2000e-5(k)).
(2) If an appellant is the prevailing party in an appeal and the
decision is based on the finding of any prohibited personnel practice
under 5 U.S.C. 2302(b), as provided by 5 U.S.C. 1221(g) the agency shall
be liable to the appellant for payment of reasonable attorney fees and
any other reasonable costs incurred.
(3) Any request for payment of attorney fees must be made by motion.
The motion must be filed with the judge within 30 days of the date on
which an initial decision becomes final under Sec. 1201.113 of this part
or within 35 days of the date of issuance of a final decision under
Sec. 1201.117. The appellant must serve a copy of the motion on the
[[Page 15]]
agency. The agency may file a pleading responding to that motion within
the time limit set by the judge. The motion must state why the appellant
believes he or she is entitled to an award under the applicable
statutory standard, and must be supported by evidence substantiating the
amount of the request. That evidence must include, at a minimum:
(i) Accurate and current time records;
(ii) A copy of the terms of the fee agreement (if any); and
(iii) The attorney's customary billing rate for similar work if the
attorney has a billing practice or, in the absence of that practice,
other evidence of the prevailing community rate that will establish a
market value for the attorney's services. A petition for Board review of
the judge's decision on the motion must be filed within 35 days of the
date of that decision, and must comply with Sec. 1201.114 of this part.
(b) Witness fees--(1) 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.
(2) 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.
(3) 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]
Judges
Sec. 1201.41 Judges.
(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 the hearing for good reason;
(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
[[Page 16]]
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.
Sec. 1201.42 Disqualifying a judge.
(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.
Sec. 1201.43 Sanctions.
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:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) Prohibit the party failing to comply with the order from
introducing evidence concerning the information sought, or from
otherwise relying upon testimony related to that information;
(3) Permit the requesting party to introduce secondary evidence
concerning the information sought; and
(4) Eliminate from consideration any appropriate part of the
pleadings or other submissions of the party that fails to comply with
the order.
(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.
Hearings
Sec. 1201.51 Scheduling the hearing.
(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
[[Page 17]]
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.
Sec. 1201.52 Public hearings.
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.
Sec. 1201.53 Verbatim 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.
Sec. 1201.54 Official record.
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.
Sec. 1201.55 Motions.
(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, and unless the
motion is one for payment of attorney fees under Sec. 1201.37(a) of this
part, 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.
[[Page 18]]
Sec. 1201.56 Burden and degree of proof; affirmative defenses.
(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:
(i) It is brought under 5 U.S.C. 3592(a)(3), 5 U.S.C. 4303 or 5
U.S.C. 5335 and is supported by substantial evidence; or
(ii) It is brought under any other provision of law or regulation
and is supported by a preponderance of the evidence.
(2) Appellant. The appellant has the burden of proof, by a
preponderance of the evidence, with respect to:
(i) Issues of jurisdiction;
(ii) The timeliness of the appeal; and
(iii) Affirmative defenses.
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:
(1) Shows harmful error in the application of the agency's
procedures in arriving at its decision;
(2) Shows that the decision was based on any prohibited personnel
practice described in 5 U.S.C. 2302(b); or
(3) Shows that the decision was not in accordance with law.
(c) Definitions. The following definitions apply to this part:
(1) Substantial evidence. The degree of relevant evidence that a
reasonable person, considering the record as a whole, might accept as
adequate to support a conclusion, even though other reasonable persons
might disagree. This is a lower standard of proof than preponderance of
the evidence.
(2) Preponderance of the evidence. The degree of relevant evidence
that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be
true than untrue.
(3) Harmful error. Error by the agency in the application of its
procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence
or cure of the error. The burden is upon the appellant to show that the
error was harmful, i.e., that it caused substantial harm or prejudice to
his or her rights.
[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991]
Sec. 1201.57 Order of hearing.
(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:
(1) Jurisdiction;
(2) Timeliness; or
(3) Office of Personnel Management disallowance of retirement
benefits, when the appellant applied for those benefits.
(c) The judge may vary the normal order of presenting evidence.
Sec. 1201.58 Closing the record.
(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.
[[Page 19]]
Evidence
Sec. 1201.61 Exclusion of evidence and testimony.
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.
Sec. 1201.62 Producing prior statements.
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.
Sec. 1201.63 Stipulations.
The parties may stipulate to any matter of fact. The stipulation
will satisfy a party's burden of proving the fact alleged.
Sec. 1201.64 Official notice.
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.
Discovery
Sec. 1201.71 Purpose of discovery.
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.
Sec. 1201.72 Explanation and scope of discovery.
(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.
Sec. 1201.73 Discovery procedures.
(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
[[Page 20]]
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. (1) A party, or a Federal
agency that is not a party, must answer a discovery request within the
time provided under paragraph (d)(2) of this section, either by
furnishing to the requesting party the information or testimony
requested or agreeing to make deponents available to testify within a
reasonable time, or by stating an objection to the particular request
and the reasons for the objection.
(2) If a party fails or refuses to respond in full to a discovery
request, or if a nonparty fails or refuses to respond in full to a
Board-approved discovery order, the requesting party may file a motion
to compel discovery. The requesting party must file the motion with the
judge, and must serve a copy of the motion on the other party and on any
nonparty entity or person from whom the discovery was sought. The motion
must be accompanied by:
(i) A copy of the original request and a statement showing that the
information sought is relevant and material; and
(ii) A copy of the response to the request (including the objections
to discovery) or, where appropriate, a statement that no response has
been received, along with an affidavit or sworn statement under 28
U.S.C. 1746 supporting the statement. (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
[[Page 21]]
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.
Sec. 1201.74 Orders for discovery.
(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:
(1) A provision that the person to be deposed must be notified of
the time and place of the deposition;
(2) Any conditions or limits concerning the conduct or scope of the
proceedings or the subject matter that may be necessary to prevent undue
delay or to protect a party or other individual or entity from undue
expense, embarrassment, or oppression;
(3) Limits on the time for conducting depositions, answering written
interrogatories, or producing documentary evidence; and
(4) Other restrictions upon the discovery process that the judge
sets.
(c) Noncompliance. The judge may impose sanctions under Sec. 1201.43
of this part for failure to comply with an order compelling discovery.
Sec. 1201.75 Taking depositions.
Depositions may be taken by any method agreed upon by the parties.
The person providing information is subject to penalties for intentional
false statements.
Subpoenas
Sec. 1201.81 Requests for subpoenas.
(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.
Sec. 1201.82 Motions to quash subpoenas.
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.
Sec. 1201.83 Serving subpoenas.
(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.
Sec. 1201.84 Proof of service.
The person who has served the subpoena must certify that he or she
did so:
(a) By delivering it to the witness in person,
(b) By registered or certified mail, or
(c) By delivering the subpoena to a responsible person (named in the
document certifying the delivery) at the
[[Page 22]]
residence or place of business (as appropriate) of the person for whom
the subpoena was intended.
The document in which the party makes this certification also must
include a statement that the prescribed fees have been paid or offered.
Sec. 1201.85 Enforcing subpoenas.
(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).
Interlocutory Appeals
Sec. 1201.91 Explanation.
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.
Sec. 1201.92 Criteria for certifying interlocutory appeals.
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.
Sec. 1201.93 Procedures.
(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
Secs. 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.
[[Page 23]]
Ex Parte Communications
Sec. 1201.101 Explanation and definitions.
(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.
(1) Interested party includes:
(i) Any party or representative of a party involved in a proceeding
before the Board; and
(ii) Any other person who might be affected by the outcome of a
proceeding before the Board.
(2) Decision-making official means any judge, officer or other
employee of the Board designated to hear and decide cases.
Sec. 1201.102 Prohibition on ex parte communications.
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.
Sec. 1201.103 Placing communications in the record; sanctions.
(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:
(1) Parties. The offending party may be required to show why, in the
interest of justice, the claim or motion should not be dismissed,
denied, or otherwise adversely affected.
(2) Board personnel. Offending Board personnel will be treated in
accordance with the Board's standards of conduct.
(3) Other persons. The Board may invoke appropriate sanctions
against other offending parties.
Final Decisions
Sec. 1201.111 Initial decision by judge.
(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:
(1) Findings of fact and conclusions of law upon all the material
issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) An order making final disposition of the case, including
appropriate relief;
(4) A statement, if the appellant is the prevailing party, as to
whether interim relief is provided effective upon the date of the
decision, pending the outcome of any petition for review filed by
another party under subpart C of this part;
(5) The date upon which the decision will become final (a date that,
for purposes of this section, is 35 days after issuance); and
(6) A statement of any further process available, including, as
appropriate, a petition for enforcement under
[[Page 24]]
Sec. 1201.182 of this part, a petition for review under Sec. 1201.114,
and a petition for judicial review.
(c) Interim relief. 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.
Sec. 1201.112 Jurisdiction of judge.
(a) After issuing the initial decision, the judge will retain
jurisdiction over a case only to the extent necessary to:
(1) Correct the transcript, when one is obtained;
(2) Rule on motions for exception to the requirement that a party
seeking a transcript must pay for it;
(3) Rule on a request by the appellant for attorney fees;
(4) Process any petition for enforcement filed under subpart F of
this part;
(5) Vacate an initial decision before that decision becomes final
under Sec. 1201.113 in order to accept a settlement agreement into the
record.
(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]
Sec. 1201.113 Finality of decision.
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 35-day 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.
Subpart C--Petitions for Review of Initial Decisions
Sec. 1201.114 Filing petition and cross petition for review.
(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
[[Page 25]]
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:
(1) The reasons for failing to request an extension before the
deadline for the submission; and
(2) A specific and detailed description of the circumstances causing
the late filing, accompanied by supporting documentation or other
evidence.
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--(1) By Director of OPM. The Director of OPM may
intervene in a case before the Board under the standards stated in 5
U.S.C. 7701(d). The notice of intervention is timely if it is filed with
the Clerk of the Board within 45 days of the date the petition for
review was filed. If the Director requests additional time for filing a
brief on intervention, the Board may, in its discretion, grant the
request. A party may file a response to the Director's brief within 15
days of the date of service of that brief. The Director must serve the
notice of intervention and the brief on all parties.
(2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special
Counsel may intervene as a matter of right, except as provided in
paragraph (g)(2)(ii) of this section. The notice of intervention is
timely if it is filed with the Clerk of the Board within 45 days of the
date the petition for review was filed. If the Special Counsel requests
additional time for filing a brief on intervention, the Board may, in
its discretion, grant the request. A party may file a response to the
Special Counsel's brief within 15 days of the date of service. The
Special Counsel must serve the notice of intervention and the brief on
all parties.
(ii) The Special Counsel may not intervene in an action brought by
an individual under 5 U.S.C. 1221, or in an appeal brought by an
individual under 5 U.S.C. 7701, without the consent of that individual.
The Special Counsel must present evidence that the individual has
consented to the intervention at the time the motion to intervene is
filed.
(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
[[Page 26]]
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]
Sec. 1201.115 Contents of petition for review.
(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 evidence that the agency has provided the interim
relief required, except when the agency has made a determination as
described in paragraph (b)(2) of this section. The agency may comply by
submitting an SF 50 or SF 52, a letter from an agency official directing
the appellant to return to work and informing the appellant of his or
her reinstatement as of the date of the initial decision, or an
affidavit or declaration specifying the manner of the agency's
compliance. The interim relief must be effected retroactively to the
date of the initial decision. Cancellation of the appealed action or
relief effected retroactively to the date of the action will result in
dismissal of the agency's petition for mootness.
(2) Under 5 U.S.C. 7701(b)(2), if the initial decision provides
interim relief which requires that the appellant be returned to his or
her place of employment pending the outcome of any petition for review
and the agency determines that the return or presence of the appellant
will be unduly disruptive to the work environment, the agency must
notify both the appellant and the judge in writing. The agency must also
provide evidence of such notification to the Board at the time of filing
a petition or cross petition for review. The evidence must show that the
agency has provided that the appellant will receive appropriate pay,
compensation, and all other benefits as terms and conditions of
employment from the date of the initial decision until a final decision
is issued.
(3) Nothing in paragraphs (b)(1) or (b)(2) 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.
(4) Failure of the agency to submit evidence that it has complied
with the granting of interim relief in accordance with paragraph (b)(1)
of this section, or that it has provided notification that interim
relief will not be granted fully in accordance with paragraph (b)(2) of
this section, will result in the dismissal of the agency's petition or
cross petition for review.
(c) If an appellant or an intervenor files a petition or cross
petition for review of an initial decision ordering interim relief, upon
order of the Clerk of the Board the agency must submit evidence that it
has provided the interim relief required (or, where applicable, the
evidence specified in paragraph (b)(2) of this section), and it must
submit the name of the official responsible for compliance. The agency's
failure to submit acceptable evidence of compliance with the interim
relief order is a basis for the Board to order the withholding of the
salary of the responsible official pursuant to 5 U.S.C. 1204(e)(2)(A)
and 5 CFR 1201.183(c). This sanction is in addition to the dismissal of
an agency petition or cross petition for review provided for in
paragraph (b)(4) of this section.
[[Page 27]]
(d) The Board, after providing the other parties with an opportunity
to respond, may grant a petition for review when it is established that:
(1) New and material evidence is available that, despite due
diligence, was not available when the record closed; or
(2) The decision of the judge is based on an erroneous
interpretation of statute or regulation.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 30863, June 16, 1994]
Sec. 1201.116 Appellant requests for enforcement of interim relief.
(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]
Sec. 1201.117 Procedures for review or reopening.
(a) In any case that is reopened or reviewed, the Board may:
(1) Issue a single decision that denies or grants a petition for
review, reopens the appeal, and decides the case;
(2) Hear oral arguments;
(3) Require that briefs be filed;
(4) Remand the appeal so that the judge may take further testimony
or evidence or make further findings or conclusions; or
(5) Take any other action necessary for final disposition of the
case.
(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]
Sec. 1201.118 Board reopening of case and reconsideration of initial decision.
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]
Sec. 1201.119 OPM petition for reconsideration.
(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:
(1) That the Board erred in interpreting a civil service law, rule,
or regulation affecting personnel management, and
(2) That the Board's decision will have a substantial impact on a
civil service law, rule, regulation, or policy directive.
(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
[[Page 28]]
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]
Sec. 1201.120 Judicial review.
Any employee or applicant for employment who is adversely affected
by a final order or decision of the Board under the provisions of 5
U.S.C. 7703 may obtain judicial review 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]
Subpart D--Procedures for Original Jurisdiction Cases
Actions Brought by the Special Counsel
Sec. 1201.121 Scope of jurisdiction; compliance with subpart B.
(a) Scope. The Board has original jurisdiction over actions brought
by the Special Counsel and over the Special Counsel's requests for stays
of certain personnel actions.
(b) Compliance with subpart B. Except as otherwise expressly
provided by this subpart, the Special Counsel will comply with the
regulations regarding hearing procedures that are set out in subpart B
of this part in connection with all complaints or requests he or she
files with the Board.
Sec. 1201.122 Filing complaints and requests; serving documents on parties.
(a) Initial filing. The Special Counsel must file two copies of each
complaint or request, together with numbered and tabbed exhibits or
attachments, if any, with the Clerk of the Board. In addition, he or she
must file with that office, for service by the Board in accordance with
paragraph (b) of this section, a sufficient number of copies of
complaints or requests, together with numbered and tabbed exhibits and a
certified list of parties or their representatives. The list must show
the last known address of each party or representative.
(b) Service by the Board. The Board will mail copies of complaints
and requests to the parties to the proceeding, or their representatives,
at their last known addresses. It also will mail them any exhibits or
attachments to the complaints and requests, along with copies of the
pertinent regulations of the Board.
(c) Subsequent filings and service. Each party must serve on every
other party one copy of each of its pleadings, as defined by
Sec. 1201.4(b). Service may be by mail, by facsimile, by commerical
overnight delivery, or by personal delivery to each party on the service
list previously provided by the Board. A certificate of service
describing how and when service was made must accompany each pleading.
