37 Subpart C—Petitions for Review of Initial Decisions

Merit Systems Protection Board Pt. 1201

(7) Office of Equal Employment Oppor- Subpart B—Procedures for Appellate tunity. The Director, Office of Equal Cases Employment Opportunity, manages the GENERAL Board’s equal employment programs. (8) Office of Financial and Administra- 1201.11 Scope and policy. 1201.12 Revocation, amendment, or waiver tive Management. The Office of Finan- of rules. cial and Administrative Management 1201.13 Appeals by Board employees. administers the budget, accounting, 1201.14 Electronic filing procedures. procurement, property management, APPEAL OF AGENCY ACTION; PLEADINGS physical security, and general services functions of the Board. It also develops 1201.21 Notice of appeal rights. 1201.22 Filing an appeal and responses to ap- and coordinates internal management peals. programs and projects, including re- 1201.23 Computation of time. view of internal controls agencywide. 1201.24 Content of an appeal; right to hear- It performs certain personnel func- ing. tions, including policy, training, drug 1201.25 Content of agency response. testing, and the Employee Assistance 1201.26 Number of pleadings, service, and response. Program. It also administers the agen- 1201.27 Class appeals. cy’s cross-servicing arrangements with 1201.28 Case suspension procedures. the U.S. Department of Treasury’s Bu- 1201.29 Dismissal without prejudice. reau of Public Debt for accounting PARTIES, REPRESENTATIVES, AND WITNESSES services and with the U.S. Department of Agriculture’s National Finance Cen- 1201.31 Representatives. 1201.32 Witnesses; right to representation. ter for payroll and personnel action 1201.33 Federal witnesses. processing services and with the U.S. 1201.34 Intervenors and amicus curiae. Department of Agriculture’s APHIS 1201.35 Substituting parties. Business Services for most human re- 1201.36 Consolidating and joining appeals. sources management services. 1201.37 Witness fees. (9) Office of Information Resources JUDGES Management. The Office of Information 1201.41 Judges. Resources Management develops, im- 1201.42 Disqualifying a judge. plements, and maintains the Board’s 1201.43 Sanctions. automated information systems. HEARINGS (c) Regional and Field Offices. The Board has regional and field offices lo- 1201.51 Scheduling the hearing. 1201.52 Public hearings. cated throughout the country (See Ap- 1201.53 Record of proceedings. pendix II to 5 CFR part 1201 for a list of 1201.55 Motions. the regional and field offices). Judges 1201.56 Burden and degree of proof. in the regional and field offices hear 1201.57 Establishing jurisdiction in appeals and decide initial appeals and other as- not covered by § 1201.56; burden and designed cases as provided for in the gree of proof; scope of review. 1201.58 Order of hearing. Board’s regulations. 1201.59 Closing the record.

[62 FR 49589, Sept. 23, 1997, as amended at 64 EVIDENCE FR 15916, Apr. 2, 1999; 70 FR 30608, May 27, 2005] 1201.61 Exclusion of evidence and testimony. 1201.63 Stipulations. PART 1201—PRACTICES AND 1201.64 Official notice. PROCEDURES DISCOVERY Subpart A—Jurisdiction and Definitions 1201.71 Purpose of discovery. 1201.72 Explanation and scope of discovery. Sec. 1201.73 Discovery procedures. 1201.1 General. 1201.74 Orders for discovery. 1201.2 Original jurisdiction. 1201.75 Taking depositions. 1201.3 Appellate jurisdiction. SUBPOENAS 1201.4 General definitions. 1201.81 Requests for subpoenas.

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1201.82 Motions to quash subpoenas. SPECIAL COUNSEL REQUESTS FOR STAYS 1201.83 Serving subpoenas. 1201.134 Deciding official; filing stay re- 1201.84 Proof of service. quest; serving documents on parties. 1201.85 Enforcing subpoenas. 1201.135 Contents of stay request. 1201.136 Action on stay request. INTERLOCUTORY APPEALS 1201.91 Explanation. ACTIONS AGAINST ADMINISTRATIVE LAW 1201.92 Criteria for certifying interlocutory JUDGES appeals. 1201.137 Covered actions; filing complaint; 1201.93 Procedures. serving documents on parties. 1201.138 Contents of complaint. EX PARTE COMMUNICATIONS 1201.139 Rights; answer to complaint. 1201.101 Explanation and definitions. 1201.140 Judge; requirement for finding of 1201.102 Prohibition on ex parte commu- good cause. nications. 1201.141 Judicial review. 1201.103 Placing communications in the 1201.142 Actions filed by administrative law record; sanctions. judges. REMOVAL FROM THE SENIOR EXECUTIVE FINAL DECISIONS SERVICE 1201.111 Initial decision by judge. 1201.143 Right to hearing; filing complaint; 1201.112 Jurisdiction of judge. serving documents on parties. 1201.113 Finality of decision. 1201.144 Hearing procedures; referring the record. Subpart C—Petitions for Review of Initial 1201.145 No appeal. Decisions REQUESTS FOR PROTECTIVE ORDERS 1201.114 Petition and cross petition for review—content and procedure. 1201.146 Requests for protective orders by 1201.115 Criteria for granting petition or the Special Counsel. cross petition for review. 1201.147 Requests for protective orders by 1201.116 Compliance with orders for interim persons other than the Special Counsel. relief. 1201.148 Enforcement of protective orders. 1201.117 Board decisions; procedures for review or reopening. Subpart E—Procedures for Cases Involving 1201.118 Board reopening of final decisions. Allegations of Discrimination 1201.119 OPM petition for reconsideration. 1201.151 Scope and policy. 1201.120 Judicial review. 1201.152 Compliance with subpart B procedures. Subpart D—Procedures for Original 1201.153 Contents of appeal. Jurisdiction Cases 1201.154 Time for filing appeal. 1201.155 Requests for review of arbitrators’ GENERAL decisions. 1201.121 Scope of jurisdiction; application of 1201.156 Time for processing appeals involv- subparts B, F, and H. ing allegations of discrimination. 1201.157 Notice of right to judicial review. SPECIAL COUNSEL DISCIPLINARY ACTIONS REVIEW OF BOARD DECISION 1201.122 Filing complaint; serving documents on parties. 1201.161 Action by the Equal Employment 1201.123 Contents of complaint. Opportunity Commission; judicial review. 1201.124 Rights; answer to complaint. 1201.162 Board action on the Commission de- 1201.125 Administrative law judge. cision; judicial review. 1201.126 Final decisions. 1201.127 Judicial review. SPECIAL PANEL

SPECIAL COUNSEL CORRECTIVE ACTIONS 1201.171 Referral of case to Special Panel. 1201.172 Organization of Special Panel; des- 1201.128 Filing complaint; serving docu- ignation of members. ments on parties. 1201.173 Practices and procedures of Special 1201.129 Contents of complaint. Panel. 1201.130 Rights; answer to complaint. 1201.174 Enforcing the Special Panel deci- 1201.131 Judge. sion. 1201.132 Final decisions. 1201.175 Judicial review of cases decided 1201.133 Judicial review. under 5 U.S.C. 7702.

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Subpart F—Enforcement of Final Decisions over which it has been given jurisdic- and Orders tion by law, rule, or regulation. The Board’s jurisdiction does not depend 1201.181 Authority and explanation. 1201.182 Petition for enforcement. solely on the label or nature of the ac- 1201.183 Procedures for processing petitions tion or decision taken or made but may for enforcement. also depend on the type of Federal appointment the individual received, e.g., Subpart G—Savings Provisions competitive or excepted service, 1201.191 Savings provisions. whether an individual is preference eligible, and other factors. Accordingly, Subpart H—Attorney Fees (Plus Costs, Ex- the laws and regulations cited below, pert Witness Fees, and Litigation Ex- which are the source of the Board’s ju- penses, Where Applicable) and Dam- risdiction, should be consulted to de- ages (Consequential, Liquidated, and termine not only the nature of the ac- Compensatory) tions or decisions that are appealable, 1201.201 Statement of purpose. but also the limitations as to the types 1201.202 Authority for awards. of employees, former employees, or ap- 1201.203 Proceedings for attorney fees. plicants for employment who may as- 1201.204 Proceedings for consequential, liq- sert them. Instances in which a law or uidated, or compensatory damages. regulation authorizes the Board to 1201.205 Judicial review. hear an appeal or claim include the fol- APPENDIX I TO PART 1201 [RESERVED] lowing: APPENDIX II TO PART 1201—APPROPRIATE RE- GIONAL OR FIELD OFFICE FOR FILING AP- (1) Adverse actions. Removals (termi- PEALS nations of employment after comple- APPENDIX III TO PART 1201 [RESERVED] tion of probationary or other initial APPENDIX IV TO PART 1201—SAMPLE DEC- service period), reductions in grade or LARATION UNDER 28 U.S.C. 1746 pay, suspension for more than 14 days, AUTHORITY: 5 U.S.C. 1204, 1305, and 7701, and or furloughs for 30 days or less for 38 U.S.C. 4331, unless otherwise noted. cause that will promote the efficiency SOURCE: 54 FR 53504, Dec. 29, 1989, unless of the service; an involuntary resigna- otherwise noted. tion or retirement is considered to be a removal (5 U.S.C. 7511–7514; 5 CFR part Subpart A—Jurisdiction and 752, subparts C and D); Definitions (2) Retirement appeals. Determina- tions affecting the rights or interests § 1201.1 General. of an individual under the Federal re- The Board has two types of jurisdic- tirement laws (5 U.S.C. 8347(d)(1)–(2) tion, original and appellate. and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 839, 842, 844, and 846); § 1201.2 Original jurisdiction. (3) Termination of probationary employ- The Board’s original jurisdiction in- ment. Appealable issues are limited to a cludes the following cases: determination that the termination (a) Actions brought by the Special was motivated by partisan political Counsel under 5 U.S.C. 1214, 1215, and reasons or marital status, and/or if the 1216; termination was based on a pre-ap- (b) Requests, by persons removed pointment reason, whether the agency from the Senior Executive Service for failed to take required procedures. performance deficiencies, for informal These appeals are not generally avail- hearings; and able to employees in the excepted serv- (c) Actions taken against administra- ice. (38 U.S.C. 2014(b)(1)(D); 5 CFR tive law judges under 5 U.S.C. 7521. 315.806 & 315.908(b)); [54 FR 53504, Dec. 29, 1989, as amended at 62 (4) Restoration to employment following FR 66814, Dec. 22, 1997] recovery from a work-related injury. Fail- ure to restore, improper restoration of, § 1201.3 Appellate jurisdiction. or failure to return following a leave of (a) Generally. The Board’s appellate absence following recovery from a com- jurisdiction is limited to those matters pensable injury. (5 CFR 353.304);

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(5) Performance-based actions under of the employment of another person (5 chapter 43. Reduction in grade or re- CFR 302.501); moval for unacceptable performance (5 (iii) Failure to reinstate a former em- U.S.C. 4303(e); 5 CFR part 432); ployee after service under the Foreign (6) Reduction in force. Separation, de- Assistance Act of 1961 (5 CFR 352.508); motion, or furlough for more than 30 (iv) Failure to re-employ a former days, when the action was effected be- employee after movement between ex- cause of a reduction in force (5 CFR ecutive agencies during an emergency 351.901); Reduction-in-force action af- (5 CFR 352.209); fecting a career or career candidate ap- (v) Failure to re-employ a former em- pointee in the Foreign Service (22 ployee after detail or transfer to an U.S.C. 4011); international organization (5 CFR (7) Employment practices appeal. Em- 352.313); ployment practices administered by (vi) Failure to re-employ a former the Office of Personnel Management to employee after service under the In- examine and evaluate the qualifica- dian Self-Determination Act (5 CFR tions of applicants for appointment in 352.707); or the competitive service (5 CFR 300.104); (vii) Failure to re-employ a former (8) Denial of within-grade pay increase. employee after service under the Tai- Reconsideration decision sustaining a wan Relations Act (5 CFR 352.807). negative determination of competence (b)(1) Appeals under the Uniformed for a general schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410); Services Employment and Reemployment Rights Act and the Veterans Employment (9) Suitability action. Action based on Opportunities Act. Appeals filed under suitability determinations, which re- the Uniformed Services Employment late to an individual’s character or conduct that may have an impact on and Reemployment Rights Act (Public the integrity or efficiency of the serv- Law 103–353), as amended, and the Vet- ice. Suitability actions include the erans Employment Opportunities Act cancellation of eligibility, removal, (Public Law 105–339) are governed by cancellation of reinstatement eligi- part 1208 of this title. The provisions of bility, and debarment. A non-selection subparts A, B, C, and F of part 1201 or cancellation of eligibility for a spe- apply to appeals governed by part 1208 cific position based on an objection to unless other specific provisions are an eligible or a pass over of a pref- made in that part. The provisions of erence eligible under 5 CFR 332.406 is subpart H of this part regarding awards not a suitability action. (5 CFR 731.501, of attorney fees apply to appeals gov- 731.203, 731.101(a)); erned by part 1208 of this title. (10) Various actions involving the Sen- (2) Appeals involving an allegation that ior Executive Service. Removal or sus- the action was based on appellant’s whis- pension for more than 14 days (5 U.S.C. tleblowing or other protected activity. Ap- 7543(d) and 5 CFR 752.605); Reduction- peals of actions appealable to the in-force action affecting a career ap- Board under any law, rule, or regula- pointee (5 U.S.C. 3595); Furlough of a tion, in which the appellant alleges career appointee (5 CFR 359.805); Re- that the action was taken because of moval or transfer of a Senior Executive the appellant’s whistleblowing or other Service employee of the Department of protected activity, are governed by Veterans Affairs (38 U.S.C. 713 and 5 part 1209 of this title. The provisions of CFR part 1210); and subparts B, C, E, F, and G of part 1201 (11) Miscellaneous restoration and reem- apply to appeals and stay requests gov- ployment matters. erned by part 1209 unless other specific (i) Failure to afford reemployment provisions are made in that part. The priority rights pursuant to a Reem- provisions of subpart H of this part re- ployment Priority List following sepa- garding awards of attorney fees, com- ration by reduction in force (5 CFR pensatory damages, and consequential 330.214); damages under 5 U.S.C. 1221(g) apply to (ii) Full recovery from a compensable appeals governed by part 1209 of this injury after more than 1 year, because chapter.