All parties are responsible for notifying the Board and one another in
writing of any changes in the names or addresses on the service list.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994]
Sec. 1201.123 Contents of complaint.
(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
stating with particularity any alleged violations of law or regulation,
along with the supporting facts.
(1) Action to require an agency to correct a prohibited personnel
practice
[[Page 29]]
(or a pattern of prohibited personnel practices) under 5 U.S.C.
1214(b)(4);
(2) Action to discipline an employee under 5 U.S.C. 1215(a);
(3) Action with respect to other matters within the jurisdiction of
the Special Counsel under 5 U.S.C. 1216; and
(4) Action to discipline an employee under the Federal Employees
Flexible and Compressed Work Schedule Act, 5 U.S.C. 6101.
(b) The Board may order the Special Counsel and the responding party
to file briefs, memoranda, or both in any action the Special Counsel
brings before the Board.
(c) If the Special Counsel files a corrective action with the Board
on behalf of an employee, former employee, or applicant for employment
who has sought corrective action from the Board directly under 5 U.S.C.
1214(a)(3), the Special Counsel must provide evidence that the employee,
former employee, or applicant has consented to the Special Counsel's
seeking corrective action. 5 U.S.C. 1214(a)(4).
Sec. 1201.124 Rights of employees.
(a) When the Special Counsel files a complaint seeking corrective
action under 5 U.S.C. 1214(b)(2)(B), the Board shall provide the
individual alleged to have been the subject of the prohibited personnel
practice the opportunity to make written comments.
(b) When the Special Counsel files a complaint proposing a
disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the
employee has the right:
(1) To file an answer, supported by affidavits and documentary
evidence;
(2) To be represented;
(3) To a hearing on the record before the Board or an administrative
law judge;
(4) To a written Board decision, issued at the earliest practicable
date, in which the Board states the reasons for its conclusion; and
(5) To a copy of any final order imposing disciplinary action.
Sec. 1201.125 Answer to complaint.
(a) Filing and default. A party named in a Special Counsel complaint
may file an answer with the Clerk of the Board within 35 days of the
date of service of the complaint. If a party fails to answer, and does
not show good cause for that failure, the failure will constitute waiver
of the right to contest the allegations in the complaint. Unanswered
allegations are considered admitted and will form the basis of a
recommended or final decision as appropriate.
(b) Content. An answer must contain a specific denial, admission, or
explanation of each fact alleged in the complaint. If the respondent has
no knowledge of a fact, he or she must say so. The respondent may
include statements of fact and appropriate documentation to support each
denial or defense. Allegations that are unanswered or admitted in the
answer are considered true and may not be denied later.
Sec. 1201.126 Final orders of the Board.
(a) In any action seeking correction of a prohibited personnel
practice, the Board may order the corrective actions it considers
appropriate after providing an opportunity for the Special Counsel, the
agency, and the Office of Personnel Management to comment. 5 U.S.C.
1214(b)(4)(A).
(b)(1) Subject to the provisions of paragraph (b)(2) of this
section, in any case involving an alleged prohibited personnel practice
described in 5 U.S.C. 2302(b)(8), the Board will order such corrective
action as the Board considers appropriate if the Special Counsel
demonstrates that a disclosure described under 5 U.S.C. 2302(b)(8) was a
contributing factor in the personnel action that was taken or will be
taken against the individual.
(2) Corrective action under paragraph (b)(1) of this section may not
be ordered if the agency demonstrates by clear and convincing evidence
that it would have taken the same personnel action in the absence of
such disclosure. 5 U.S.C. 1214(b)(4)(B).
(c) In any action to discipline an employee, except as provided in
paragraphs (e) and (f) of this section, the Board may order a removal, a
reduction in grade, a debarment (not to exceed five years), a
suspension, a reprimand, or an assessment of civil penalty not to exceed
$1,100. 5 U.S.C. 1215(a)(3).
[[Page 30]]
(d) If a State or local agency fails to remove an employee whose
removal is found to be warranted by the Board under 5 U.S.C. 1505, or if
it reappoints such an employee within 18 months of a Board's final order
finding that removal was warranted, the Board may order the Federal
agency administering loans or grants to the State or local agency, to
withhold money from the agency. The amount to be withheld will not
exceed two years of the offending employee's pay at the rate he or she
was being paid at the time of the violation. 5 U.S.C. 1506.
(e) In any action to discipline an employee under the Federal
Employees Flexible and Compressed Work Schedule Act, 5 U.S.C. 6101, a
final order of the Board may impose disciplinary action consisting of:
(1) Removal from Federal employment for any period of time the Board
may prescribe;
(2) Suspension; or
(3) Other discipline that the Board considers appropriate.
(f) In any action in which the Board finds that an employee has
violated 5 U.S.C. 7324, the Board will order the employee's removal,
unless it finds by unanimous vote that the violation does not warrant
removal and imposes instead a penalty of not less than 30 days
suspension without pay.
[54 FR 53504, Dec. 29, 1989, as amended at 61 FR 49049, Sept. 18, 1996]
Sec. 1201.127 Requesting stay of personnel action; protective orders.
Under 5 U.S.C. 1214(b)(1), the Special Counsel may ask a member of
the Board to stay any personnel action if he or she determines that
there are reasonable grounds to believe that the action was taken or
will be taken as a result of a prohibited personnel practice.
(a) Content of request. The Special Counsel, or that official's
representative, must sign each request, and must include the following
information in the request:
(1) The names of the parties;
(2) The agency and officials involved;
(3) The nature of the action to be stayed;
(4) A concise statement of facts justifying the charge that the
personnel action was or will be the result of a prohibited personnel
practice; and
(5) The laws or regulations that were violated, or that will be
violated if the stay is not issued.
(b) Filing and serving of request. The request for a stay must be
filed and served on all parties in accordance with Sec. 1201.122 of this
part.
(c) Action on the request for stay--(1) Initial stay. Within three
days after the filing of a request, excluding Saturdays, Sundays, and
Federal holidays, any member of the Board will grant a request for a
stay of 45 days under 5 U.S.C. 1214(b)(1)(A) unless the Member
determines that, under the facts and circumstances, the requested stay
would not be appropriate. Unless the stay is denied within the 3-day
period, it is considered granted by operation of law.
(2) Extension of stay. Upon the Special Counsel's request, the Board
may extend any stay granted under 5 U.S.C. 1214(b)(1)(A) for whatever
time it considers appropriate, but only after providing the Special
Counsel and the agency with an opportunity to comment on the request,
and only after the Board has concurred in the request of the Special
Counsel. At the time he or she files a request for an extension of a
stay under 5 U.S.C. 1214(b)(1)(B), the Special Counsel must also file a
brief describing the facts and any relevant legal authority that the
Board should consider. The agency must respond in accordance with any
order of the Board.
(3) Reports during pendency of a stay. If the Board grants an
extension of the initial stay, the Special Counsel must report to the
Board, at intervals specified in the order granting extension of the
stay, regarding the status of the case. Such reports will continue to be
required until the Special Counsel files a corrective action with the
Board or requests termination of the stay, or until the stay expires
according to its terms.
(4) Termination of stay. The Board may terminate a stay at any time,
except it may not terminate a stay:
(i) On its own motion or on the motion of an agency without first
providing notice and opportunity for oral or
[[Page 31]]
written comments to the Special Counsel and the individual on whose
behalf the stay was ordered; or
(ii) On the motion of the Special Counsel without first providing
notice and opportunity for oral or written comments to the individual on
whose behalf the stay was ordered.
(d) Additional information. At any time, the Board or, where
appropriate, a member of the Board may require the Special Counsel, the
agency, or both to appear and present further information or explanation
regarding a request for a stay, to file supplemental briefs or
memoranda, or to supply factual information that the Board needs in
order to make a decision regarding a stay.
(e) Protective orders. The Board, during an investigation by the
Special Counsel or during the pendency of any Special Counsel proceeding
before the Board, may issue any order that may be necessary to protect a
witness or other individual from harassment. The Special Counsel must
submit any motion for a protective order to the Clerk of the Board. The
motion must include a concise statement of the reasons justifying the
request, together with any relevant documentary evidence. An agency,
other than the Office of the Special Counsel, may not request a
protective order with respect to an investigation by the Special Counsel
during such 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.
Sec. 1201.128 Administrative appeal; judicial review.
(a) A party in a Special Counsel complaint does not have the right
to file an administrative appeal from an order of the Board.
(b) An employee, former employee, or applicant for employment who is
adversely affected by an order of the Board resulting from a corrective
action brought by the Special Counsel may obtain judicial review of the
order of the Board in the United States Court of Appeals for the Federal
Circuit. 5 U.S.C. 1214(c).
(c) An employee subject to a final order imposing disciplinary
action under 5 U.S.C. 1215 may obtain judicial review of the order of
the Board in the United States Court of Appeals for the Federal Circuit.
5 U.S.C. 1215(a)(4).
Sec. 1201.129 Judge; exceptions and replies to exceptions.
(a) Except for requests for stays under 5 U.S.C. 1214(b)(1), and
other matters specifically reserved for hearing by the Board, an action
brought by the Special Counsel is heard by an administrative law judge,
who will issue a recommended decision to the Board in accordance with 5
U.S.C. 557. Unless directed otherwise, the parties must file all
pleadings with the Clerk of the Board.
(b) 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 exceptions must be filed within 35 days after the date of
service of the recommended decision.
(c) The parties may file replies to exceptions within 25 days after
the date of service of the exceptions, as that date is determined by the
certificate of service.
(d) No additional evidence will be accepted with a party's
exceptions or with a reply to exceptions unless the party submitting it
shows that the evidence was not readily available before the
administrative law judge closed the record.
Actions Against Administrative Law Judges
Sec. 1201.131 Procedures.
When an agency proposes an action against an administrative law
judge, the procedures established under subpart B will apply to the
hearing, unless these regulations expressly provide otherwise. Initial
and subsequent pleadings, however, must be filed and served in
accordance with Sec. 1201.122 of this subpart.
Sec. 1201.132 Board jurisdiction.
The jurisdiction of the Board under this section is limited to
proposals to take the following actions:
(a) Removal;
(b) Suspension;
(c) Reduction in grade;
(d) Reduction in pay; and
[[Page 32]]
(e) Furlough of 30 days or less.
Sec. 1201.133 Filing a complaint.
To initiate an action against an administrative law judge, an agency
must file a complaint with the Board describing with particularity the
facts that support the proposed action.
Sec. 1201.134 Answer to complaint.
The administrative law judge against whom the complaint is filed may
file an answer to the complaint. The answer must comply with the
timeliness and other requirements of Sec. 1201.125 of this subpart.
Sec. 1201.135 Judge; exceptions and replies to exceptions.
(a) Unless it is specifically reserved for hearing by the Board, an
action by an employing agency against an administrative law judge will
be heard by an administrative law judge, who will issue a recommended
decision in accordance with 5 U.S.C. 557. All pleadings in those actions
must be filed with the Clerk of the Board.
(b) The parties may file with the Clerk of the Board any exceptions
they have to the recommended decision of the administrative law judge.
Those exceptions must be filed within 35 days after the date on which
the administrative law judge issues the recommended decision.
(c) The parties may file replies to exceptions within 25 days from
the date of service of the exceptions.
Sec. 1201.136 Requirement for finding of good cause.
The Board will authorize the agency to take a disciplinary action,
and will specify the penalty to be imposed, only after the Board has
made a finding of good cause as required by 5 U.S.C. 7521.
Removal From the Senior Executive Service
Sec. 1201.141 Right to hearing.
If an agency proposes to remove a career appointee from the Senior
Executive Service under 5 CFR 359.502, and to place that employee in
another civil service position, the appointee may request an informal
hearing before an official appointed by the Board. If the appointee
files the request with the Office of the Clerk at least 15 days before
the effective date of the proposed removal, the request will be granted.
Sec. 1201.142 Hearing procedures; referring the record.
The appointee, the appointee's representative, or both may appear
and present arguments in an informal hearing before the Board or its
designee. A verbatim record of the proceeding will be made. The
appointee has no other procedural rights before the Board. The Board
will refer a copy of the record to the Special Counsel, the Office of
Personnel Management, and the employing agency for whatever action may
be appropriate.
Sec. 1201.143 Appeal.
There is no right under 5 U.S.C. 7703 to appeal the agency's or
Board's actions in cases arising under Sec. 1201.141 of this part. The
removal action will not be delayed as a result of the hearing.
Subpart E--Procedures for Cases Involving Allegations of Discrimination
Sec. 1201.151 Scope and policy.
(a) Scope. (1) The rules in this subpart implement 5 U.S.C. 7702.
They apply to any case in which an employee or applicant for employment
alleges that a personnel action appealable to the Board was based, in
whole or in part, on prohibited discrimination.
(2) ``Prohibited discrimination,'' as that term is used in this
subpart, means discrimination prohibited by:
(i) Section 717 of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e-16(a));
(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 206(d));
(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 791);
(iv) Sections 12 and 15 of the Age Discrimination in Employment Act
of 1967, as amended (29 U.S.C. 631, 633a); or
(v) Any rule, regulation, or policy directive prescribed under any
provision of law described in paragraphs (a)(2) (i) through (iv) of this
section.
(b) Policy. The Board's policy is to adjudicate impartially,
thoroughly, and
[[Page 33]]
fairly all issues raised under this subpart.
Sec. 1201.152 Compliance with subpart B procedures.
Unless this subpart expressly provides otherwise, all actions
involving allegations of prohibited discrimination must comply with the
regulations that are included in subpart B of this part.
Sec. 1201.153 Contents of appeal.
(a) Contents. An appeal raising issues of prohibited discrimination
must comply with Sec. 1201.24 of this part, with the following
exceptions:
(1) The appeal must state that there was discrimination in
connection with the matter appealed, and it must state specifically how
the agency discriminated against the appellant; and
(2) The appeal must state whether the appellant has filed a formal
discrimination complaint or a grievance with any agency. If he or she
has done so, the appeal must state the date on which the appellant filed
the complaint or grievance, and it must describe any action that the
agency took in response to the complaint or grievance.
(b) Use of form. Completing the form in appendix I of these
regulations constitutes compliance with paragraph (a) of this section.
Sec. 1201.154 Time for filing appeal; closing record in cases involving grievance decisions.
Appellants who file appeals raising issues of prohibited
discrimination in connection with a matter otherwise appealable to the
Board must comply with the following time limits:
(a) Where the appellant has been subject to an action appealable to
the Board, he or she may either file a timely complaint of
discrimination with the agency or file an appeal with the Board within
30 days after the effective date of the agency action being appealed.
(b) If the appellant has filed a timely formal complaint of
discrimination with the agency:
(1) An appeal must be filed within 30 days after the appellant
receives the agency resolution or final decision on the discrimination
issue; or
(2) If the agency has not resolved the matter or issued a final
decision on the formal complaint within 120 days, the appellant may
appeal the matter directly to the Board at any time after the expiration
of 120 calendar days.
(c) If the appellant files an appeal prematurely under this subpart,
the judge will dismiss the appeal without prejudice to its later
refiling under Sec. 1201.22 of this part. If holding the appeal for a
short time would allow it to become timely, the judge may hold the
appeal rather than dismiss it.
(d) If the appellant has filed a grievance with the agency under its
negotiated grievance procedure in accordance with 5 U.S.C. 7121, he or
she may ask the Board to review the final decision under 5 U.S.C. 7702
within 35 days of the date of issuance of that decision. The appellant
must file the request with the Clerk of the Board, Merit Systems
Protection Board, Washington, DC 20419. The request for review must
contain:
(1) A statement of the grounds on which review is requested;
(2) References to evidence of record or rulings related to the
issues before the Board;
(3) Arguments in support of the stated grounds that refer
specifically to relevant documents, and that include relevant citations
of authority; and
(4) Legible copies of the final grievance or arbitration decision,
the agency decision to take the action, and other relevant documents.
Those documents may include a transcript or tape recording of the
hearing.
(e) The record will close upon expiration of the period for filing
the response to the 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 59 FR 31109, June 17, 1994]
Sec. 1201.155 Remand of allegations of discrimination.