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(c) Limitations on appellate jurisdic- gotiated grievance procedure, or seeks tion, collective bargaining agreements, corrective action from the Special and election of procedures: Counsel by making an allegation under (1) For an employee covered by a col- 5 U.S.C. 1214(a)(1), whichever event oc- lective bargaining agreement under 5 curs first. U.S.C. 7121, the negotiated grievance (3) Review of discrimination grievances. procedures contained in the agreement If an employee chooses the negotiated are the exclusive procedures for resolv- grievance procedure under paragraph ing any action that could otherwise be (c)(2) of this section and alleges dis- appealed to the Board, with the fol- crimination as described at 5 U.S.C. lowing exceptions: 2302(b)(1), then the employee, after hav- (i) An appealable action involving ing obtained a final decision under the discrimination under 5 U.S.C. 2302(b)(1), negotiated grievance procedure, may reduction in grade or removal under 5 ask the Board to review that final deci- U.S.C. 4303, or adverse action under 5 sion. The request must be filed with U.S.C. 7512, may be raised under the the Clerk of the Board in accordance Board’s appellate procedures, or under with § 1201.154. the negotiated grievance procedures, [54 FR 53504, Dec. 29, 1989, as amended at 56 but not under both; FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, (ii) An appealable action involving a 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, prohibited personnel practice other Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR than discrimination under 5 U.S.C. 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001; 70 2302(b)(1) may be raised under not more FR 30608, May 27, 2005; 72 FR 56884, Oct. 5, 2007; 74 FR 9343, Mar. 4, 2009; 77 FR 62363, Oct. than one of the following procedures: 12, 2012; 78 FR 39545, July 2, 2013; 79 FR 48943, (A) The Board’s appellate procedures; Aug. 19, 2014] (B) The negotiated grievance procedures; or § 1201.4 General definitions. (C) The procedures for seeking cor- (a) Judge. Any person authorized by rective action from the Special Counsel the Board to hold a hearing or to de- under subchapters II and III of chapter cide a case without a hearing, includ- 12 of title 5 of the United States Code. ing the Board or any member of the (iii) Except for actions involving dis- Board, or an administrative law judge crimination under 5 U.S.C. 2302(b)(1) or appointed under 5 U.S.C. 3105 or other any other prohibited personnel prac- employee of the Board designated by tice, any appealable action that is ex- the Board to hear such cases, except cluded from the application of the ne- that in any case involving a removal gotiated grievance procedures may be from the service, the case shall be raised only under the Board’s appellate heard by the Board, an employee expe- procedures. rienced in hearing appeals, or an ad- (2) Choice of procedure. When an em- ministrative law judge. ployee has an option of pursuing an ac- (b) Pleading. Written submission set- tion under the Board’s appeal proce- ting out claims, allegations, argu- dures or under negotiated grievance ments, or evidence. Pleadings include procedures, the Board considers the briefs, motions, petitions, attach- choice between those procedures to ments, and responses. have been made when the employee (c) Motion. A request that a judge timely files an appeal with the Board take a particular action. or timely files a written grievance, (d) Appropriate regional or field office. whichever event occurs first. When an The regional or field office of the Board employee has the choice of pursuing an that has jurisdiction over the area appealable action involving a prohib- where the appellant’s duty station was ited personnel practice other than dis- located when the agency took the ac- crimination under 5 U.S.C. 2302(b)(1) in tion. Appeals of Office of Personnel accordance with paragraph (c)(1)(ii) of Management reconsideration decisions this section, the Board considers the concerning retirement benefits, and ap- choice among those procedures to have peals of adverse suitability determina- been made when the employee timely tions under 5 CFR part 731, must be files an appeal with the Board, timely filed with the regional or field office files a written grievance under the ne- that has jurisdiction over the area

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where the appellant lives. Appendix II (n) E-filer. A party or representative of these regulations lists the geo- who has registered to engage in e-filing graphic areas over which each of the under paragraph (e) of § 1201.14. Board’s regional and field offices has (o) Grievance. A complaint by an em- jurisdiction. Appeals, however, may be ployee or labor organization under a transferred from one regional or field negotiated grievance procedure covered office to another. by 5 U.S.C. 7121. (e) Party. A person, an agency, or an (p) Substantial evidence. The degree of intervenor, who is participating in a relevant evidence that a reasonable Board proceeding. This term applies to person, considering the record as a the Office of Personnel Management whole, might accept as adequate to and to the Office of Special Counsel support a conclusion, even though when those organizations are partici- other reasonable persons might dis- pating in a Board proceeding. agree. This is a lower standard of proof than preponderance of the evidence. (f) Appeal. A request for review of an agency action. (q) Preponderance of the evidence. The degree of relevant evidence that a rea- (g) Petition for review. A request for sonable person, considering the record review of an initial decision of a judge. as a whole, would accept as sufficient (h) Day. Calendar day. to find that a contested fact is more (i) Service. The process of furnishing a likely to be true than untrue. copy of any pleading to Board officials, (r) Harmful error. Error by the agency other parties, or both, by mail, by fac- in the application of its procedures simile, by commercial or personal de- that is likely to have caused the agen- livery, or by electronic filing (e-filing) cy to reach a conclusion different from in accordance with § 1201.14. the one it would have reached in the (j) Date of service. ‘‘Date of service’’ absence or cure of the error. The bur- has the same meaning as ‘‘date of fil- den is upon the appellant to show that ing’’ under paragraph (l) of this sec- the error was harmful, i.e., that it tion. caused substantial harm or prejudice (k) Certificate of service. A document to his or her rights. certifying that a party has served cop- (s) Nonfrivolous allegation. A nonfrivo- ies of pleadings on the other parties or, lous allegation is an assertion that, if in the case of paper documents associ- proven, could establish the matter at ated with electronic filings under para- issue. An allegation generally will be graph (h) of § 1201.14, on the MSPB. considered nonfrivolous when, under (l) Date of filing. A document that is oath or penalty of perjury, an indi- filed with a Board office by personal vidual makes an allegation that: delivery is considered filed on the date (1) Is more than conclusory; on which the Board office receives it. (2) Is plausible on its face; and The date of filing by facsimile is the (3) Is material to the legal issues in date of the facsimile. The date of filing the appeal. by mail is determined by the postmark [54 FR 53504, Dec. 29, 1989, as amended at 58 date; if no legible postmark date ap- FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, pears on the mailing, the submission is 1994; 68 FR 59860, Oct. 20, 2003; 69 FR 57628, presumed to have been mailed five days Sept. 27, 2004; 73 FR 10129, Feb. 26, 2008; 77 FR (excluding days on which the Board is 62364, Oct. 12, 2012; 80 FR 4496, Jan. 28, 2015] closed for business) before its receipt. The date of filing by commercial deliv- Subpart B—Procedures for ery is the date the document was deliv- Appellate Cases ered to the commercial delivery service. The date of filing by e-filing is the GENERAL date of electronic submission. (m) Electronic filing (e-filing). Filing § 1201.11 Scope and policy. and receiving documents in electronic The regulations in this subpart apply form in proceedings within the Board’s to Board appellate proceedings except appellate or original jurisdiction in ac- as otherwise provided in § 1201.13. The cordance with § 1201.14. regulations in this subpart apply also

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to appellate proceedings and stay re- parties and representatives may use quests covered by part 1209 unless electronic filing (e-filing) to do any of other specific provisions are made in the following: that part. These regulations also apply (1) File any pleading, including a new to original jurisdiction proceedings of appeal, in any matter within the the Board except as otherwise provided MSPB’s appellate jurisdiction (§ 1201.3); in subpart D. It is the Board’s policy (2) File any pleading in any matter that these rules will be applied in a within the MSPB’s original jurisdic- manner that expedites the processing tion (§ 1201.2); of each case. It is the Board’s policy (3) File a petition for enforcement of that these rules will be applied in a a final MSPB decision (§ 1201.182); manner that ensures the fair and effi- (4) File a motion for an attorney fee cient processing of each case. award as a prevailing party (§ 1201.203); [74 FR 9343, Mar. 4, 2009] (5) File a motion for compensatory or consequential damages (§ 1201.204); § 1201.12 Revocation, amendment, or (6) Designate a representative, re- waiver of rules. voke such a designation, or change The Board may revoke, amend, or such a designation (§ 1201.31); or waive any of these regulations. A judge (7) Notify the MSPB of a change in may, for good cause shown, waive a contact information such as address Board regulation unless a statute re- (geographic or electronic mail) or tele- quires application of the regulation. phone number. The judge must give notice of the waiv- (c) Matters excluded from electronic filer to all parties, but is not required to ing. Electronic filing may not be used give the parties an opportunity to re- to: spond. (1) File a request to hear a case as a class appeal or any opposition thereto § 1201.13 Appeals by Board employees. (§ 1201.27); Appeals by Board employees will be (2) Serve a subpoena (§ 1201.83); filed with the Clerk of the Board and (3) File a pleading with the Special will be assigned to an administrative Panel (§ 1201.137); law judge for adjudication under this (4) File a pleading that contains Sen- subchapter. The Board’s policy is to in- sitive Security Information (SSI) (49 sulate the adjudication of its own em- CFR parts 15 and 1520); ployees’ appeals from agency involve- (5) File a pleading that contains clas- ment as much as possible. Accordingly, sified information (32 CFR part 2001); the Board will not disturb initial deci- or sions in those cases unless the party (6) File a request to participate as an shows that there has been harmful pro- amicus curiae or file a brief as amicus cedural irregularity in the proceedings curiae pursuant to § 1201.34 of this part. before the administrative law judge or (d) Internet is sole venue for electronic a clear error of law. In addition, the filing. Following the instructions at e- Board, as a matter of policy, will not Appeal Online, the MSPB’s e-Appeal rule on any interlocutory appeals or site (https://e-appeal.mspb.gov), is the motions to disqualify the administra- only method allowed for filing elec- tive law judge assigned to those cases tronic pleadings with the MSPB. The until the initial decision has been MSPB will not accept pleadings filed issued. by electronic mail (e-mail). (e) Registration as an e-filer. (1) Reg- § 1201.14 Electronic filing procedures. istration as an e-filer constitutes con- (a) General. This section prescribes sent to accept electronic service of the rules and procedures by which par- pleadings filed by other registered e-fil- ties and representatives to proceedings ers and documents issued by the within the MSPB’s appellate and origi- MSPB. Except when filing a new appeal nal jurisdiction may file and receive within the MSPB’s appellate jurisdic- documents in electronic form. tion (§ 1201.3), no party or representa- (b) Matters subject to electronic filing. tive may file an electronic pleading Subject to the registration require- with the MSPB unless he or she has ment of paragraph (e) of this section, registered with the MSPB as an e-filer.

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(2) With the exception of a designa- (g) Form of electronic pleadings—(1) tion of a representative by a party who Options for e-filing. An appellant or rep- is an individual, the exclusive means resentative using e-Appeal Online to for a party or representative to reg- file a new appeal within the MSPB’s ister as an e-filer during an MSPB pro- appellate jurisdiction (§ 1201.3) must ceeding is to follow the instructions at complete the structured interview at e-Appeal Online (https://e-ap- that site (https://e-appeal.mspb.gov). For peal.mspb.gov). all other pleadings, the e-filer has the (3) When a party who is an individual option of uploading an electronic file is represented, the party and the rep- or entering the text of the pleading on- resentative can make separate deter- line. Regardless of the means of filing a minations whether to register as an e- particular pleading, the e-filer will be filer. For example, an appellant may allowed to submit supporting docu- file and receive pleadings and MSPB mentation such as attachments, in ei- documents by non-electronic means, ther electronic or paper form, as de- even though his or her representative scribed in paragraphs (g)(2), (g)(3), and has registered as an e-filer. When a (h) of this section. party has more than one representa- (2) Electronic formats allowed. The tive, however, all representatives must MSPB will accept numerous electronic choose the same method of service. formats, including word-processing and (4) A party or representative may spreadsheet formats, Portable Docu- withdraw his or her registration as an ment Format (PDF), and image files e-filer. Such withdrawal means that, (files created by scanning). A list of effective upon the MSPB’s receipt of formats allowed can be found at e-Ap- this withdrawal, pleadings and MSPB peal Online. All electronic documents documents will no longer be served on must be formatted so that they will that person in electronic form. A with- print on standard 81⁄2 inch by 11 inch drawal of registration as an e-filer may paper. be filed at e-Appeal Online, in which (3) Requirements for pleadings with 3 or case service is governed by paragraph more electronic attachments. An e-filer (j) of this section, or by non-electronic who uploads 3 or more supporting docu- means, in which case service is gov- ments, in addition to the document erned by § 1201.26(b). that constitutes the primary pleading, (5) Registration as an e-filer applies must identify each attachment, either only to a single MSPB appeal or pro- by filling out the table for such attach- ceeding. If an appeal is dismissed with- ments at e-Appeal Online, or by out prejudice, however, and is later uploading the supporting documents in refiled, an election of e-filing status the form of one or more PDF files in will remain in effect. An election of e- which each attachment is bookmarked. filing status will also remain in effect Each attachment must be designated for purposes of filing a petition for en- with a brief descriptive label, which forcement under Subpart F of this will include exhibit numbers or letters part, or filing a motion for an attorney where appropriate or required, e.g., fee award or compensatory or con- ‘‘Exh. 4b, Decision Notice.’’ sequential damages under Subpart H of (h) Hybrid pleadings that include both this Part. electronic and paper documents. An e- (6) Each e-filer must notify the filer may file a hybrid pleading in MSPB and other participants of any which part of the pleading is submitted change in his or her e-mail address. electronically, and part of the pleading When done via e-Appeal Online, such consists of one or more paper docu- notification is done by selecting the ments filed by non-electronic means. ‘‘Pleading’’ option. All components of a hybrid pleading (f) e-Filing not mandatory for e-filers. A are subject to applicable time limits. If party or representative who has reg- one or more parts of a hybrid pleading istered as an e-filer may file any plead- are untimely filed, the judge or the ing by non-electronic means, i.e., via Clerk may reject the untimely part or postal mail, fax, or personal or com- parts while accepting timely filed parts mercial delivery. of the same pleading.