If the parties file a written agreement that the discrimination
issue should be remanded to the agency for
[[Page 34]]
consideration, and if the judge determines that action would be in the
interest of justice, the judge may take that action. The remand order
will specify a time period within which the agency action must be
completed. In no instance will that time period exceed 120 days. While
the issue is pending with the agency, the judge will retain jurisdiction
over the appeal.
Sec. 1201.156 Time for processing appeals involving allegations of discrimination.
(a) Issue raised in appeal. When an appellant alleges prohibited
discrimination in the appeal, the judge will decide both the issue of
discrimination and the appealable action within 120 days after the
appeal is filed.
(b) Issue not raised in appeal. When an appellant has not alleged
prohibited discrimination in the appeal, but has raised the issue later
in the proceeding, the judge will decide both the issue of
discrimination and the appealable action within 120 days after the issue
is raised.
(c) Discrimination issue remanded to agency. When the judge remands
an issue of discrimination to the agency, adjudication will be completed
within 120 days after the agency completes its action and returns the
case to the Board.
Sec. 1201.157 Notice of right to judicial review.
Any final decision of the Board under 5 U.S.C. 7702 will notify the
appellant of his or her right, within 30 days after receiving the
Board's final decision, to petition the Equal Employment Opportunity
Commission to consider the Board's decision, or to file a civil action
in an appropriate United States district court. If an appellant elects
to waive the discrimination issue, an appeal may be filed with the
United States Court of Appeals for the Federal Circuit as stated in
Sec. 1201.119 of this part.
Review of Board Decision
Sec. 1201.161 Action by the Equal Employment Opportunity Commission; judicial review.
(a) Time limit for determination. In cases in which an appellant
petitions the Equal Employment Opportunity Commission (Commission) for
consideration of the Board's decision under 5 U.S.C. 7702(b)(2), the
Commission will determine, within 30 days after the date of the
petition, whether it will consider the decision.
(b) Judicial review. The Board's decision will become judicially
reviewable on:
(1) The date on which the decision is issued, if the appellant does
not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or
(2) The date of the Commission's decision that it will not consider
the petition filed under 5 U.S.C. 7702(b)(2).
(c) Commission processing and time limits. If the Commission decides
to consider the decision of the Board, within 60 days after making its
decision it will complete its consideration and either:
(1) Concur in the decision of the Board; or
(2) Issue in writing and forward to the Board for its action under
Sec. 1201.162 of this subpart another decision, which differs from the
decision of the Board to the extent that the Commission finds that, as a
matter of law:
(i) The decision of the Board constitutes an incorrect
interpretation of any provision of any law, rule, regulation, or policy
directive related to prohibited discrimination; or
(ii) The evidence in the record as a whole does not support the
decision involving that provision.
(d) Transmittal of record. The Board will transmit a copy of its
record to the Commission upon request.
(e) Development of additional evidence. When asked by the Commission
to do so, the Board or a judge will develop additional evidence
necessary to supplement the record. This action will be completed within
a period that will permit the Commission to make its decision within the
statutory 60-day time limit referred to in paragraph (c) of this
section. The Board or the judge may schedule additional proceedings if
necessary in order to comply with the Commission's request.
(f) Commission concurrence in Board decision. If the Commission
concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the
appellant may
[[Page 35]]
file suit in an appropriate United States district court.
Sec. 1201.162 Board action on the Commission decision; judicial review.
(a) Board decision. Within 30 days after receipt of a decision of
the Commission issued under 1201.161(c)(2), the Board shall consider the
decision and:
(1) Concur and adopt in whole the decision of the Commission; or
(2) To the extent that the Board finds that, as a matter of law:
(i) The Commission decision is based on an incorrect interpretation
of any provision of any civil service law, rule, regulation, or policy
directive, or
(ii) The evidence in the record as a whole does not support the
Commission decision involving that provision, it may reaffirm the
decision of the Board. In doing so, it may make revisions in the
decision that it determines are appropriate.
(b) Judicial review. If the Board concurs in or adopts the decision
of the Commission under paragraph (a)(1) of this section, the decision
of the Board is a judicially reviewable action.
Sec. 1201.163 Mixed cases governed by Reorganization Plan No. 1 of 1978.
(a) Definitions--(1) Prohibited discrimination as used in this
section means discrimination prohibited by section 717 of the Civil
Rights Act of 1964, as amended (42 U.S.C. 2000e-16(c)); section 501 of
the Rehabilitation Act of 1973, as amended (29 U.S.C. 791); and sections
12 and 15 of the Age Discrimination in Employment Act of 1967, as
amended (29 U.S.C. 631, 633a).
(2) Initial decision as used in this section means a decision
rendered by a judge of the MSPB pursuant to 29 CFR part 1613 or 5 CFR
part 772 (as in effect prior to January 11, 1979) on an appeal in which
issues of prohibited discrimination have been raised.
(3) Preliminary decision as used in this section means: (i) An
initial decision within the meaning of Sec. 1201.163(a)(2) which has not
been reopened by a Board member or as to which no petition to reopen was
filed by a party within 35 days after issuance of the decision;
(ii) A decision by the Board itself pursuant to 29 CFR part 1613 or
5 CFR part 772, in which issues of prohibited discrimination are
addressed, or a decision by the Board denying all petitions to reopen.
(b) Contents of appeal. An appeal raising issues of prohibited
discrimination shall state there was discrimination in conjunction with
the matter appealed and provide specific examples of how the appellant
was discriminated against.
(c) Procedures. (1) Appeals under 29 CFR part 1613 shall be
processed by the Board consistent with the provisions set forth in that
part. Such appeals shall be filed in writing with the appropriate Board
regional or field office.
(2) Appeals under the provisions of 5 CFR part 772 shall be
processed as provided therein, except that under 5 CFR 772.306(b) the
discrimination investigation shall be completed and the investigative
file and report sent to the Board within 120 days. Except when this time
has been extended upon a verified showing of good cause, the Board may
impose the sanctions provided in 5 CFR 1201.43 if an agency fails to
timely complete and file the result of such an investigation.
(3) An initial decision on an appeal which includes issues of
prohibited personnel discrimination shall be rendered by an employee of
the Board, pursuant to 29 CFR part 1613 or 5 CFR part 772, on all issues
raised in the appeal.
(4) Unless a petition to reopen is filed with the Board or unless a
Board member reopens on his/her own motion, within 35 days from issuance
of an initial decision, the initial decision shall become the
preliminary decision of the Board.
(d) Review by Commission--(1) Time for filing. A petition to review
the preliminary decision of the Board on issues of prohibited
discrimination shall be filed with the Commission within 35 days after
the initial decision of the Board becomes the preliminary decision.
(2) Petition filed. In the event a petition for review is filed with
the Commission, the Board decision shall become final on all issues,
other than issues of prohibited discrimination, on the date the
Commission's decision on these issues becomes final.
[[Page 36]]
(3) Petition not filed. If a petition for review is not filed with
the Commission, the decision of the Board shall become final on all
issues. (5 U.S.C. 1204(g)).
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994]
Special Panel
Sec. 1201.171 Referral of case to Special Panel.
If the Board reaffirms its decision under Sec. 1201.162(a)(2) of
this part with or without modification, it will certify the matter
immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon
certification, the Board, within 5 days (excluding Saturdays, Sundays,
and Federal holidays), will transmit the administrative record in the
proceeding to the Chairman of the Special Panel and to the Commission.
That record will include the following:
(a) The factual record compiled under this section, which will
include a transcript of any hearing;
(b) The decisions issued by the Board and the Commission under 5
U.S.C. 7702; and
(c) A transcript of oral arguments made, or legal briefs filed,
before the Board or the Commission.
Sec. 1201.172 Organization of Special Panel; designation of members.
(a) A Special Panel is composed of:
(1) A Chairman, appointed by the President with the advice and
consent of the Senate, whose term is six (6) years;
(2) One member of the Board, designated by the Chairman of the Board
each time a Panel is convened;
(3) One member of the Commission, designated by the Chairman of the
Commission each time a Panel is convened.
(b) Designation of Special Panel members--(1) Time of designation.
Within 5 days of certification of a case to a Special Panel, the
Chairman of Board and the Chairman of the Commission each will designate
one member from his or her agency to serve on the Special Panel.
(2) Manner of designation. Letters designating the Panel members
will be served on the Chairman of the Panel and on the parties to the
appeal.
Sec. 1201.173 Practices and procedures of Special Panel.
(a) Scope. The rules in this subpart apply to proceedings before a
Special Panel.
(b) Suspension of rules. Unless a rule is required by statute, the
Chairman of a Special Panel may suspend the rule, in the interest of
expediting a decision or for other good cause shown, and may conduct the
proceedings in a manner he or she directs. The Chairman may take this
action at the request of a party, or on his or her own motion.
(c) Time limit for proceedings. In accordance with 5 U.S.C.
7702(d)(2)(A), the Special Panel will issue a decision within 45 days
after a matter has been certified to it.
(d) Administrative assistance to the Special Panel. (1) The Board
and the Commission will provide the Panel with the administrative
resources that the Chairman of the Special Panel determines are
reasonable and necessary.
(2) Assistance will include, but is not limited to, processing
vouchers for pay and travel expenses.
(3) The Board and the Commission are responsible for all
administrative costs the Special Panel incurs, and, to the extent
practicable, they will divide equally the costs of providing
administrative assistance. If the Board and the Commission disagree on
the manner in which costs are to be divided, the Chairman of the Special
Panel will resolve the disagreement.
(e) Maintaining the official record. The Board will maintain the
official record of the appeal. It will transmit two copies of each
submission that is filed to each member of the Special Panel in an
expeditious manner.
(f) Filing and service of pleadings. (1) The parties must file the
original and six copies of each submission with the Clerk, Merit Systems
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419. The
Office of the Clerk will serve one copy of each submission on the other
parties.
(2) A certificate of service specifying how and when service was
made must accompany all submissions of the parties.
[[Page 37]]
(3) Service may be made by mail or by personal delivery during the
Board's normal business hours (8:30 a.m. to 5:00 p.m.). Because of the
short statutory time limit for processing these cases, parties must file
their submissions by overnight Express Mail, provided by the U.S. Postal
Service, if they file their submissions by mail.
(4) A submission filed by Express Mail is considered to have been
filed on the date of the Express Mail Order. A submission that is
delivered personally is considered to have been filed on the date the
Office of the Clerk of the Board receives it.
(g) Briefs and responsive pleadings. If the parties wish to submit
written argument, they may file briefs with the Special Panel within 15
days after the date of the Board's certification order. Because of the
short statutory time limit for processing these cases, the Special Panel
ordinarily will not permit responsive pleadings.
(h) Oral argument. The parties have the right to present oral
argument. Parties wishing to exercise this right must indicate this
desire when they file their briefs or, if no briefs are filed, within 15
days after the date of the Board's certification order. Upon receiving a
request for argument, the Chairman of the Special Panel will determine
the time and place for argument and the amount of time to be allowed
each side, and he or she will provide this information to the parties.
(i) Postargument submission. Because of the short statutory time
limit for processing these cases, the parties may not file postargument
submissions unless the Chairman of the Special Panel permits those
submissions.
(j) Procedural matters. Any procedural matters not addressed in
these regulations will be resolved by written order of the Chairman of
the Special Panel.
Sec. 1201.174 Enforcing the Special Panel decision.
The Board, upon receipt of the decision of the Special Panel, will
order the agency concerned to take any action appropriate to carry out
the decision of the Panel. The Board's regulations regarding enforcement
of a final order of the Board apply to this matter. These regulations
are set out in subpart F of this part.
Sec. 1201.175 Judicial review of cases decided under 5 U.S.C. 7702.
(a) Place and type of review. The appropriate United States district
court is authorized to conduct all judicial review of cases decided
under 5 U.S.C. 7702. Those cases include appeals from actions taken
under the following provisions: Section 717(c) of the Civil Rights Act
of 1964, as amended (42 U.S.C. 2000e-16(c)); section 15(c) of the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C.
633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 216(b)).
(b) Time for filing request. Regardless of any other provision of
law, requests for judicial review of all cases decided under 5 U.S.C.
7702 must be filed within 30 days after the appellant received notice of
the judicially reviewable action.
Subpart F--Enforcement of Final Decisions and Orders
Sec. 1201.181 Authority and explanation.
(a) Under 5 U.S.C. 1204(a)(2), the Board has the authority to order
any Federal agency or employee to comply with decisions and orders
issued under its jurisdiction, and the authority to enforce compliance
with its orders and decisions. The parties are expected to cooperate
fully with each other so that compliance with the Board's orders and
decisions can be accomplished promptly and in accordance with the laws,
rules, and regulations that apply to individual cases. The Board's
decisions and orders will contain a notice of the Board's enforcement
authority.
(b) In order to avoid unnecessary petitions under this subpart, the
agency must inform the appellant promptly of the actions it takes to
comply, and it must tell the appellant when it believes it has completed
its compliance. The appellant must provide all necessary information
that the agency requests in order to comply, and, if not otherwise
notified, he or she should, from time to time, ask the agency about its
progress.
[[Page 38]]
Sec. 1201.182 Petition for enforcement.
(a) Appellate jurisdiction. Any party may petition the Board for
enforcement of a final decision issued under the Board's appellate
jurisdiction. The petition must be filed promptly with the regional or
field office that issued the initial decision; a copy of it must be
served on the other party or that party's representative; and it must
describe specifically the reasons the petitioning party believes there
is noncompliance. The petition also must include the date and results of
any communications regarding compliance. Any petition for enforcement
that is filed more than 30 days after the date of service of the
agency's notice that it has complied must contain a statement and
evidence showing good cause for the delay and a request for an extension
of time for filing the petition.
(b) Original jurisdiction. Any party seeking enforcement of a Board
order issued under its original jurisdiction must file a petition for
enforcement with the Clerk of the Board and must serve a copy of that
petition on the other party or that party's representative. The petition
must describe specifically the reasons why the petitioning party
believes there is noncompliance.
(c) Petition by an employee other than a party. Under 5 U.S.C.
1204(e)(2)(B), any employee who is aggrieved by the failure of any other
employee to comply with an order of the Board may petition the Board for
enforcement. The Board will entertain a petition for enforcement from an
aggrieved employee who is not a party only if the employee seeks and is
granted party status as a permissive intervenor under Sec. 1201.34(c) of
this part. The employee must file a motion to intervene at the time of
filing the petition for enforcement. The petition and motion to
intervene must be filed promptly with the regional or field office that
issued the order or, if the order was issued by the Board, with the
Clerk of the Board. The petitioner must serve a copy of the petition and
motion to intervene on each party or the party's representative. The
petition for enforcement must describe specifically why the petitioner
believes there is noncompliance and in what way the petitioner is
aggrieved by the noncompliance. The motion to intervene will be
considered in accordance with Sec. 1201.34(c) of this part.
[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994]
Sec. 1201.183 Procedures for processing petitions for enforcement.
(a) Initial Processing. (1) When a party has filed a petition for
enforcement of a final decision, the alleged noncomplying party must
file one of the following within 15 days of the date of service of the
petition:
(i) Evidence of compliance, including a narrative explanation of the
calculation of back pay and other benefits, and supporting documents;
(ii) Evidence as described in paragraph (a)(1)(i) of this section of
the compliance actions that the party has completed, and a statement of
the actions that are in process and the actions that remain to be taken,
along with a reasonable schedule for full compliance; or
(iii) A statement showing good cause for the failure to comply
completely with the decision of the Board.
The party that filed the petition may respond to that submission within
10 days after the date of service of the submission. The parties must
serve copies of their pleadings on each other as required under
Sec. 1201.26(b)(2) of this part.
(2) If the agency is the alleged noncomplying party, it shall submit
the name and address of the agency official charged with complying with
the Board's order, even if the agency asserts it has fully complied. In
the absence of this information, the Board will presume that the highest
ranking appropriate agency official who is not appointed by the
President by and with the consent of the Senate is charged with
compliance.