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(i) Repository at e-Appeal Online. All (k) Documents requiring a signature. notices, orders, decisions, and other Electronic documents filed by a party documents issued by the MSPB, as well who has registered as an e-filer pursu- as all pleadings filed via e-Appeal On- ant to this section shall be deemed to line, will be made available to parties be signed for purposes of any regula- and their representatives for viewing tion in part 1201, 1203, 1208, or 1209 of and downloading at the Repository at this chapter that requires a signature. e-Appeal Online. In addition, most (l) Affidavits and declarations made pleadings filed at the petition for re- under penalty of perjury. Registered e- view stage of adjudication, and some filers may submit electronic pleadings pleadings filed at the regional office in the form of declarations made under level, will be available at the Reposi- penalty of perjury under 28 U.S.C. 1746, tory. Also available at the Repository as described in Appendix IV to this will be an electronic ‘‘docket sheet’’ part. If the declarant is someone other listing all documents issued by the than the e-filer, a physically signed af- MSPB to the parties, as well as all fidavit or declaration should be pleadings filed by the parties, includ- uploaded as an image file, or submitted ing those pleadings that are not avail- separately as a non-electronic docu- able for viewing and downloading in ment under paragraph (h) of this sec- electronic form. Access to appeal docu- tion. ments at the Repository will be limited (m) Date electronic documents are filed to the parties and representatives of and served. (1) As provided in § 1201.4(l) the appeals in which they were filed. of this part, the date of filing for plead- (j) Service of electronic pleadings and ings filed via e-Appeal Online is the MSPB documents. (1) When MSPB docu- date of electronic submission. All ments are issued, e-mail messages will pleadings filed via e-Appeal Online are be sent to e-filers that notify them of time stamped with Eastern Time, but the issuance and that contain links to the timeliness of a pleading will be de- the Repository where the documents termined based on the time zone from can be viewed and downloaded. Paper which the pleading was submitted. For copies of these documents will not or- example, a pleading filed at 11 p.m. Pa- dinarily be served on e-filers. Pleadings cific Time on August 20 will be submitted via e-Appeal Online will be stamped by e-Appeal Online as being available to parties and representa- filed at 2 a.m. Eastern Time on August tives at the e-Appeal Online Reposi- 21. However, if the pleading was re- tory, and the MSPB will send e-mail quired to be filed with the Washington messages to other e-filers notifying Regional Office (in the Eastern Time them of each pleading, with a link to Zone) on August 20, it would be consid- the Repository. When using e-Appeal ered timely, as it was submitted prior Online to file a pleading, e-filers will be to midnight Pacific Time on August 20. notified of all documents that must be (2) MSPB documents served elec- served by non-electronic means, and tronically on registered e-filers are they must certify that they will serve deemed received on the date of elec- all such documents no later than the tronic submission. first business day after the electronic (n) Authority of a judge or the Clerk to submission. regulate e-filing. (1) In the event that (2) Delivery of e-mail can encounter a the MSPB or any party encounters dif- number of failure points. If the MSPB ficulties filing, serving, or receiving is advised of non-delivery, it will at- electronic documents, the judge or the tempt to redeliver and, if that is unsuc- Clerk of the Board may order one or cessful, will deliver by postal mail or more parties to cease filing pleadings other means. E-filers are responsible by e-filing, cease serving documents in for ensuring that e-mail from electronic form, or take both these ac- @mspb.gov is not blocked by filters. tions. In such instances, filing and (3) E-filers are responsible for moni- service shall be undertaken in accord- toring case activity at the Repository ance with § 1201.26. The authority to at e-Appeal Online to ensure that they order the cessation of the use of elec- have received all case-related docu- tronic filing may be for a particular ments. submission, for a particular time

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frame, or for the duration of the pend- APPEAL OF AGENCY ACTION; PLEADINGS ency of a case. (2) A judge or the Clerk of the Board § 1201.21 Notice of appeal rights. may require that any document filed When an agency issues a decision no- electronically be submitted in non- tice to an employee on a matter that is electronic form and bear the written appealable to the Board, the agency signature of the submitter. A party re- must provide the employee with the ceiving such an order from a judge or following: the Clerk of the Board shall, within 5 (a) Notice of the time limits for ap- calendar days, serve on the judge or pealing to the Board, the requirements Clerk of the Board by postal mail, by of § 1201.22(c), and the address of the ap- fax, or by commercial or personal de- propriate Board office for filing the ap- livery a signed, non-electronic copy of peal; the document. (b) A copy, or access to a copy, of the (o) MSPB reserves the right to revert to Board’s regulations; traditional methods of service. The MSPB may serve documents via traditional (c) A copy, or access to a copy, of the means—postal mail, fax, personal or MSPB appeal form available at the commercial delivery—at its discretion. Board’s Web site (http://www.mspb.gov), Parties and their representatives are and responsible for ensuring that the MSPB (d) Notice of any right the employee always has their current postal mailing has to file a grievance or seek correc- addresses, even when they have reg- tive action under subchapters II and III istered as e-filers. of 5 U.S.C. chapter 12, including: (p)(1) Except as provided in para- (1) Whether the election of any appli- graphs (p)(2) and (3) of this section, all cable grievance procedure will result in pleadings (including the initial appeal) waiver of the employee’s right to file except those containing classified in- an appeal with the Board; formation or Sensitive Security Infor- (2) Whether both an appeal to the mation filed with the Washington Re- Board and a grievance may be filed on gional Office (WRO) and the Denver the same matter and, if so, the cir- Field Office (DEFO) by agencies or at- cumstances under which proceeding torneys must be e-filed. Agencies and with one will preclude proceeding with attorneys in proceedings in the WRO the other, and specific notice that fil- and the DEFO must register as e-filers ing a grievance will not extend the pursuant to paragraph (e) of this sec- time limit for filing an appeal with the tion. Board; (2) Agencies or attorneys who believe (3) Whether there is any right to re- that e-filing would create an undue quest Board review of a final decision burden on their operations may request on a grievance in accordance with an exemption from the administrative § 1201.155 of this part; and judge for a specific appeal and/or plead- (4) The effect of any election under 5 ing. Such a request shall include a spe- U.S.C. 7121(g), including the effect that cific and detailed explanation why e- seeking corrective action under sub- filing would create an undue burden. chapters II and III of 5 U.S.C. chapter (3) Except in unusual circumstances, 12 will have on the employee’s appeal exemptions granted under this section rights before the Board. shall apply only to pleadings that in- (e) Notice of any right the employee clude scanned material. All other has to file a complaint with the Equal pleadings except those containing clas- Employment Opportunity Commission sified information or Sensitive Secu- or to grieve allegations of unlawful dis- rity Information must be e-filed. The crimination, consistent with the provi- administrative judge may periodically sions of 5 U.S.C. 7121(d) and 29 CFR revisit the need for an exemption 1614.301 and 1614.302. granted under this subsection, and re- (f) The name or title and contact in- voke the exemption as appropriate. formation for the agency official to [73 FR 10129, Feb. 26, 2008, as amended at 76 whom the Board should send the Ac- FR 63538, Oct. 13, 2011; 77 FR 62364, Oct. 12, knowledgment Order and copy of the 2012] appeal in the event the employee files