(3) The judge may convene a hearing if one is necessary to resolve
matters at issue.
(4) If the judge finds that there has been compliance or a good
faith effort to take all actions required to be in compliance with the
final decision, he or she will state those findings in a decision. That
decision will be subject to the procedures for petitions for review by
the Board under subpart C of this
[[Page 39]]
part, and subject to judicial review under Sec. 1201.119 of this part.
(5) If the judge finds that:
(i) The alleged noncomplying party has not taken, or has not made a
good faith effort to take, any action required to be in compliance with
the final decision, or
(ii) The party has taken or made a good faith effort to take one or
more, but not all, actions required to be in compliance with the final
decision; he or she will issue a recommendation containing his or her
findings, a statement of the actions required by the party to be in
compliance with the final decision, and a recommendation that the Board
enforce the final decision.
(6) If a recommendation described under paragraph (a)(5) of this
section is issued, the alleged noncomplying party must do one of the
following:
(i) If it decides to take the actions required by the
recommendation, it must submit to the Clerk of the Board, within 15 days
after the issuance of the recommendation, evidence that it has taken
those actions.
(ii) If it decides not to take any of the actions required by the
recommendation, it must file a brief supporting its nonconcurrence in
the recommendation. The brief must be filed with the Clerk of the Board
within 30 days after the recommendation is issued and, if it is filed by
the agency, it must identify by name, title, and grade the agency
official responsible for the failure to take the actions required by the
recommendation for compliance.
(iii) If the party decides to take one or more, but not all, actions
required by the recommendation, it must submit both evidence of the
actions it has taken and, with respect to the actions that it has not
taken, a brief supporting its disagreement with the recommendation. The
evidence and brief must be filed with the Clerk of the Board within 30
days after issuance of the recommendation and, if it is filed by the
agency, it must contain the identifying information required by
paragraph (a)(6)(ii) of this section.
(7) The petitioner may file a brief that responds to the submission
described in paragraph (a)(6) of this section, and that asks the Board
to review any finding in the recommendation, made under paragraph
(a)(5)(ii) of this section, that the other party is in partial
compliance with the final decision. The petitioner must file this brief
with the Clerk of the Board within 20 days of the date of service of the
submission described in paragraph (a)(6) of this section.
(b) Consideration by the Board. (1) The Board will consider the
recommendation, along with the submissions of the parties, promptly.
When appropriate, the Board may require the alleged noncomplying party,
or that party's representative, to appear before the Board to show why
sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and
1204(e)(2)(A). The Board also may require the party or its
representative to make this showing in writing, or to make it both
personally and in writing.
(2) The Board may hold a hearing on an order to show cause, or it
may issue a decision without a hearing.
(3) The Board's final decision on the issues of compliance is
subject to judicial review under Sec. 1201.119 of this part.
(c) Certification to the Comptroller General. When appropriate, the
Board may certify to the Comptroller General of the United States, under
5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain
Federal employee. This order may apply to any Federal employee, other
than a Presidential appointee subject to confirmation by the Senate, who
is found to be in noncompliance with the Board's order.
(d) Effect of Special Counsel's action or failure to act. Failure by
the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and
subpart D of this part will not preclude the Board from taking action
under this subpart.
Subpart G--Savings Provisions
Sec. 1201.191 Savings provisions.
(a) Civil Service Reform Act of 1978 (Pub.L. 95-454)--(1) Scope. All
executive orders, rules and regulations relating to the Federal service
that were in effect prior to the effective date of the Civil Service
Reform Act shall continue in effect and be applied by the
[[Page 40]]
Board in its adjudications until modified, terminated, superseded, or
repealed by the President, Office of Personnel Management, the Merit
Systems Protection Board, the Equal Employment Opportunity Commission,
or the Federal Labor Relations Authority, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision
of the Civil Service Reform Act shall be applied by the Board in such a
way as to affect any administrative proceeding pending at the effective
date of such provision. ``Pending'' is considered to encompass existing
agency proceedings, and appeals before the Board or its predecessor
agencies, that were subject to judicial review or under judicial review
on January 11, 1979, the date on which the Act became effective. An
agency proceeding is considered to exist once the employee has received
notice of the proposed action.
(3) Explanation. Mr. X was advised of agency's intention to remove
him for abandonment of position, effective December 29, 1978. Twenty
days later Mr. X appealed the agency action to the Merit Systems
Protection Board. The Merit Systems Protection Board docketed Mr. X's
appeal as an ``old system case,'' i.e., one to which the savings clause
applied. The appropriate regional office processed the case, applying
the substantive laws, rules and regulations in existence prior to the
enactment of the Act. The decision, dated February 28, 1979, informed
Mr. X that he is entitled to judicial review if he files a timely notice
of appeal in the appropriate United States district court or the United
States Court of Claims under the statute of limitations applicable when
the adverse action was taken.
(b) Whistleblower Protection Act of 1989 (Pub. L. 101-12)--(1)
Scope. All orders, rules, and regulations issued by the Board and the
Special Counsel before the effective date of the Whistleblower
Protection Act of 1989 shall continue in effect, according to their
terms, until modified, terminated, superseded, or repealed by the Board
or the Special Counsel, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision
of the Whistleblower Protection Act of 1989 shall be applied by the
Board in such a way as to affect any administrative proceeding pending
at the effective date of such provision. ``Pending'' is considered to
encompass existing agency proceedings, including personnel actions that
were proposed, threatened, or taken before July 9, 1989, the effective
date of the Whistleblower Protection Act of 1989, and appeals before the
Board or its predecessor agencies that were subject to judicial review
on that date. An agency proceeding is considered to exist once the
employee has received notice of the proposed action.
[[Page 41]]
Appendix I to Part 1201--Merit Systems Protection Board Appeal Form
[GRAPHIC] [TIFF OMITTED] TR19DE94.001
[[Page 42]]
[GRAPHIC] [TIFF OMITTED] TR19DE94.002
[[Page 43]]
[GRAPHIC] [TIFF OMITTED] TR19DE94.003
[[Page 44]]
[GRAPHIC] [TIFF OMITTED] TR19DE94.004
[[Page 45]]
[GRAPHIC] [TIFF OMITTED] TR19DE94.005
[[Page 46]]
[GRAPHIC] [TIFF OMITTED] TR19DE94.006
[59 FR 65236, Dec. 19, 1994]
[[Page 47]]
Appendix II to Part 1201--Appropriate Regional or Field Office for
Filing Appeals
All submissions shall be addressed to the Regional Director, if
submitted to a regional office, or the Chief Administrative Judge, if
submitted to a field office, Merit Systems Protection Board, at the
addresses listed below, according to geographic region of the employing
agency or as required by Sec. 1201.4(d) of this part. The facsimile
numbers listed below are TDD-capable; however, calls will be answered by
voice before being connected to the TDD. Address of Appropriate Regional
or Field Office and Area Served:
1. Atlanta Regional Office, 401 West Peachtree Street, N.W., 10th floor,
Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, (Alabama,
Florida, Georgia, Mississippi, South Carolina, and Tennessee).
2. Central Regional Office, 230 South Dearborn Street, 31st floor,
Chicago, Illinois 60604-1669, Facsimile No.: (312) 886-4231, (Illinois;
Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota;
Missouri; Ohio; and Wisconsin).
2a. Dallas Field Office, 1100 Commerce Street, Room 6F20, Dallas, Texas
75242-9979, Facsimile No.: (214) 767-0102, (Arkansas, Louisiana,
Oklahoma, and Texas).
3. Northeastern Regional Office, U.S. Customhouse, Room 501, Second and
Chestnut Streets, Philadelphia, Pennsylvania 19106-2987, Facsimile No.:
(215) 597-3456, (Delaware; Maryland--except the counties of Montgomery
and Prince George's; New Jersey--except the counties of Bergen, Essex,
Hudson, and Union; Pennsylvania; and West Virginia).
3a. Boston Field Office, 99 Summer Street, Suite 1810, Boston,
Massachusetts 02110-1200, Facsimile No.: (617) 424-5708, (Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont).
3b. New York Field Office, 26 Federal Plaza, Room 3137-A, New York, New
York 10278-0022, Facsimile No.: (212) 264-1417, (New Jersey--counties of
Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and Virgin
Islands).
4. Washington Regional Office, 5203 Leesburg Pike, Suite 1109, Falls
Church, Virginia 22041-3473, Facsimile No.: (703) 756-7112, (Maryland--
counties of Montgomery and Prince George's; North Carolina; Virginia;
Washington, DC; and all overseas areas not otherwise covered).
5. Western Regional Office, 250 Montgomery Street, Suite 400, 4th floor,
San Francisco, California 94104-3401, Facsimile No.: (415) 705-2945,
(California and Nevada).
5a. Denver Field Office, 12567 West Cedar Drive, Suite 100, Lakewood,
Colorado 80228-2009, Facsimile No.: (303) 969-5109, (Arizona, Colorado,
Kansas--except Kansas City, Montana, Nebraska, New Mexico, North Dakota,
South Dakota, Utah, and Wyoming).
5b. Seattle Field Office, 915 Second Avenue, Suite 1840, Seattle,
Washington 98174-1056, Facsimile No.: (206) 220-7982, (Alaska, Hawaii,
Idaho, Oregon, Washington, and Pacific overseas areas).
[61 FR 4586, Feb. 7, 1996]
Appendix III to Part 1201--Approved Hearing Locations By Regional Office
Atlanta Regional Office
Birmingham, Alabama
Huntsville, Alabama
Mobile, Alabama
Montgomery, Alabama
Jacksonville, Florida
Miami, Florida
Orlando, Florida
Pensacola, Florida
Tallahassee, Florida
Tampa/St. Petersburg, Florida
Atlanta, Georgia
Augusta, Georgia
Macon, Georgia
Savannah, Georgia
Jackson, Mississippi
Charleston, South Carolina
Columbia, South Carolina
Chattanooga, Tennessee
Knoxville, Tennessee
Memphis, Tennessee
Nashville, Tennessee
Central Regional Office
Chicago, Illinois
Indianapolis, Indiana
Davenport, Iowa/Rock Island, Illinois
Des Moines, Iowa
Lexington, Kentucky
Louisville, Kentucky
Detroit, Michigan
Minneapolis/St. Paul, Minnesota
Kansas City, Missouri
Springfield, Missouri
St. Louis, Missouri
Cleveland, Ohio
Cincinnati, Ohio
Columbus, Ohio
Dayton, Ohio
Milwaukee, Wisconsin
Dallas Field Office
Little Rock, Arkansas
Alexandria, Louisiana
New Orleans, Louisiana
Oklahoma City, Oklahoma
Tulsa, Oklahoma
Corpus Christi, Texas
Dallas, Texas
El Paso, Texas
Houston, Texas
[[Page 48]]
San Antonio, Texas
Temple, Texas
Texarkana, Texas
Northeastern Regional Office
Dover, Delaware
Baltimore, Maryland
Trenton, New Jersey
Harrisburg, Pennsylvania
Philadelphia, Pennsylvania
Pittsburgh, Pennsylvania
Wilkes-Barre, Pennsylvania
Charleston, West Virginia
Morgantown, West Virginia
Boston Field Office
Hartford, Connecticut
New Haven, Connecticut
Bangor, Maine
Portland, Maine
Boston, Massachusetts
Manchester, New Hampshire
Portsmouth, New Hampshire
Providence, Rhode Island
Burlington, Vermont
New York Field Office
Newark, New Jersey
Albany, New York
Buffalo, New York
New York, New York
Syracuse, New York
San Juan, Puerto Rico
Washington Regional Office
Washington, DC
Asheville, North Carolina
Charlotte, North Carolina
Raleigh, North Carolina
Jacksonville, North Carolina
Bailey's Crossroads, Falls Church, Virginia
Norfolk, Virginia
Richmond, Virginia
Roanoke, Virginia
Western Regional Office
Fresno, California
Los Angeles, California
Sacramento, California
San Diego, California
San Francisco, California
Santa Barbara, California
Las Vegas, Nevada
Reno, Nevada
Denver Field Office
Phoenix, Arizona
Tucson, Arizona
Denver, Colorado
Grand Junction, Colorado
Pueblo, Colorado
Wichita, Kansas
Billings, Montana
Great Falls, Montana
Missoula, Montana
Omaha, Nebraska
Albuquerque, New Mexico
Bismarck, North Dakota
Fargo, North Dakota
Rapid City, South Dakota
Sioux Falls, South Dakota
Salt Lake City, Utah
Casper, Wyoming
Seattle Field Office
Anchorage, Alaska
Honolulu, Hawaii
Boise, Idaho
Pocatello, Idaho
Medford, Oregon
Portland, Oregon
Seattle, Washington
Spokane, Washington
Richland, Kennewick, and Pasco, Washington
[61 FR 4586, Feb. 7, 1996]
Appendix IV to Part 1201--Sample Declaration Under 28 U.S.C. 1746
Declaration
I, ________________________, do hereby declare:
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed on
_______________________________________________________________________
Date
_______________________________________________________________________
Signature
PART 1202--STATUTORY REVIEW BOARD--Table of Contents
Authority: 5 U.S.C. 1204.
Sec. 1202.1 Designating Chairman of Statutory Review Board.
At the written request of the Department of Transportation, the
Chairman of the Board will designate a presiding official of the Board
to serve as the Chairman of any Board of Review established by the
Secretary of Transportation under 5 U.S.C. 3383(b) to review certain
actions to remove air traffic controllers.
[54 FR 28658, July 6, 1989]
[[Page 49]]
PART 1203--PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT--Table of Contents
General
Sec.
1203.1 Scope; application of part 1201, subpart B.
1203.2 Definitions.
Procedures for Review
1203.11 Request for regulation review.
1203.12 Granting or denying the request for regulation review.
1203.13 Filing pleadings.
1203.14 Serving documents.
1203.15 Review of regulations on the Board's own motion.
1203.16 Proceedings.
Order of the Board
1203.21 Final order of the Board.
1203.22 Enforcement of order.
Authority: 5 U.S.C. 1204(a), 1204(f), and 1204(h).
Source: 54 FR 23632, June 2, 1989, unless otherwise noted.
General
Sec. 1203.1 Scope; application of part 1201, subpart B.
(a) General. This part applies to the Board's review, under 5 U.S.C.
1204(a)(4) and 1204(f), of any rules or regulations (``regulations'')
issued by the Office of Personnel Management (OPM). It applies to the
Board's review of the way in which an agency implements regulations, as
well as to its review of the validity of the regulations on their face.
(b) Application of 5 CFR part 1201, subparts B and C. (1) Where
appropriate, and unless the Board's regulations provide otherwise, the
Board may apply the provisions of 5 CFR part 1201, subpart B to
proceedings conducted under this part. It may do so on its own motion or
on the motion of a party to these proceedings.
(2) The following provisions of 5 CFR part 1201, subparts B and C do
not apply to proceedings conducted under this part:
(i) Sections 1201.21 through 1201.27 which concern petitions for
appeal of agency actions, and the pleadings that are filed in connection
with those petitions; and
(ii) Sections 1201.111 through 1201.119 which concern final
decisions of presiding officials, and petitions for Board review of
those decisions.
[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]
Sec. 1203.2 Definitions.
(a) Invalid regulation means a regulation that has been issued by
OPM, and that, on its face, would require an employee to commit a
prohibited personnel practice if any agency implemented the regulation.
(b) Invalidly implemented regulation means a regulation, issued by
OPM, whose implementation by an agency has required an employee to
commit a prohibited personnel practice. A valid regulation may be
invalidly implemented.
(c) Merit system principles are the principles stated in 5 U.S.C.
2301(b)(1) through 2301(b)(9).
(d) Pleadings are written submissions containing claims,
allegations, arguments, or evidence. They include briefs, motions,
requests for regulation review, responses, replies, and attachments that
are submitted in connection with proceedings under this part.
(e) Prohibited personnel practices are the impermissible actions
described in 5 U.S.C. 2302(b)(1) through 2302(b)(11).
(f) Regulation review means the procedure under which the Board,
under 5 U.S.C. 1204(f), reviews regulations issued by OPM on their face,
or reviews those regulations as they have been implemented, or both, in
order to determine whether the regualtions require any employee to
commit a prohibited personnel practice.
(g) Request for regulation review means a request that the Board
review a regulation issued by OPM.
[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]
Procedures for Review
Sec. 1203.11 Request for regulation review.
(a) An interested person or the Special Counsel may submit a request
for regulation review.
(b) Contents of request. (1) Each request for regulation review must
include the following information:
[[Page 50]]
(i) The name, address, and signature of the requester's
representative or, if the requester has no representative, of the
requester;
(ii) A citation identifying the regulation being challenged;
(iii) A statement (along with any relevant documents) describing in
detail the reasons why the regulation would require an employee to
commit a prohibited personnel practice; or the reasons why the
implementation of the regulation requires an employee to commit a
prohibited personnel practice;
(iv) Specific identification of the prohibited personnel practice at
issue; and
(v) A description of the action the requester would like the Board
to take.
(2) If the prohibited personnel practice at issue is one prohibited
by 5 U.S.C. 2302(b)(11), the request must include the following
additional information:
(i) Identification of the law or regulation that allegedly would be
or has been violated, and how it would be or has been violated; and
(ii) Identification of the merit system principles at issue and an
explanation of the way in which the law or regulation at issue
implements or directly concerns those principles.
Sec. 1203.12 Granting or denying the request for regulation review.
(a) The Board, in its sole discretion, may grant or deny an
interested person's request for regulation review. It will grant a
request for regulation review that the Special Counsel submits. It will
not, however, review a regulation before its effective date.
(b) After considering the request for regulation review, the Board
will issue an order granting or denying the request in whole or in part.
Orders in which the Board grants the request, in whole or in part, will
identify the agency or agencies involved, if any. They also will include
the following:
(1) A citation identifying the regulation being challenged;
(2) A description of the issues to be addressed;
(3) The docket number assigned to the proceedings; and
(4) Instructions covering the review proceedings, including
information regarding the time limits for filing submissions related to
the request.
[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]
Sec. 1203.13 Filing pleadings.
(a) Place to file and number of copies. One original and three
copies of each pleading must be filed with the Office of the Clerk, U.S.
Merit Systems Protection Board, 1120 Vermont Avenue, NW., Washington, DC
20419. In addition, parties to a proceeding under this part must serve
their pleadings on each other in accordance with Sec. 1203.14 of this
part. The Office of the Clerk will make all pleadings available for
review by the public.
(b) Time limits. (1) A request for regulation review may be filed
any time after the effective date of the regulation.
(2) A response to a request for regulation review, whether the
response supports or opposes the request, must be filed within the time
period provided in the Board order granting the request for review.
(3) A reply to a response may be filed within 10 days after the
response is filed. The reply may address only those matters raised in
the response that were not addressed in the request for regulation
review.
(4) Motions may be filed at any time during the regulation review.
The filing of a motion will not delay the acting of the Board unless the
Board orders a postponement. The Board may rule immediately on a motion
for an extension of time or a continuance if circumstances make
consideration of others' views regarding the motion impracticable.
(5) Submissions opposing motions must be filed within five days
after the opposing party receives the motion.
(c) Additional pleadings. The Board will consider pleadings in
addition to those mentioned above only if the Board requests them, or if
it grants a request that it consider them.
(d) Method and date of filing. Documents may be filed with the
Office of the Clerk either by mail, by personal delivery, by facsimile,
or by commercial overnight delivery. If the document was submitted by
certified mail, it is considered to have been filed on
[[Page 51]]
the mailing date. If it was submitted by regular mail, it is presumed to
have been filed five days before the Office of the Clerk receives it, in
the absence of evidence contradicting that presumption. If it was
delivered personally, it is considered to have been filed on the date
the Office of the Clerk receives it. If it was submitted by facsimile,
the date of the facsimile is considered to be the filing date. If it was
submitted by commercial overnight delivery, the date of filing is the
date it was delivered to the commercial overnight delivery service.
(e) Extensions of time. The Board will grant a request for extension
of time only when good cause is shown.
[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994]
Sec. 1203.14 Serving documents.
(a) Parties. In every case, the person requesting regulation review
must serve a copy of the request on the Director of OPM. In addition,
when the implementation of a regulation is being challenged, the
requester must also serve a copy of the request on the head of the
implementing agency. A copy of all other pleadings must be served, by
the person submitting the pleading, on each other party to the
proceeding.
(b) Method of serving documents. Pleadings may be served on parties
by mail, by personal delivery, by facsimile, or by commercial overnight
delivery. Service by mail is accomplished by mailing the pleading to
each party or representative, at the party's or representative's last
known address. Service by facsimile is accomplished by transmitting the
pleading by facsimile to each party or representative. Service by
personal delivery or by commercial overnight delivery is accomplished by
delivering the pleading to the business office or home of each party or
representative and leaving it with the party or representative, or with
a responsible person at that address. Regardless of the method of
service, the party serving the document must submit to the Board, along
with the pleading, a certificate of service as proof that the document
was served on the other parties or their representatives. The
certificate of service must list the names and addresses of the persons
on whom the pleading was served, must state the date on which the
pleading was served, must state the method (i.e., mail, personal
delivery, facsimile, or commercial overnight delivery) by which service
was accomplished, and must be signed by the person responsible for
accomplishing service.
[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994]
Sec. 1203.15 Review of regulations on the Board's own motion.
The Board may, from time to time, review a regulation on its own
motion under 5 U.S.C. 1204(f)(1)(A). When it does so, it will publish
notice of the review in the Federal Register.
[54 FR 28658, July 6, 1989]
Sec. 1203.16 Proceedings.
The Board has substantial discretion in conducting a regulation
review under this part. It may conduct a review on the basis of the
pleadings alone, or on the basis of the pleadings along with any or all
of the following:
(a) Additional written comments;
(b) Oral argument;
(c) Evidence presented at a hearing; and/or
(d) Evidence gathered through any other appropriate procedures that
are conducted in accordance with law.
Order of the Board
Sec. 1203.21 Final order of the Board.
(a) Invalid regulation. If the Board determines that a regulation is
invalid on its face, in whole or in part, it will require any agency
affected by the order to stop complying with the regulation, in whole or
in part. In addition, it may order other remedial action that it finds
necessary.
(b) Invalidly implemented regulation. If the Board determines that a
regulation has been implemented invalidly, in whole or in part, it will
require affected agencies to terminate the invalid implementation.
(c) Corrective action. The Board may order corrective action
necessary to ensure compliance with its order. The action it may order
includes, but is not limited to, the following:
[[Page 52]]
(1) Cancellation of any personnel action related to the prohibited
personnel practice;
(2) Rescission of any action related to the cancelled personnel
action;
(3) Removal of any reference, record, or document within an
employee's official personnel folder that is related to the prohibited
personnel practice;
(4) Award of back pay and benefits;
(5) Award of attorney fees;
(6) Other remedial measures to reverse the effects of a prohibited
personnel practice; and
(7) The agency's submission of a verified report of its compliance
with the Board's order.
Sec. 1203.22 Enforcement of order.
(a) Any party may ask the Board to enforce a final order it has
issued under this part. The request may be made by filing a petition for
enforcement with the Office of the Clerk of the Board and by serving a
copy of the petition on each party to the regulation review. The
petition must include specific reasons why the petitioning party
believes that there has been a failure to comply with the Board's order.
(b) The Board will take all action necessary to determine whether
there has been compliance with its final order. If it determines that
there has been a failure to comply with the order, it will take actions
necessary to obtain compliance.
(c) Where appropriate, the Board may initiate the enforcement
procedures described in 5 CFR 1201.183(c).
PART 1204--AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
Subpart A--Purpose and Scope
Sec.
1204.1 Purpose.
1204.2 Scope.
Subpart B--Procedures for Disclosure of Records under the Freedom of
Information Act
1204.11 Requests for access to Board records.
1204.12 Fees.
1204.13 Denials.
1204.14 Requests for access to confidential commercial information.
Subpart C--Appeals
1204.21 Submission.
1204.22 Decisions on appeal.
Authority: 5 U.S.C. 552 and 1204, Pub. L. 99-570 and E.O. 12600.
Source: 54 FR 28658, July 6, 1989, unless otherwise noted.
Subpart A--Purpose and Scope
Sec. 1204.1 Purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C.
552, by prescribing the procedures to follow when requesting information
from the Board, and by stating the fees that will be charged for that
information.
Sec. 1204.2 Scope.
(a) For the purpose of this part, the term information has the same
meaning as the term records in Sec. 552 of title 5, United States Code.
All written requests for information that are not processed under part
1205 of the Board's regulations will be processed under this part. The
Board may continue, without complying with the provisions of this part,
to furnish the public with the information it customarily has furnished
in the regular course of performing its official duties, unless
furnishing the information would violate the Privacy Act of 1974, 5
U.S.C. 552a, or another law.
(b) When the subject of the record, or the subject's authorized
representative, requests a record from a Privacy Act system of records,
as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves
the record by the subject's name or other personal identifier, the Board
will handle the request under the procedures and fees applicable in 5
CFR part 1205. When a third party makes a request for access to those
records, without the express written consent of the subject of the
record, the Board will handle the request under this part.
(c) When a party to an appeal requests a copy of a tape recording or
transcript (if one has been prepared) of a hearing that the Board or a
presiding official of the Board conducted under part 1201 or part 1209
of this chapter, the Board will handle the request under 5 CFR 1201.53.
When someone
[[Page 53]]
other than a party to the appeal makes this request, the Board will
handle the request under this part.
(d) In accordance with 5 U.S.C. 552(a)(2), the Board's final
opinions and orders (including concurring and dissenting opinions),
those statements of policy and interpretations adopted by the Board and
that are not published in the Federal Register, and administrative staff
manuals and instructions to staff that affect a member of the public are
available for public inspection and copying in the Board's Headquarters
Library, Room 828, 1120 Vermont Avenue NW., Washington, DC 20419.
Subpart B--Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec. 1204.11 Requests for access to Board records.
(a) Submission of a request. A person may request a record of the
Board under this part by writing to the office that maintains the
record. If the requester has reason to believe that the records in
question are located in a regional office, the request must be submitted
to that office. A list of the addresses of the Board's 11 regional
offices appears in appendix II of 5 CFR part 1201. Other requests must
be addressed to the Clerk of the Board, 1120 Vermont Avenue NW.,
Washington, DC 20419. Requests submitted under this part must be clearly
marked ``Freedom of Information Act Request'' on both the envelope and
the request.
(b) Form. A request must describe the records sought in enough
detail to enable Board personnel to locate the records with no more than
a reasonable effort. Wherever possible, a request must include specific
information about each record sought, such as the date, title or name,
author, recipient, and subject matter of the record. In addition, if the
request seeks records pertaining to cases decided by the Board, it must
indicate the title of the case, the MSPB docket number, and the date of
the decision.
(c) Time limits and decisions. The Board will make a decision on a
request within 10 workdays after the regional office or the Office of
the Clerk receives it, except under ``unusual circumstances'' as that
term is defined at 5 U.S.C. 552(a)(6)(B). Where ``unusual
circumstances'' exist, the Board may extend the time period for making a
decision on the request by no more than 10 additional working days. When
it does so, it will provide written notification of the extension to the
requester. If a request or an appeal is not properly labeled or is
submitted to the wrong office, the time for processing the request will
begin when the proper office receives it. The Clerk of the Board or the
Director of any of the Board's regional offices may make a decision on a
request.
Sec. 1204.12 Fees.
(a) General. The Board will charge the requester fees for services
provided in responding to and processing requests for information. Those
fees will be charged according to the schedule contained in paragraph
(d) of this section, and will recover the full allowable direct costs
that the Board incurs. Fees may be charged for time spent searching for
information, even if the Board fails to locate responsive records, and
even if it determines that the information is exempt from disclosure. It
will not charge the requester, however, if the fee for any request is
less than $25 (the cost to the Board of processing and collecting the
fee).
(b) Definitions. (1) The term direct costs means those costs that an
agency actually incurs in searching for and duplicating (and in the case
of commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Overhead expenses, such as costs of space and of heating or
lighting the facility in which the records are stored, are not included
in direct costs.
(2) The term search includes all time spent looking for material in
response to a request, including page-by-page or line-by-line
identification of material within documents. Searches will be done in
the most efficient and least expensive manner in order to minimize
[[Page 54]]
costs for both the Board and the requester. Searches may be done
manually or by computer using existing programming.
(3) The term duplication means the process of making a copy of a
document necessary to respond to a FOIA request. Those copies can take
the form of paper, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The
copy provided will be in a form that is reasonably usable by requesters.
(4) The term review includes the process of examining documents to
determine whether any portion of them may be exempt from disclosure
under the FOIA, when the documents have been located in response to a
request that is for a commercial use. The term also includes processing
any documents for disclosure, e.g., doing all that is necessary to edit
them and otherwise prepare them for release. Review does not include
time spent resolving general legal or policy issues regarding whether
exemptions apply.
(5) The term commercial use request means a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade, or profit interests of the requester or the
person on whose behalf the request is made. In determining whether a
requester properly belongs in this category, the Board will determine
the use the requester will make of the documents requested. Moreover,
where the Board has reasonable cause to doubt the use a requester will
make of the records sought, or where that use is not clear from the
request itself, the Board will seek additional clarification before
assigning the request to a specific category.
(6) The term educational institution means a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program or programs of scholarly research.
(7) The term noncommercial scientific institution means an
institution that is not operated on a ``commercial'' basis as that term
is used above, and that is operated solely for the purpose of conducting
scientific research whose results are not intended to promote any
particular product or industry.
(8) The term representative of the news media means any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term news means information
that concerns current events or that would be of current interest to the
public.
(c) Categories of requesters. There are four categories of FOIA
requesters: Commercial use requesters; educational and noncommercial
scientific institutions; representatives of the news media; and all
other requesters. To be included in the category of educational and
noncommercial scientific institutions, requesters must show that the
request is authorized by a qualifying institution and that they are
seeking the records not for a commercial use, but in furtherance of
scholarly or scientific research. To be included in the news media
category, a requester must meet the definition in paragraph (b)(8) of
this section and the request must not be made for a commercial use. To
avoid commercial use charges, requesters must show that they should be
included in a category or categories other than that of commercial use
requesters. The board will determine the categories in which to place
requesters for fee purposes. It will make these determinations based on
information provided by the requesters and information otherwise known
to the Board.
(d) Charges. The Board will provide all requesters, except
commercial use requesters as that term is defined above, the first 100
pages (paper copies of standard agency size) of duplication and the
first two hours of search time without charge.
(1) When the Board receives a request:
(i) From a commercial use requester, it will assess charges that
recover the full direct costs for searching for the information
requested, reviewing it for release at the initial request stage,
reviewing it after an appeal to determine whether other exemptions not
considered prior to the appeal apply to it, and duplicating it;
[[Page 55]]
(ii) From an educational and noncommercial scientific institution
or, to the extent duplication exceeds 100 pages, from a representative
of the news media, it will assess only charges for the cost of
duplication of the requested information;
(iii) From all other requesters, to the extent reproduction exceeds
100 pages and search time exceeds 2 hours, it will assess fees to
recover the full direct cost of searching for and duplicating requested
records.
(2) When the Board reasonably believes that a requester or group of
requesters is attempting to divide a request into a series of requests
in order to evade the assessment of fees, the Board will combine the
requests and charge fees accordingly. The Board will not combine
multiple requests on unrelated subjects from one requester.
(3) When the Board determines that charges for a request are likely
to exceed $250, the Board will require the requester to provide an
advance payment of the entire fee before continuing to process the
request.
(4) When a requester has an outstanding fee charge or has failed
previously to pay a fee on time, the Board will require the requester to
pay any outstanding amount owed, and to make an advance payment of the
full amount of the estimated fee before the Board begins to process a
new or pending request from that requester, and before it applies
administrative time limits for making a determination on the new or
pending request.