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an appeal with the Board. Contact in- ered to the addressee. While such a pre- formation should include the official’s sumption may be overcome under the mailing address, email address, tele- circumstances of a particular case, an phone and fax numbers. appellant may not avoid service of a [74 FR 9343, Mar. 4, 2009, as amended at 77 FR properly addressed and mailed decision 62364, Oct. 12, 2012; 78 FR 21518, Apr. 11, 2013] by intentional or negligent conduct which frustrates actual service. The § 1201.22 Filing an appeal and re- appellant may also be deemed to have sponses to appeals. received the agency’s decision if it was (a) Place of filing. Appeals, and re- received by a designated representative sponses to those appeals, must be filed or a person of suitable age and discre- with the appropriate Board regional or tion residing with the appellant. The field office. See § 1201.4(d) of this part. following examples illustrate the appli- (b) Time of filing. (1) Except as pro- cation of this rule: vided in paragraph (b)(2) of this sec- Example A: An appellant who fails to pick tion, an appeal must be filed no later up mail delivered to his or her post office box than 30 days after the effective date, if may be deemed to have received the agency any, of the action being appealed, or 30 decision. days after the date of the appellant’s Example B: An appellant who did not re- receipt of the agency’s decision, which- ceive his or her mail while in the hospital ever is later. Where an appellant and may overcome the presumption of actual re- an agency mutually agree in writing to ceipt. attempt to resolve their dispute Example C: An appellant may be deemed to through an alternative dispute resolu- have received an agency decision received by tion process prior to the timely filing his or her roommate. of an appeal, however, the time limit (c) Timeliness of appeals. If a party for filing the appeal is extended by an does not submit an appeal within the additional 30 days—for a total of 60 time set by statute, regulation, or days. A response to an appeal must be order of a judge, it will be dismissed as filed within 20 days of the date of the untimely filed unless a good reason for Board’s acknowledgment order. The the delay is shown. The judge will pro- time for filing a submission under this vide the party an opportunity to show section is computed in accordance with why the appeal should not be dismissed § 1201.23 of this part. as untimely. (2) The time limit prescribed by para- (d) Method of filing an appeal. Filing graph (b)(1) of this section for filing an of an appeal must be made with the ap- appeal does not apply where a law or propriate Board office by commercial regulation establishes a different time or personal delivery, by facsimile, by limit or where there is no applicable mail, or by electronic filing under time limit. No time limit applies to ap- § 1201.14. peals under the Uniformed Services (e) Filing a response. Filing of a re- Employment and Reemployment sponse must be made with the appro- Rights Act (Pub. L. 103–353), as amend- priate Board office by commercial or ed; see part 1208 of this title. See part personal delivery, by facsimile, by 1208 of this title for the statutory filing mail, or by electronic filing under time limits applicable to appeals under § 1201.14. the Veterans Employment Opportuni- ties Act (Pub. L. 105–339). See part 1209 [54 FR 53504, Dec. 29, 1989] of this title for the statutory filing EDITORIAL NOTE: For FEDERAL REGISTER ci- time limits applicable to whistleblower tations affecting § 1201.22, see the List of CFR appeals and stay requests. Sections Affected, which appears in the (3) An appellant is responsible for Finding Aids section of the printed volume keeping the agency informed of his or and at www.govinfo.gov. her current home address for purposes of receiving the agency’s decision, and § 1201.23 Computation of time. correspondence which is properly ad- In computing the number of days al- dressed and sent to the appellant’s ad- lowed for complying with any deadline, dress via postal or commercial delivery the first day counted is the day after is presumed to have been duly deliv- the event from which the time period

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begins to run. If the date that ordi- sonnel action. No other attachments narily would be the last day for filing should be included with the appeal, as falls on a Saturday, Sunday, or Federal the agency will be submitting the doc- holiday, the filing period will include uments required by 1201.25 of this part, the first workday after that date. Un- and there will be several opportunities less a different deadline is specified by to submit evidence and argument after the Board or its designee, 5 days are the appeal is filed. An appellant should added to a party’s deadline for respond- not miss the deadline for filing merely ing to a document served on the party because he or she does not currently by mail. have all of the documents specified in this section. Example 1: If an employee receives a deci- (8) A statement telling whether the sion notice that is effective on July 1, the 30- day period for filing an appeal starts to run appellant or anyone acting on his or on July 2. The filing ordinarily would be her behalf has filed a grievance or a timely only if it is made by July 31. If July formal discrimination complaint with 31 is a Saturday, however, the last day for any agency regarding this matter; and filing would be Monday, August 2. (9) The signature of the appellant or, Example 2: The judge orders the appellant if the appellant has a representative, of to file a response to a jurisdictional order no the representative. If the appeal is later than October 15, 2012, and that the electronically filed, compliance with agency’s response is due 10 days after the filing of the appellant’s pleading. If the appel- § 1201.14 and the directions at the lant serves the agency with a pleading via Board’s e-Appeal site (https://e-ap- regular mail on October 15, the agency’s peal.mspb.gov) satisfy the signature re- deadline for filing a response will be October quirement. 30, not October 25. (b) An appellant may raise a claim or [77 FR 62364, Oct. 12, 2012] defense not included in the appeal at any time before the end of the con- § 1201.24 Content of an appeal; right to ference(s) held to define the issues in hearing. the case. An appellant may not raise a (a) Content. Only an appellant, his or new claim or defense after that time, her designated representative, or a except for good cause shown. However, party properly substituted under a claim or defense not included in the § 1201.35 may file an appeal. Appeals appeal may be excluded if a party may be in any format, including letter shows that including it would result in form. An appeal may be filed in elec- undue prejudice. tronic form provided that the require- (c) Use of Board form or electronic fil- ments of § 1201.14 have been satisfied. ing. An appellant may comply with All appeals must contain the following: paragraph (a) of this section, and with (1) The name, address, and telephone § 1201.31, by completing MSPB Form number of the appellant, and the name 185, or by completing all requests for and address of the agency that took information marked as required at the the action; e-Appeal site (https://e-appeal.mspb.gov). (2) A description of the action the MSPB Form 185 can be accessed at the agency took and its effective date; Board’s Web site (http://www.mspb.gov). (3) A request for hearing if the appel- (d) Right to hearing. An appellant gen- lant wants one; erally has a right to a hearing on the (4) A statement of the reasons why merits if the appeal has been timely the appellant believes the agency ac- filed and the Board has jurisdiction tion is wrong; over the appeal. (5) A statement of the action the ap- (e) Timely request. The appellant must pellant would like the judge to order; submit any request for a hearing with (6) The name, address, and telephone the appeal, or within any other time number of the appellant’s representa- period the judge sets for that purpose. tive, if the appellant has a representa- If the appellant does not make a timely tive; request for a hearing, the right to a (7) Where applicable, a copy of the hearing is waived. notice of proposed action, the agency [54 FR 53504, Dec. 29, 1989, as amended at 68 decision being appealed and, if avail- FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 27, able, the SF–50 or similar notice of per- 2004; 77 FR 62364, Oct. 12, 2012]