(e) Fee schedule. (1) Fees for document searches for records will be
charged at a rate of $3.75 for each quarter of an hour.
(2) Fees for computer searches for records will be charged at a rate
of 90 cents for each computer minute.
(3) Fees for review at the initial administrative level to determine
whether records or portions of records are exempt from disclosure, and
for review after an appeal to determine whether the records are exempt
on other legal grounds, will be assessed, for commercial use requests,
at the rate of $8.50 an hour.
(4) Fees for paper copy duplication will represent the reasonable
direct costs to the Board of making copies, taking into account the
salary of the operator, as well as the cost of the reproduction
machinery. Based on these criteria, the Board has determined that the
fee for photocopying records is 10 cents a page, the fee for duplicating
audio tapes is $5.75 a cassette tape, the fee for computer printouts is
10 cents a page, the fee for records produced on magnetic computer tapes
is $21 a tape, and the fee for records produced on computer diskettes is
$2.70 a diskette. When the Board estimates that duplication costs will
exceed $25, it will notify the requester of the estimated amount unless
the requester has indicated in advance a willingness to pay an equal or
higher amount.
(f) Fee waivers. (1) Upon request, the Clerk of the Board or
regional director, as appropriate, will furnish information without
charge or at reduced charges if it is established that disclosure ``is
in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
government.'' Factors on which this decision will be based include:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(iii) Whether disclosure of the requested information is likely to
contribute to public understanding of the subject of the disclosure; and
(iv) The significance of the contribution the disclosure would make
to public understanding of government operations or activities.
(2) If information is to be furnished without charge or at reduced
rates, the requester must also establish that disclosure of the
information is not primarily in the commercial interest of the
requester. Factors on which this decision will be based include:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so,
[[Page 56]]
(ii) Whether the identified commercial interest of the requester is
sufficiently large, in comparison with the public interest in
disclosure, that disclosure is primarily in the commercial interest of
the requester.
(3) The requester has the burden of establishing eligibility for a
waiver of fees or for reduced fees. The denial of a request for waiver
of fees may be appealed under subpart C of this part.
Sec. 1204.13 Denials.
A denial of a request for reduced fees or of a request for waiver of
fees, or denial of a request for a record, in whole or in part, will be
made in writing, will state the reasons for the denial, and will notify
the requester of the right to appeal the denial.
Sec. 1204.14 Requests for access to confidential commercial information.
(a) General. Confidential commercial information provided to the
Board by a business submitter will not be disclosed in response to a
Freedom of Information Act request except in accordance with this
section.
(b) Definitions. (1) The term confidential commercial information
means records provided to the government by a submitter that arguably
contain material exempt from release under Exemption 4 of the Freedom of
Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably
be expected to cause substantial competitive harm.
(2) The term submitter means any person or entity who provides
confidential commercial information to the government. The term
``submitter'' includes, but is not limited to corporations, state
governments, and foreign governments.
(c) Notice to business submitters. The Board will provide a business
submitter with prompt written notice of a request encompassing its
confidential commercial information whenever that action is required
under paragraph (d) of this section, and except as provided in paragraph
(h) of this section. This written notice will either describe the exact
nature of the confidential information requested or will provide copies
of the records or portions of records containing the commercial
information.
(d) When initial notice is required. (1) With respect to
confidential commercial information submitted to the Board before
January 1, 1988, the Board will give the business submitter notice of a
request whenever:
(i) The information is less than 10 years old; or
(ii) The Board has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(2) With respect to confidential commercial information submitted to
the Board on or after January 1, 1988, the Board will give notice to the
business submitter whenever:
(i) The business submitter has designated the information in good
faith as commercially or financially sensitive information; or
(ii) The Board has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(3) Notice of a request for commercially confidential information
submitted before January 1, 1988, is required for a period of not more
than 10 years after the date on which the information is submitted
unless the business submitter requests, and provides justification for,
a longer specific notice period. Whenever possible, the submitter's
claim of confidentiality must be supported by a statement or
certification, by an officer or authorized representative of the
company, that the information in question is in fact confidential
commercial information and has not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, the Board will afford a
business submitter a reasonable period within which to provide a
detailed statement of any objection to disclosure. The statement must
specify all grounds for withholding any of the information under any
exemption of the Freedom of Information Act. In addition, in the case of
Exemption 4, the statement must demonstrate why the information is
alleged to be a trade secret, or to be commercial or financial
information that is privileged or confidential. Information a business
submitter provides under this paragraph
[[Page 57]]
may itself be subject to disclosure under the Freedom of Information
Act.
(f) Notice of intent to disclose information. The Board will
consider carefully a business submitter's objections and specific
grounds for claiming that the information should not be disclosed before
determining whether to disclose confidential commercial information.
Whenever the Board decides to disclose confidential commerical
information over the objection of a business submitter, it will forward
to the business submitter a written notice that includes:
(1) A statement of the reasons for which the business submitter's
disclosure objections were not sufficient;
(2) A description of the confidential commercial information to be
disclosed; and
(3) A specified disclosure date. The Board will forward the notice
of intent to disclose the information a reasonable number of days, as
circumstances permit, before the specified date upon which disclosure is
expected. It will forward a copy of the disclosure notice to the
requester at the same time.
(g) Notice of Freedom of Information Act lawsuit. Whenever a
requester files a lawsuit seeking to compel disclosure of business
information covered by paragraph (d) of this section, the Board will
notify the business submitter promptly.
(h) Exceptions to notice requirements. The notice requirements of
this section do not apply when:
(1) The Board determines that the information should not be
disclosed;
(2) The information lawfully has been published or otherwise made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The disclosure is required by an agency rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency
that are to be released under the Freedom of Information Act; or
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm.
(5) The information requested is not designated by the submitter as
exempt from disclosure in accordance with agency regulations promulgated
pursuant to this section, when the submitter has an opportunity to do so
at the time of submission of the information or a reasonable time
thereafter, unless the agency has substantial reason to believe that
disclosure of the information would result in competitive harm; or
(6) The designation made by the submitter in accordance with Board
regulations appears obviously frivolous; except that, in such case, the
Board must provide the submitter with written notice of any final
administrative disclosure determination within a reasonable period prior
to the specified disclosure date.
Subpart C--Appeals
Sec. 1204.21 Submission.
A person may appeal a denial by the Clerk of the Board, or by any
regional director, of access to agency records, waiver of fees, or
reduction of fees. The appeal must be filed with the Chairman, Merit
Systems Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419.
Any appeal must include a copy of the initial request, a copy of the
letter denying the request, and a statement of the reasons why the
appellant believes the denying official erred.
[55 FR 39911, Oct. 1, 1990, as amended at 59 FR 65243, Dec. 19, 1994]
Sec. 1204.22 Decisions on appeal.
Decisions on an appeal will be made within 20 workdays after the
appeal is received. Each decision will be in writing and, if the denial
of access to records is upheld, will contain the reasons for the
decision, as well as information about the appellant's right to seek
judicial review of the denial.
[[Page 58]]
PART 1205--PRIVACY ACT REGULATIONS--Table of Contents
Subpart A--General Provisions
Sec.
1205.1 Purpose.
1205.2 Policy and scope.
1205.3 Definitions.
1205.4 Disclosure of Privacy Act records.
Subpart B--Procedures for Obtaining Records
1205.11 Access to Board records.
1205.12 Time limits and determinations.
1205.13 Identification.
1205.14 Granting access.
1205.15 Denying access.
1205.16 Fees.
Subpart C--Amendment of Records
1205.21 Request for amendment.
1205.22 Action on request.
1205.23 Time limits.
Subpart D--Appeals
1205.31 Submitting appeal.
1205.32 Decision on appeal.
Authority: 5 U.S.C. 552a and 1204
Source: 54 FR 28662, July 6, 1989, unless otherwise noted.
Subpart A--General Provisions
Sec. 1205.1 Purpose.
This subpart implements the Privacy Act of 1974, 5 U.S.C. 552a,
(``the Act'') by prescribing the procedures by which individuals may
determine the existence of, seek access to, and request amendment of
Board records concerning themselves, and by stating the requirements
that apply to Board employees' use and dissemination of those records.
Sec. 1205.2 Policy and scope.
The Board's policy is to apply these regulations to all records that
can be retrieved from a system of records under the Board's control by
using an individual's name or by using a number, symbol, or other means
of identifying the individual. These regulations, however, do not govern
the rights of parties in adversary proceedings before the Board to
obtain discovery from adverse parties; those rights are governed by part
1201 and part 1209 of this chapter. These regulations also are not
intended to permit the alteration, either before or after the Board has
issued a decision on an appeal, of evidence presented during the Board's
adjudication of the appeal.
Sec. 1205.3 Definitions.
The definitions of 5 U.S.C. 552a apply to this part. In addition, as
used in this part:
(a) Inquiry means a request by an individual regarding whether the
Board has a record that pertains to that individual.
(b) Request for access means a request by an individual to inspect
or copy a record.
(c) Request for amendment means a request by an individual to change
the substance of a particular record by addition, deletion, or other
correction.
(d) Requester means the individual requesting access to or amendment
of a record. The individual may be either the person to whom the
requested record pertains, a legal guardian acting on behalf of the
individual, or a representative designated by that individual.
Sec. 1205.4 Disclosure of Privacy Act records.
(a) Except as provided in 5 U.S.C. 552a(b), the Board will not
disclose any personal record information from systems of records it
maintains to any individual other than the individual to whom the record
pertains, or to any other agency, without the express written consent of
the individual to whom the record pertains, or his or her agent or
attorney.
(b) The Board's staff will take necessary steps, in accordance with
the law and these regulations, to protect the security and integrity of
the records and the personal privacy interests of the subjects of the
records.
Subpart B--Procedures for Obtaining Records
Sec. 1205.11 Access to Board records.
(a) Submission of request. Inquiries or requests for access to
records must be submitted to the appropriate regional office of the
Board, or to the Office of
[[Page 59]]
the Clerk of the Board, U.S. Merit Systems Protection Board, 1120
Vermont Avenue NW., Washington, DC 20419. If the requester has reason to
believe the records in question are located in a regional office, the
request must be submitted to that office. Requests submitted to the
region must be addressed to the regional director at the appropriate
regional office listed in appendix II of 5 CFR part 1201.
(b) Form. Each submission must contain the following information:
(1) The name, address, and telephone number of the individual to
whom the record pertains;
(2) The name, address, and telephone number of the individual making
the request if the requester is someone other than the person to whom
the record pertains, such as a legal guardian or an attorney, along with
evidence of the relationship. Evidence of the relationship may consist
of an authenticated copy of: (i) the birth certificate of the minor
child, and (ii) the court document appointing the individual legal
guardian, or (iii) an agreement for representation signed by the
individual to whom the record pertains;
(3) Any additional information that may assist the Board in
responding to the request, such as the name of the agency that took an
action against an individual, or the docket number of the individual's
case;
(4) The date of the inquiry or request;
(5) The inquirer's or requester's signature; and
(6) A conspicuous indication, both on the envelope and the letter,
that the inquiry is a ``PRIVACY ACT REQUEST''.
(c) Identification. Each submission must comply with the
identification requirements stated in Sec. 1205.13 of this part.
(d) Payment. Records usually will not be released until fees have
been received.
Sec. 1205.12 Time limits and determinations.
(a) Board determinations. The Board will acknowledge the request and
make a determination on it within 10 workdays after it receives the
request, except under the unusual circumstances described below:
(1) When the Board needs to obtain the records from other Board
offices;
(2) When it needs to obtain and examine a large number of records;
(3) When it needs to consult with another agency that has a
substantial interest in the records requested; or
(4) When other extenuating circumstances prevent the Board from
processing the request within the 10-day period.
(b) Time extensions. When unusual circumstances exist, the Board may
extend the time for making a determination on the request for no more
than 10 additional workdays. If it does so, it will notify the requester
of the extension.
(c) Improper request. If a request or an appeal is not properly
labeled, does not contain the necessary identifying information, or is
submitted to the wrong office, the time period for processing the
request will begin when the correct official receives the properly
labeled request and the necessary information.
(d) Determining officials. The Clerk of the Board or a regional
director will make determinations on requests.
Sec. 1205.13 Identification.
(a) In person. Each requester must present satisfactory proof of
identity. The following items, which are listed in order of the Board's
preference, are acceptable proof of the requester's identity when the
request is made in person:
(1) A document showing the requester's photograph;
(2) A document showing the requester's signature; or
(3) If the items described in paragraphs (a)(1) and (2) of this
section are not available, a signed statement in which the requester
asserts his or her identity and acknowledges understanding that
misrepresentation of identity in order to obtain a record is a
misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C.
552a(i)(3).
(b) By mail. The identification of a requester making a request by
mail must be certified by a notary public or equivalent official or
contain other information sufficient to identify the requester.
Sufficient information could be the date of birth of the requester
[[Page 60]]
and some item of information in the record that only the requester would
be likely to know.
(c) Parents of minors, legal guardians, and representatives. Parents
of minors, legal guardians, and representatives must submit
identification under paragraph (a) or (b) of this section. Additionally,
they must present an authenticated copy of:
(1) The minor's birth certificate, and
(2) The court order of guardianship, or
(3) The agreement of representation, where appropriate.
Sec. 1205.14 Granting access.
(a) The Board may allow a requester to inspect records through
either of the following methods:
(1) It may permit the requester to inspect the records personally
during normal business hours at a Board office or other suitable Federal
facility closer to the requester; or
(2) It may mail copies of the records to the requester.
(b) A requester seeking personal access to records may be
accompanied by another individual of the requester's choice. Under those
circumstances, however, the requester must sign a statement authorizing
the discussion and presentation of the record in the accompanying
individual's presence.
Sec. 1205.15 Denying access.
(a) Basis. In accordance with 5 U.S.C. 552a(k)(2), the Board may
deny access to records that are of an investigatory nature and that are
compiled for law enforcement purposes. Those requests will be denied
only where access to them would otherwise be unavailable under Exemption
(b)(7) of the Freedom of Information Act.
(b) Form. All denials of access under this section will be made in
writing and will notify the requester of the right to judicial review.
Sec. 1205.16 Fees.
(a) No fees will be charged except for making copies of records.
(b) Photocopies of records duplicated by the Board will be subject
to a charge of 10 cents a page.
(c) If the fee to be assessed for any request is less than $25 (the
cost to the Board of processing and collecting the fee), no charge will
be made to the requester.
(d) Fees for duplicating audio tapes and computer records will be
charged at a rate representing the actual costs to the Board, as those
costs are shown below.
(1) Audio tapes will be provided at a charge of $5.75 for each
cassette tape.
(2) Computer printouts will be provided at a charge of 1 cent a
page.
(3) Records reproduced on magnetic computer tapes will be provided
at a charge of $21 a tape.
(4) Records produced on computer diskettes will be provided at a
charge of $2.70 a diskette.
(e) If duplication costs exceed $25, the Board will notify the
requester of the estimated amount before copying the records.
(f) When the Board determines that charges for a request are likely
to exceed $250, it will require the requester to pay the entire fee
before it continues to process the request.
(g) The Board will provide one copy of the amended parts of any
record it amends free of charge as evidence of the amendment.
Subpart C--Amendment of Records
Sec. 1205.21 Request for amendment.
A request for amendment of a record must be submitted to the
director of the appropriate regional office, or to the Office of the
Clerk of the Board, U.S. Merit Systems Protection Board, 1120 Vermont
Avenue NW., Washington, DC 20419, depending on which office is
maintaining the record. The request must be in writing, must be
identified conspicuously on the outside of the envelope and the letter
as a ``PRIVACY ACT REQUEST,'' and must include the following
information:
(a) An identification of the record to be amended;
(b) A description of the amendment requested; and
(c) A statement of the basis for the amendment, along with
supporting documentation, if any.
[[Page 61]]
Sec. 1205.22 Action on request.
(a) Amendment granted. If the Board grants the request for
amendment, it will notify the requester and provide him or her with a
copy of the amendment.