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§ 1201.25 Content of agency response. must be formatted so that they will print on 81⁄2 by 11-inch paper. The agency response to an appeal must contain the following: [54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, (a) The name of the appellant and of 1990, as amended at 58 FR 36345, July 7, 1993; the agency whose action the appellant 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 27, 2004] is appealing; (b) A statement identifying the agen- § 1201.27 Class appeals. cy action taken against the appellant (a) Appeal. One or more employees and stating the reasons for taking the may file an appeal as representatives action; of a class of employees. The judge will (c) All documents contained in the hear the case as a class appeal if he or agency record of the action; she finds that a class appeal is the fair- (d) Designation of and signature by est and most efficient way to adju- the authorized agency representative; dicate the appeal and that the rep- and resentative of the parties will ade- (e) Any other documents or responses quately protect the interests of all par- requested by the Board. ties. When a class appeal is filed, the time from the filing date until the § 1201.26 Number of pleadings, service, judge issues his or her decision under and response. paragraph (b) of this section is not (a) Number. The appellant must file counted in computing the time limit two copies of both the appeal and all for individual members of the potential attachments with the appropriate class to file individual appeals. Board office, unless the appellant files (b) Procedure. The judge will consider an appeal in electronic form under the appellant’s request and any opposi- § 1201.14. tion to that request, and will issue an (b) Service—(1) Service by the Board. order within 30 days after the appeal is The appropriate office of the Board will filed stating whether the appeal is to mail a copy of the appeal to each party be heard as a class appeal. If the judge to the proceeding other than the appel- denies the request, the appellants af- lant. It will attach to each copy a serv- fected by the decision may file indi- ice list, consisting of a list of the vidual appeals within 30 days after the names and addresses of the parties to date of receipt of the decision denying the proceeding or their designated rep- the request to be heard as a class ap- resentatives. peal. Each individual appellant is re- (2) Service by the parties. The parties sponsible for either filing an individual must serve on each other one copy of appeal within the original time limit, each pleading, as defined by § 1201.4(b), or keeping informed of the status of a and all documents submitted with it, class appeal and, if the class appeal is except for the appeal. They may do so denied, filing an individual appeal by mail, by facsimile, by commercial within the additional 35-day period. or personal delivery, or by electronic (c) Standards. In determining whether filing in accordance with § 1201.14. Doc- it is appropriate to treat an appeal as uments and pleadings must be served a class action, the judge will be guided upon each party and each representa- but not controlled by the applicable tive. A certificate of service stating provisions of the Federal Rules of Civil how and when service was made must Procedure. accompany each pleading. The parties (d) Electronic filing. A request to hear must notify the appropriate Board of- a case as a class appeal and any opposi- fice and one another, in writing, of any tion thereto may not be filed in elec- changes in the names, or addresses on tronic form. Subsequent pleadings may the service list. be filed and served in electronic form, (c) Paper size. Pleadings and attach- provided that the requirements of ments must be filed on 81⁄2 by 11-inch § 1201.14 are satisfied. paper, except for good cause shown. [54 FR 53504, Dec. 29, 1989, as amended at 59 This requirement enables the Board to FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, comply with standards established for 1997; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, U.S. courts. All electronic documents Sept. 27, 2004]

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§ 1201.28 Case suspension procedures. appellant, the appeal will be automati- (a) Suspension period. The judge may cally refiled as of a date certain. issue an order suspending the proc- (d) Waiver. When a dismissed appeal essing of an appeal for up to 30 days. must be refiled by the appellant, re- The judge may grant a second order quests for waiver of a late filing based suspending the processing of an appeal upon good cause will be liberally con- for up to an additional 30 days. strued. (b) Early termination of suspension pe- [77 FR 62365, Oct. 12, 2012] riod. The administrative judge may ter- minate the suspension period upon PARTIES, REPRESENTATIVES, AND joint request of the parties or where WITNESSES the parties request the judge’s assistance and the judge’s involvement is § 1201.31 Representatives. likely to be extensive. (c) Termination of suspension period. If (a) Procedure. A party to an appeal the final day of any suspension period may be represented in any matter re- falls on a day on which the Board is lated to the appeal. Parties may des- closed for business, adjudication shall ignate a representative, revoke such a resume as of the first business day fol- designation, and change such a des- lowing the expiration of the period. ignation in a signed submission, sub- (d) Mediation. Whenever an appeal is mitted as a pleading. accepted into the Board’s Mediation (b) A party may choose any rep- Appeals Program (MAP), the proc- resentative as long as that person is essing of the appeal and all deadlines willing and available to serve. The are suspended until the mediator re- other party or parties may challenge turns the case to the judge. This provi- the designation, however, on the sion does not apply where the parties ground that it involves a conflict of in- enter into other forms of alternative dispute resolution. terest or a conflict of position. Any party who challenges the designation [77 FR 62365, Oct. 12, 2012] must do so by filing a motion with the judge within 15 days after the date of § 1201.29 Dismissal without prejudice. service of the notice of designation or (a) In general. Dismissal without prej- 15 days after a party becomes aware of udice is a procedural option that allows the conflict. The judge will rule on the for the dismissal and subsequent re- motion before considering the merits filing of an appeal. of the appeal. These procedures apply (b) Procedure. Dismissal without prej- equally to each designation of rep- udice may be granted on the judge’s own motion or upon request by either resentative, regardless of whether the party. The decision whether to dismiss representative was the first one des- an appeal without prejudice is com- ignated by a party or a subsequently mitted to the sound discretion of the designated representative. If a rep- judge, and may be granted when the in- resentative is disqualified, the judge terests of fairness, due process, and ad- will give the party whose representa- ministrative efficiency outweigh any tive was disqualified a reasonable time prejudice to either party. to obtain another one. (c) Refiling. Except in certain (c) The judge, on his or her own mo- USERRA appeals under Part 1208 in- tion, may disqualify a party’s rep- volving the use of military leave, a de- resentative on the grounds described in cision dismissing an appeal without paragraph (b) of this section. prejudice will include a date certain by (d) As set forth in paragraphs (d) and which the appeal must be refiled. The (e) of § 1201.43 of this part, a judge may judge will determine whether the ap- exclude a representative from all or peal must be refiled by the appellant or any portion of the proceeding before whether it will be automatically refiled by the judge as of a date cer- him or her for contumacious conduct tain. When a dismissal without prejudice is issued over the objection of the

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or conduct prejudicial to the adminis- § 1201.34 Intervenors and amicus cu- tration of justice. riae. [54 FR 53504, Dec. 29, 1989, as amended at 62 (a) Explanation of Intervention. Inter- FR 62689, Nov. 25, 1997; 62 FR 66815, Dec. 22, venors are organizations or persons 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, who want to participate in a pro- Feb. 4, 2000; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62365, Oct. 12, 2012] ceeding because they believe the proceeding, or its outcome, may affect § 1201.32 Witnesses; right to represen- their rights or duties. Intervenors as a tation. ‘‘matter of right’’ are those parties Witnesses have the right to be rep- who have a statutory right to partici- resented when testifying. The rep- pate. ‘‘Permissive’’ intervenors are resentative of a nonparty witness has those parties who may be permitted to no right to examine the witness at the participate if the proceeding will affect hearing or otherwise participate in the them directly and if intervention is development of testimony. otherwise appropriate under law. A request to intervene may be made by mo- § 1201.33 Federal witnesses. tion filed with the judge. (a) Every Federal agency or corpora- (b) Intervenors as a matter of right. (1) tion, including nonparties, must make The Director of the Office of Personnel its employees or personnel available to Management may intervene as a mat- furnish sworn statements or to appear ter of right under 5 U.S.C. 7701(d)(1). at a deposition or hearing when or- The motion to intervene must be filed dered by the judge to do so. When pro- at the earliest practicable time. viding those statements or appearing (2)(i) Except as provided in paragraph at a deposition or at the hearing, Fed- (b)(2)(ii) of this section, the Special eral employee witnesses will be in offi- Counsel may intervene as a matter of cial duty status (i.e., entitled to pay right under 5 U.S.C. 1212(c). The motion and benefits including travel and per to intervene must be filed at the ear- diem, where appropriate). When a de- liest practicable time. sired witness is employed by an agency (ii) The Special Counsel may not in- who is not a party to the Board pro- tervene in an action brought by an in- ceeding, the requesting party may dividual under 5 U.S.C. 1221, or in an avail itself of the provisions of sections appeal brought by an individual under 1201.81 to 1201.85 of this part regarding 5 U.S.C. 7701, without the consent of subpoenas to ensure the attendance of that individual. The Special Counsel the witness. In addition, the Board and must present evidence that the indi- the parties will implement this provision, to the maximum extent possible, vidual has consented to the interven- to avoid conflict with other regulations tion at the time the motion to inter- governing the production of Federal vene is filed. employees in matters in litigation. (c) Permissive intervenors. (1) Any per- (b) A Federal employee who is denied son, organization or agency may, by the official time required by paragraph motion, ask the judge for permission to (a) of this section may file a written re- intervene. The motion must explain quest that the judge order the employ- the reason why the person, organiza- ing agency to provide such official tion or agency should be permitted to time. The judge will act on such a re- intervene. quest promptly and, where warranted, (2) A motion for permission to inter- will order the agency to comply with vene will be granted where the re- the requirements of paragraph (a) of quester will be affected directly by the this section. outcome of the proceeding. Any person (c) An order obtained under para- alleged to have committed a prohibited graph (b) of this section may be en- personnel practice under 5 U.S.C. forced as provided under subpart F of 2302(b) may request permission to in- this part. tervene. A judge’s denial of a motion [54 FR 53504, Dec. 29, 1989, as amended at 62 for permissive intervention may be ap- FR 48935, Sept. 18, 1997; 77 FR 62365, Oct. 12, pealed to the Board under § 1201.91 of 2012] this part.