(b) Amendment denied. If the Board denies the request for amendment
in whole or in part, it will provide the requester with a written notice
that includes the following information:
(1) The basis for the denial; and
(2) The procedures for appealing the denial.
Sec. 1205.23 Time limits.
The regional director or the Board will rule on a request for
amendment within 10 workdays of receipt of the request in the regional
office or the Office of the Clerk except under the unusual circumstances
described in paragraphs (a)(1) through (a)(4) of Sec. 1205.12 of this
part.
Subpart D--Appeals
Sec. 1205.31 Submitting appeal.
(a) A partial or complete denial, by the Clerk of the Board or a
regional director, of a request for amendment may be appealed to the
Chairman, Merit Systems Protection Board, 1120 Vermont Avenue, NW.,
Washington, DC 20419.
(b) Any appeal must be in writing, must be clearly and conspicuously
identified as a Privacy Act appeal on both the envelope and letter, and
must include:
(1) A copy of the original request for amendment of the record;
(2) A copy of the denial; and
(3) A statement of the reasons why the original denial should be
overruled.
[54 FR 28662, July 6, 1989, as amended at 55 FR 39911, Oct. 1, 1990; 59
FR 65243, Dec. 19, 1994]
Sec. 1205.32 Decision on appeal.
(a) The Chairman will decide the appeal within 30 working days
unless that official determines that there is good cause for extension
of that deadline. If an appeal is improperly labeled, does not contain
the necessary information, or is submitted to an inappropriate official,
the time period for processing the appeal will begin when the Chairman
receives the appeal and the necessary information.
(b) If the request for amendment of a record is granted on appeal,
the Chairman will direct that the amendment be made. A copy of the
amended record will be provided to the requester.
(c) If the request for amendment of a record is denied, the Chairman
will notify the requester of the denial and will inform the requester
of:
(1) The basis for the denial;
(2) The right to judicial review of the decision under 5 U.S.C.
552a(g)(1)(A); and
(3) The right to file a concise statement with the Board stating the
reasons why the requester disagrees with the denial. This statement will
become a part of the requester's record.
[55 FR 39911, Oct. 1, 1990, as amended at 59 FR 65243, Dec. 19, 1994]
PART 1206--OPEN MEETINGS--Table of Contents
Subpart A--Purpose and Policy
Sec.
1206.1 Purpose.
1206.2 Policy.
1206.3 Definitions.
Subpart B--Procedures
1206.4 Notice of meeting.
1206.5 Change in meeting plans after notice.
1206.6 Decision to close meeting.
1206.7 Record of meetings.
1206.8 Providing information to the public.
1206.9 Procedures for expedited closing of meetings.
Subpart C--Conduct of Meetings
1206.11 Meeting place.
1206.12 Role of observers.
Authority: 5 U.S.C. 552b.
Source: 54 FR 20367, May 11, 1989, unless otherwise noted.
Subpart A--Purpose and Policy
Sec. 1206.1 Purpose.
The purpose of this part is to prescribe the procedures by which the
Board will conduct open meetings in accordance with the Government in
the Sunshine Act (5 U.S.C. 552b) (``the Act'').
[[Page 62]]
Sec. 1206.2 Policy.
The Board will provide the public with the fullest practicable
information regarding its decision-making processes, while protecting
individuals' rights and the Board's ability to carry out its
responsibilities. Meetings at which the Board members jointly conduct or
dispose of official business are presumptively open to the public. The
Board will close those meetings in whole or in part only in accordance
with the exemptions provided under 5 U.S.C. 552b(c), and only when doing
so is in the public interest.
Sec. 1206.3 Definitions.
The following definitions apply to this part:
(a) Meeting means deliberations of at least two Board members that
determine or result in the joint conduct of official Board business.
(b) Member means one of the members of the Merit Systems Protection
Board.
Subpart B--Procedures
Sec. 1206.4 Notice of meeting.
(a) Notice of a Board meeting will be published in the Federal
Register at least one week before the meeting. Each notice will include
the following information:
(1) The time of the meeting;
(2) The place where the meeting will be held;
(3) The subject and agenda of the meeting;
(4) Whether the meeting is to be open to the public or closed; and
(5) The name and telephone number of a Board official responsible
for receiving inquiries regarding the meeting.
(b) The Board, by majority vote, may provide less than one week's
notice. When it does so, however, it will provide notice of the meeting
at the earliest practicable time.
Sec. 1206.5 Change in meeting plans after notice.
(a) After notice of a meeting has been published, the Board may
change the time or place of the meeting only if it announces the change
publicly at the earliest practicable time.
(b) After notice of a meeting has been published, the Board may not
change either the subject matter of the meeting or the decision that the
meeting will be open to the public or closed unless both of the
following conditions are met:
(1) By majority, recorded vote, the Board members determine that
Board business requires the change and that no earlier announcement of
the change was possible; and
(2) Notice of the change, and of the individual Board members' vote,
is published in the Federal Register at the earliest practicable time.
Sec. 1206.6 Decision to close meeting.
(a) Basis. The Board, by majority vote, may decide to close a
meeting in accordance with the provisions of 5 U.S.C. 552b(c)(1) to
552b(c)(10) when closing the meeting is in the public interest.
(b) General Counsel certification. For every meeting that is closed
to the public in whole or in part, the General Counsel will certify that
closing the meeting is proper, and will state the basis for that
opinion.
(c) Vote. Within one day after voting to close a meeting, the Board
will make publicly available a record reflecting the vote of each
member. In addition, within one day after any vote to close a portion or
portions of a meeting to the public, the Board will make publicly
available a full written explanation of its decision to close the
meeting, together with a list naming all persons expected to attend the
meeting and identifying their affiliation, unless that disclosure would
reveal the information that the meeting was closed to protect.
Sec. 1206.7 Record of meetings.
(a) Closed Meeting. When the Board has decided to close a meeting in
whole or in part, it will maintain the following record:
(1) A transcript or recording of the proceeding;
(2) A copy of the General Counsel's certification under
Sec. 1206.6(b) of this part;
(3) A statement from the presiding official specifying the time and
place of
[[Page 63]]
the meeting and naming the persons present; and
(4) A record (which may be part of the transcript) of all votes and
all documents considered at the meeting.
(b) Open meeting. Transcripts or other records will be made of all
open meetings of the Board. Those records will be made available upon
request at a fee representing the Board's actual cost of making them
available.
[54 FR 20367, May 11, 1989, as amended at 54 FR 28664, July 6, 1989]
Sec. 1206.8 Providing information to the public.
Information available to the public under this part will be made
available by the Office of the Clerk of the Board, U.S. Merit Systems
Protection Board, 1120 Vermont Avenue, NW., Washington, DC 20419.
Individuals or organizations with a special interest in activities of
the Board may ask the Office of the Clerk to have them placed on a
mailing list for receipt of information available under this part.
Sec. 1206.9 Procedures for expedited closing of meetings.
Instead of following the procedures described in Secs. 1206.4
through 1206.8 of this part, and in Secs. 1206.11 and 1206.12, the Board
may expedite the closing of its meetings under the following conditions
by using the following procedures:
(a) Finding. (1) Most regular Board business consists of reviewing
initial decisions in cases adjudicated after an opportunity for a
hearing has been provided. Based on a review of this circumstance, the
legislative history of the Civil Service Reform Act of 1978 (Pub. L. 95-
454), the Government in the Sunshine Act (5 U.S.C. 552b), and the
Board's regulations at 5 CFR part 1201, the Board finds that a majority
of its meetings may properly be closed to the public under 5 U.S.C.
552b(c)(10) and 552b(d)(4).
(2) Absent a compelling public interest to the contrary, meetings or
portions of meetings that can be expected to be closed under these
procedures include meetings held to consider the following: Petitions
for review or cases that have been or may be reopened under 5 CFR
1201.114 through 1201.117; proposals to take action against
administrative law judges under 5 CFR 1201.131 through 1201.136; and
actions brought by the Special Counsel under 5 CFR 1201.129.
(b) Announcement. The Board will announce publicly, at the earliest
practicable time, the time, place, and subject matter of meetings or
portions of meetings that are closed under this provision.
(c) Procedure for closing meetings under this section. At the
beginning of a meeting or portion of a meeting that is to be closed
under this section, the Board may, by recorded vote of two of its
members, decide to close the meeting or a portion of it to public
observation. The Board may take this action, however, only after it
receives a certification by the General Counsel under Sec. 1206.6(b) of
this part.
(d) Record Availability. When the Board has closed a meeting or
portion of a meeting under this paragraph, it will make the following
available as soon as practicable:
(1) A written record reflecting the vote of each participating
member of the Board with respect to closing the meeting; and
(2) The General Counsel certification under Sec. 1206.6(b).
Subpart C--Conduct of Meetings
Sec. 1206.11 Meeting place.
The Board will hold open meetings in meeting rooms designated in the
public announcements of those meetings. Whenever the number of observers
is greater than can be accommodated in the designated meeting room,
however, it will make alternative facilities available to the extent
possible.
Sec. 1206.12 Role of observers.
The public may attend open meetings for the sole purpose of
observation. Observers may not participate in the meetings unless they
are expressly invited to do so. They also may not create distractions
that interfere with the conduct and disposition of Board business, and
they may be asked to leave if they do so. Observers of meetings that are
partially closed must leave the meeting room when they are asked to do
so.
[[Page 64]]
PART 1207--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD--Table of Contents
Sec.
1207.101 Purpose.
1207.102 Application.
1207.103 Definitions.
1207.104--1207.109 [Reserved]
1207.110 Self-evaluation.
1207.111 Notice.
1207.112--1207.129 [Reserved]
1207.130 General prohibitions against discrimination.
1207.131--1207.139 [Reserved]
1207.140 Employment.
1207.141--1207.148 [Reserved]
1207.149 Program accessibility: Discrimination prohibited.
1207.150 Program accessibility: Existing facilities.
1207.151 Program accessibility: New construction and alterations.
1207.152--1207.159 [Reserved]
1207.160 Communications.
1207.161--1207.169 [Reserved]
1207.170 Compliance procedures.
1207.171--1207.999 [Reserved]
Authority: 29 U.S.C. 794.
Source: 53 FR 25881 and 25885, July 8, 1988, unless otherwise noted.
Sec. 1207.101 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 1207.102 Application.
This regulation (Secs. 1207.101-1207.170) applies to all programs or
activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
Sec. 1207.103 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
[[Page 65]]
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 1207.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Secs. 1207.104--1207.109 [Reserved]
Sec. 1207.110 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
[[Page 66]]
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 1207.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Secs. 1207.112--1207.129 [Reserved]
Sec. 1207.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
[[Page 67]]
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Secs. 1207.131--1207.139 [Reserved]
Sec. 1207.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. 1207.141--1207.148 [Reserved]
Sec. 1207.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1207.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 1207.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1207.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock,
[[Page 68]]
or any other methods that result in making its programs or activities
readily accessible to and usable by individuals with handicaps. The
agency is not required to make structural changes in existing facilities
where other methods are effective in achieving compliance with this
section. The agency, in making alterations to existing buildings, shall
meet accessibility requirements to the extent compelled by the
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157),
and any regulations implementing it. In choosing among available methods
for meeting the requirements of this section, the agency shall give
priority to those methods that offer programs and activities to
qualified individuals with handicaps in the most integrated setting
appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 1207.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 1207.150(a) (2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 1207.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Secs. 1207.152--1207.159 [Reserved]
Sec. 1207.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall
[[Page 69]]
give primary consideration to the requests of the individual with
handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1207.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.
Secs. 1207.161--1207.169 [Reserved]
Sec. 1207.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Equal Employment Officer shall be responsible for
coordinating implementation of this section. Complaints may be sent to
the Equal Employment Office, Merit Systems Protection Board, 1120
Vermont Avenue, NW., Room 908, Washington, DC 20419.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
[[Page 70]]
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1207.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25881 and 25885, July 8, 1988, as amended at 53 FR 25881, July 8,
1988]
Secs. 1207.171--1207.999 [Reserved]
PART 1208--[RESERVED]
PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING--Table of Contents
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.
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
[[Page 71]]
``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 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.
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; or
(10) A significant change in duties or responsibilities that is
inconsistent with the employee's salary or grade level.
(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).
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.
[[Page 72]]
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,
(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 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 of 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]
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 the appellant's 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 appellant's whistleblowing, as described in Sec. 1209.4(b) of this
part.
(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.
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.
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
[[Page 73]]
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 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]
[[Page 74]]
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.
PART 1210--DEBT MANAGEMENT--Table of Contents
Subpart A--Salary Offset
Sec.
1210.1 Purpose and scope.
1210.2 Definitions.
1210.3 Applicability.
1210.4 Notice requirements.
1210.5 Hearing.
1210.6 Written decision.
1210.7 Coordinating offset with another Federal agency.
1210.8 Procedures for salary offset.
1210.9 Refunds.
1210.10 Statute of limitations.
1210.11 Nonwaiver of rights.
1210.12 Interest, penalties, and administrative costs.
Subpart B--Claims Collection
1210.21 Purpose and scope.
1210.22 Definitions.
1210.23 Other remedies.
1210.24 Claims involving criminal activity or misconduct.
1210.25 Collection.
1210.26 Notices to debtor.
1210.27 Interest, penalties, and administrative costs.
1210.28 Administrative offset.
1210.29 Use of credit reporting agencies.
1210.30 Collection services.
1210.31 Referral to the Department of Justice or the General Accounting
Office.
1210.32 Compromise, suspension and termination.
1210.33 Omissions not a defense.
Source: 54 FR 50603, Dec. 8, 1989, unless otherwise noted.
Subpart A--Salary Offset
Authority: 5 U.S.C. 5514, Executive Order 11809 (redesignated
Executive Order 12107), and 5 CFR 550 subpart K.
Sec. 1210.1 Purpose and scope.
(a) This regulation provides procedures for the collection by
administrative offset of a Federal employee's salary without his/her
consent to satisfy certain debts owed to the Federal Government. These
regulations apply to all Federal employees who owe debts to the MSPB and
to current employees of the MSPB who owe debts to other Federal
agencies. This regulation does not apply when the employee consents to
recovery from his/her current pay account.
(b) This regulation does not apply to debts or claims arising under:
(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et
seq.;
(2) The Social Security Act, 42 U.S.C. 301 et seq.;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
(c) This regulation does not apply to any adjustment to pay arising
out of an employee's selection of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
[[Page 75]]
(d) This regulation does not preclude the compromise, suspension, or
termination of collection action where appropriate under the standards
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq. 4
CFR parts 101 through 105; 5 CFR part 1210.
(e) This regulation does not preclude an employee from requesting
waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32
U.S.C. 716 or in any way questioning the amount of validity of the debt
by submitting a subsequent claim to the General Accounting Office. This
regulation does not preclude an employee from requesting a waiver
pursuant to other statutory provisions applicable to the particular debt
being collected.
(f) Matters not addressed in these regulations should be reviewed in
accordance with the Federal Claims Collection Standards at 4 CFR 101.1
et seq.
Sec. 1210.2 Definitions.
(a) Agency. An executive agency as is defined at 5 U.S.C. 105
including the U.S. Postal Service, the U.S. Postal Commission, a
military department as defined at 5 U.S.C. 102, an agency or court in
the judicial branch, an agency of the legislative branch including the
U.S. Senate and House of Representatives and other independent
establishments that are entities of the Federal government.
(b) Chairman. The Chairman of the MSPB or the Chairman's designee.
(c) Creditor agency. The agency to which the debt is owed.
(d) Debt. An amount owed to the United States from sources which
include loans insured or guaranteed by the United States and all other
amounts due the United States from fees, leases, rents, royalties,
services, sales or real or personal property, overpayments, penalties,
damages, interests, fines, forfeitures (except those arising under the
Uniform Code of Military Justice), and all other similar sources.
(e) Disposable pay. The amount that remains from an employee's
Federal pay after required deductions for social security, Federal,
state or local income tax, health insurance premiums, retirement
contributions, life insurance premiums, Federal employment taxes, and
any other deductions that are required to be withheld by law.
(f) Hearing official. An individual responsible for conducting any
hearing with respect to the existence or amount of a debt claimed, and
who renders a decision on the basis of such hearing. A hearing official
may not be under the supervision or control of the Chairman of the MSPB.
(g) Paying Agency. The agency that employs the individual who owes
the debt and authorizes the payment of his/her current pay.
(h) Salary offset. An administrative offset to collect a debt
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee
without his/her consent.
Sec. 1210.3 Applicability.
(a) These regulations are to be followed when:
(1) The MSPB is owed a debt by an individual currently employed by
another Federal agency;
(2) The MSPB is owed a debt by an individual who is a current
employee of the MSPB; or
(3) The MSPB employs an individual who owes a debt to another
Federal agency.
Sec. 1210.4 Notice requirements.
(a) Deductions shall not be made unless the employee is provided
with written notice signed by the Chairman of the debt at least 30 days
before salary offset commences.
(b) The written notice shall contain:
(1) A statement that the debt is owed and an explanation of its
nature, and amount;
(2) The agency's intention to collect the debt by deducting from the
employee's current disposable pay account;
(3) The amount, frequency proposed beginning date, and duration of
the intended deduction(s);
(4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the Federal Claims Collections Standards at 4
CFR 101.1 et seq.;
[[Page 76]]
(5) The employee's right to inspect, request, or receive a copy of
government records relating to the debt;
(6) The opportunity to establish a written schedule for the
voluntary repayment of the debt;
(7) The right to a hearing conducted by an impartial hearing
official;
(8) The methods and time period for petitioning for hearings;
(9) A statement that the timely filing of a petition for a hearing
will stay the commencement of collection proceedings;
(10) A statement that a final decision on the hearing will be issued
not later than 60 days after the filing of the petition requesting the
hearing unless the employee requests and the hearing official grants a
delay in the proceedings;
(11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures;
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made; and
(13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee.
Sec. 1210.5 Hearing.
(a) Request for hearing. (1) An employee must file a petition for a
hearing in accordance with the instructions outlined in the agency's
notice to offset.
(2) A hearing may be requested by filing a written petition
addressed to the Chairman of the MSPB stating why the employee disputes
the existence or amount of the debt. The petition for a hearing must be
received by the Chairman no later than fifteen (15) calendar days after
the date of the notice to offset unless the employee can show good cause
for failing to meet the deadline date.
(b) Hearing procedures. (1) The hearing will be presided over by an
impartial hearing official.
(2) The hearing shall conform to procedures contained in the Federal
Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the
employee to demonstrate that the existence or the amount of the debt is
in error.
Sec. 1210.6 Written decision.
(a) The hearing official shall issue a written opinion no later than
60 days after the hearing.
(b) The written opinion will include: A statement of the facts
presented to demonstrate the nature and origin of the alleged debt; the
hearing official's analysis, findings and conclusions; the amount and
validity of the debt, and the repayment schedule.
Sec. 1210.7 Coordinating offset with another Federal agency.
(a) The MSPB as the creditor agency. (1) When the Chairman
determines that an employee of a Federal agency owes a delinquent debt
to the MSPB, the Chairman shall as appropriate:
(i) Arrange for a hearing upon the proper petitioning by the
employee;
(ii) Certify in writing that the employee owes the debt, the amount
and basis of the debt, the date on which payment is due, the date the
Government's right to collect the debt accrued, and that MSPB
regulations for salary offset have been approved by the Office of
Personnel Management;
(iii) Advise the paying agency of the amount or percentage of
disposable pay to be collected in each installment, if collection is to
be made in installments;
(iv) Advise the paying agency of the actions taken under 5 U.S.C.
5514(b) and provide the dates on which action was taken unless the
employee has consented to salary offset in writing or signed a statement
acknowledging receipt of procedures required by law. The written consent
or acknowledgment must be sent to the paying agency;
(v) If the employee is in the process of separating, MSPB must
submit its debt claim to the paying agency as provided in this part. The
paying agency must certify any amounts already collected, notify the
employee, and send a copy of the certification and notice of
[[Page 77]]
the employee's separation to the creditor agency. If the paying agency
is aware that the employee is entitled to Civil Service Retirement and
Disability Fund or similar payments, it must certify to the agency
responsible for making such payments the amount of the debt and that the
provisions of this part have been followed; and
(vi) If the employee has already separated and all payments due from
the paying agency have been paid, the Chairman may request unless
otherwise prohibited, that money payable to the employee from the Civil
Service Retirement and Disability Fund or other similar funds be
collected by administrative offset.
(b) MSPB as the paying agency. (1) Upon receipt of a properly
certified debt claim from another agency, deductions will be scheduled
to begin at the next established pay interval. The employee must receive
written notice that the MSPB has received a certified debt claim from
the creditor agency, the amount of the debt, the date salary offset will
begin, and the amount of the deduction(s). The MSPB shall not review the
merits of the creditor agency's determination of the validity or the
amount of the certified claim.
(2) If the employee transfers to another agency after the creditor
agency has submitted its debt claim to the MSPB and before the debt is
collected completely, the MSPB must certify the total amount collected.
One copy of the certification must be furnished to the employee. A copy
must be furnished the creditor agency with notice of the employee's
transfer.
Sec. 1210.8 Procedures for salary offset.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the Chairman's notice of intention to offset
as provided in Sec. 1210.4. Debts will be collected in one lump sum
where possible. If the employee is financially unable to pay in one lump
sum, collection must be made in installments.
(b) Debts will be collected by deduction at officially established
pay intervals from an employee's current pay account unless alternative
arrangements for repayment are made.
(c) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size of installment
deductions must bear a reasonable relationship to the size of the debt
and the employee's ability to pay. The deduction for the pay intervals
for any period must not exceed 15 percent of disposable pay unless the
employee has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment
due to a separated employee including but not limited to final salary
payment or leave in accordance with 31 U.S.C. 3716.
Sec. 1210.9 Refunds.
(a) The MSPB will refund promptly any amounts deducted to satisfy
debts owed to the MSPB when the debt is waived, found not owed to the
MSPB, or when directed by an administrative or judicial order.
(b) The creditor agency will promptly return any amounts deducted by
MSPB to satisfy debts owed to the creditor agency when the debt is
waived, found not owed, or when directed by an administrative or
judicial order.
(c) Unless required by law, refunds under this subsection shall not
bear interest.
Sec. 1210.10 Statute of limitations.
If a debt has been outstanding for more than 10 years after the
agency's right to collect the debt first accrued, the agency may not
collect by salary offset unless facts material to the Government's right
to collect were not known and could not reasonably have been known by
the official or officials who were charged with the responsibility for
discovery and collection of such debts.
Sec. 1210.11 Nonwaiver of rights.
An employee's involuntary payment of all or any part of a debt
collected under these regulations will not be construed as a waiver of
any rights that employee may have under 5 U.S.C. 5514 or any other
provision of contract law unless there are statutes or contract(s) to
the contrary.
[[Page 78]]
Sec. 1210.12 Interest, penalties, and administrative costs.
Charges may be assessed for interest, penalties, and administrative
costs in accordance with the Federal Claims Collection Standards, 4 CFR
102.13. Dated: July 24, 1987.
Subpart B--Claims Collection
Authority: The authority for this part is the Federal Claims
Collection Act of 1966, as amended, 31 U.S.C. 3711 and 3716-3719; the
Federal Claims Collection Standards at 4 CFR parts 101-105, as amended
by 49 FR 8889, 5 U.S.C. 552a, and Office of Management and Budget
Circular A-129.
Sec. 1210.21 Purpose and scope.
This part prescribes standards and procedures for officers and
employees of the MSPB who are responsible for the collection and
disposition of debts owed to the United States. The activities covered
include: Collecting claims in any amount; compromising claims, or
suspending or terminating the collection of claims that do not exceed
$20,000 exclusive of interest and charges; and referring debts that
cannot be disposed of by the MSPB to the Department of Justice or to the
General Accounting Office for further administrative action or
litigation.
Sec. 1210.22 Definitions.
(a) Claim or debt. An amount or property owed to the United States
which includes, but is not limited to: Overpayments to program
beneficiaries; overpayments to contractors and grantees, including
overpayments arising from audit disallowances; excessive cash advances
to grantees and contractors; and civil penalties and assessments. A debt
is overdue or delinquent if it is not paid by the due date specified in
the initial notice of the debt (see Sec. 1210.26) or if the debtor fails
to satisfy his or her obligation under a repayment agreement.
(b) Debtor. An individual, organization, group, association,
partnership, or corporation indebted to the United States, or the person
or entity with legal responsibility for assuming the debtor's
obligation.
(c) MSPB. The Merit Systems Protection Board.
(d) Administrative offset. Satisfying a debt by withholding money
payable by the United States to or held by the United States for a
debtor.
Sec. 1210.23 Other remedies.
The remedies and sanctions available to the MSPB under this part are
not intended to be exclusive. The Chairman of the MSPB or his designee
may impose other appropriate sanctions upon a debtor for prolonged or
repeated failure to pay a debt. For example, the Chairman or his
designee may place the debtor's name on a list of debarred, suspended,
or ineligible contractors. In such cases the debtor will be advised of
the MSPB's action.
Sec. 1210.24 Claims involving criminal activity or misconduct.
(a) A debtor whose indebtedness involves criminal activity such as
fraud, embezzlement, theft, or misuse of government funds or property is
subject to punishment by fine or imprisonment as well as to a civil
claim by the United States for compensation for the misappropriated
funds. The MSPB will refer these cases to the appropriate law
enforcement agency for prosecution.
(b) Debts involving fraud, false claims, or misrepresentation shall
not be compromised, terminated, suspended, or otherwise disposed of
under this rule. Only the Department of Justice is authorized to
compromise, terminate, suspend, or otherwise dispose of such debts.
Sec. 1210.25 Collection.
(a) The MSPB will take aggressive action to collect debts and reduce
delinquencies. Collection efforts shall include sending to the debtor's
last known address a total of three progressively stronger written
demands for payment at not more than 30 day intervals. When necessary to
protect the Government's interest, written demand may be preceded by
other appropriate action, including immediate referral for litigation.
Other contact with the debtor or his or her representative or guarantor
by telephone, in person and/or in writing may be appropriate to demand
prompt payment, to discuss the debtor's position regarding the
existence, amount and repayment of the
[[Page 79]]
debt, and to inform the debtor of his or her rights and effect of
nonpayment or delayed payment. A debtor who disputes a debt must
promptly provide available supporting evidence.
(b) If a debtor is involved in insolvency proceedings, the debt will
be referred to the appropriate United States Attorney to file a claim.
The United States may have a priority over other creditors under 31
U.S.C. 3713.
Sec. 1210.26 Notices to debtor.
The first written demand for payment must inform the debtor of the
following:
(a) The amount and nature of the debt;
(b) The date payment is due, which will generally be 30 days from
the date the notice was mailed;
(c) The assessment of interest under Sec. 1210.27 from the date the
notice was mailed if payment is not received within the 30 days;
(d) The right to dispute the debt;
(e) The office, address and telephone number that the debtor should
contact to discuss repayment and reconsideration of the debt; and
(f) The sanctions available to the MSPB to collect a delinquent debt
including, but not limited to, referral of the debt to a credit
reporting agency, a private collection bureau, or the Department of
Justice for litigation.
Sec. 1210.27 Interest, penalties, and administrative costs.
(a) Interest will accrue on all debts from the date when the first
notice of the debt and the interest requirement is mailed to the last
known address or hand-delivered to the debtor if the debt is not paid
within 30 days from the date the first notice was mailed. The MSPB will
charge an annual rate of interest that is equal to the average
investment rate for the Treasury tax and loan accounts on September 30
of each year, rounded to the nearest whole per centum. This rate, which
represents the current value of funds to the United States Treasury, may
be revised quarterly by the Secretary of the Treasury and is published
by the Secretary of the Treasury annually or quarterly in the Federal
Register and the Treasury Financial Manual Bulletins.
(b) The rate of interest initially assessed will remain fixed for
the duration of the indebtedness, except that if a debtor defaults on a
repayment agreement interest may be set at the Treasury rate in effect
on the date a new agreement is executed.
(c) The MSPB shall charge debtors for administrative costs incurred
in handling overdue debts.
(d) Interest will not be charged on administrative costs.
(e) The MSPB shall assess a penalty charge, not to exceed 6 percent
per year on debts which have been delinquent for more than 90 days. This
change shall accrue from the date that the debt became delinquent.
(f) The Chairman or his designee may waive in whole or in part the
collection of interest and administrative and penalty charges if
determined that collection would be against equity or not in the best
interests of the United States. The MSPB shall waive the collection of
interest on the debt or any part of the debt which is paid within 30
days after the date on which interest began to accrue.
Sec. 1210.28 Administrative offset.
(a) The MSPB may collect debts owed by administrative offset if:
(1) The debt is certain in amount;
(2) Efforts to obtain direct payment have been, or would most likely
be unsuccessful, or the MSPB and the debtor agree to the offset;
(3) Offset is cost effective or has significant deterrent value; and
(4) Offset is best suited to further and protect the Government's
interest.
(b) The MSPB may offset a debt owed to another Federal agency from
amounts due or payable by the MSPB to the debtor or request another
Federal agency to offset a debt owed to the MSPB;
(c) Prior to initiating administrative offset, the MSPB will send
the debtor written notice of the following:
(1) The nature and amount of the debt and the agency's intention to
collect the debt by offset 30 days from the date the notice was mailed
if neither payment nor a satisfactory response is received by that date;
[[Page 80]]
(2) The debtor's right to an opportunity to submit a good faith
alternative repayment schedule to inspect and copy agency records
pertaining to the debt, to request a review of the determination of
indebtedness; and to enter into a written agreement to repay the debt;
and
(3) The applicable interest.
(d) The MSPB may effect an administrative offset against a payment
to be made to a debtor prior to the completion of the procedures
required by paragraph (c) of this section if:
(1) Failure of offset would substantially prejudice the Government's
ability to collect the debt; and
(2) The time before the payment is to be made does not reasonably
permit completion of those procedures.
Sec. 1210.29 Use of credit reporting agencies.
(a) The MSPB may report delinquent accounts to credit reporting
agencies consistent with the notice requirements contained in the
Sec. 1210.26. Individual debtors must be given at least 60 days written
notice that the debt is overdue and will be reported to a credit
reporting agency.
(b) Debts may be reported to consumer or commercial reporting
agencies. Consumer reporting agencies are defined in 31 U.S.C.
3701(a)(3) pursuant to 5 U.S.C. 552a(b)(12) and 31 U.S.C. 3711(f). The
MSPB may disclose only an individual's name, address, Social Security
number, and the nature, amount, status and history of the debt and the
program under which the claim arose.
Sec. 1210.30 Collection services.
(a) The MSPB may contract for collection services to recover
outstanding debts. The MSPB may refer delinquent debts to private
collection agencies listed on the schedule compiled by the General
Services Administration. In such contracts, the MSPB will retain the
authority to resolve disputes, compromise claims, terminate or suspend
collection, and refer the matter to the Department of Justice or the
General Accounting Office.
(b) The contractor shall be subject to the disclosure provisions of
the Privacy Act of 1974, as amended (5 U.S.C. 552a(m)), and to
applicable Federal and state laws and regulations pertaining to debt
collection practices, including the Fair Debt Collection Practices Act,
15 U.S.C. 1692. The contractor shall be strictly accountable for all
amounts collected.
(c) The contractor shall be required to provide to the MSPB any data
contained in its files relating to the debt account upon agency request
or upon returning an account to the MSPB for referral to the Department
of Justice for litigation.
Sec. 1210.31 Referral to the Department of Justice or the General Accounting Office.
Debts over $600 but less than $100,000 which the MSPB determines can
neither be collected nor otherwise disposed of will be referred for
litigation to the United States Attorney in whose judicial district the
debtor is located. Claims for amounts exceeding $100,000 shall be
referred for litigation to the Commercial Litigation Branch, Civil
Division of the Department of Justice.