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(d) Role of intervenors. Intervenors pellant have terminated because of the have the same rights and duties as par- appellant’s death or other disability. ties, with the following two exceptions: (b) The representative or proper (1) Intervenors do not have an inde- party must file a motion for substi- pendent right to a hearing; and tution within 90 days after the death or (2) Permissive intervenors may par- other disabling event, except for good ticipate only on the issues affecting cause shown. them. The judge is responsible for de- (c) In the absence of a timely substi- termining the issues on which permis- tution of a party, the processing of the sive intervenors may participate. appeal may continue if the interests of (e) Amicus curiae. (1) An amicus cu- the proper party will not be prejudiced. riae is a person or organization who, although not a party to an appeal, § 1201.36 Consolidating and joining ap- gives advice or suggestions by filing a peals. brief with the judge or the Board re- (a) Explanation. (1) Consolidation oc- garding an appeal. Any person or orga- curs when the appeals of two or more nization, including those who do not parties are united for consideration be- qualify as intervenors, may request cause they contain identical or similar permission to file an amicus brief. The issues. For example, individual appeals Board may solicit amicus briefs on its rising from a single reduction in force own motion. might be consolidated. (2) A request to file an amicus curiae (2) Joinder occurs when one person brief must include a statement of the has filed two or more appeals and they person’s or organization’s interest in are united for consideration. For exam- the appeal and how the brief will be ple, a judge might join an appeal chal- relevant to the issues involved. lenging a 30-day suspension with a (3) The request may be granted, in pending appeal challenging a subse- the discretion of the judge or the quent removal if the same appellant Board, if the person or organization filed both appeals. has a legitimate interest in the pro- (b) Action by judge. A judge may con- ceedings, and such participation will solidate or join cases on his or her own not unduly delay the outcome and may motion or on the motion of a party if contribute materially to the proper doing so would: disposition thereof. (4) The amicus curiae shall submit its (1) Expedite processing of the cases; brief within the time limits set by the and judge or the Board and must comply (2) Not adversely affect the interests with any further orders by the judge or of the parties. the Board. (c) Any objection to a motion for (5) An amicus curiae is not a party to consolidation or joinder must be filed the proceeding and may not participate within 10 days of the date of service of in any way in the conduct of the hear- the motion. ing, including the presentation of evi- [54 FR 53504, Dec. 29, 1989, as amended at 77 dence or the examination of witnesses. FR 62365, Oct. 12, 2012] The Board, in its discretion, may invite an amicus curiae to participate in oral § 1201.37 Witness fees. argument in proceedings in which oral (a) Federal employees. Employees of a argument is scheduled. Federal agency or corporation testi- [54 FR 53504, Dec. 29, 1989, as amended at 77 fying in any Board proceeding or mak- FR 62365, Oct. 12, 2012] ing a statement for the record will be in official duty status and will not re- § 1201.35 Substituting parties. ceive witness fees. (a) If an appellant dies or is other- (b) Other witnesses. Other witnesses wise unable to pursue the appeal, the (whether appearing voluntarily or processing of the appeal will only be under subpoena) shall be paid the same completed upon substitution of a prop- fee and mileage allowances which are er party. Substitution will not be per- paid subpoenaed witnesses in the mitted where the interests of the ap- courts of the United States.

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(c) Payment of witness fees and travel the judge determines that a hearing is costs. The party requesting the pres- necessary: ence of a witness must pay that wit- (i) To resolve an important issue of ness’ fees. Those fees must be paid or credibility; offered to the witness at the time the (ii) To ensure that the record on sig- subpoena is served, or, if the witness nificant issues is fully developed; or appears voluntarily, at the time of ap- (iii) To otherwise ensure a fair and pearance. A Federal agency or corpora- just adjudication of the case; tion is not required to pay or offer wit- (6) Convene a hearing as appropriate, ness fees in advance. regulate the course of the hearing, (d) A witness who is denied the wit- maintain decorum, and exclude any ness fees and travel costs required by disruptive persons from the hearing; paragraphs (b) and (c) of this section (7) Exclude any person from all or may file a written request that the any part of the proceeding before him judge order the party who requested or her as provided under § 1201.31(d) of the presence of the witness to provide this part; such fees and travel costs. The judge (8) Rule on all motions, witness and will act on such a request promptly exhibit lists, and proposed findings; and, where warranted, will order the (9) Require the parties to file memo- party to comply with the requirements randa of law and to present oral argu- of paragraphs (b) and (c) of this sec- ment with respect to any question of tion. law; (e) An order obtained under para- (10) Order the production of evidence graph (d) of this section may be en- and the appearance of witnesses whose forced as provided under subpart F of testimony would be relevant, material, this part. and nonrepetitious; (11) Impose sanctions as provided [54 FR 53504, Dec. 29, 1989, as amended at 59 under § 1201.43 of this part; FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, (12) Hold prehearing conferences for 1994; 62 FR 17045, Apr. 9, 1997; 73 FR 6833, Feb. 6, 2008] the settlement and simplification of issues; JUDGES (13) Require that all persons who can be identified from the record as being § 1201.41 Judges. clearly and directly affected by a pending retirement-related case be notified (a) Exercise of authority. Judges may of the appeal and of their right to re- exercise authority as provided in para- quest intervention so that their inter- graphs (b) and (c) of this section on ests can be considered in the adjudica- their own motion or on the motion of a tion; party, as appropriate. (14) Issue any order that may be nec- (b) Authority. Judges will conduct fair essary to protect a witness or other in- and impartial hearings and will issue dividual from harassment and provide timely and clear decisions based on for enforcement of such order in ac- statutes and legal precedents. They cordance with subpart F; will have all powers necessary to that (15) Issue initial decisions; and end unless those powers are otherwise (16) Determine, in decisions in which limited by law. Judges’ powers include, the appellant is the prevailing party, but are not limited to, the authority whether the granting of interim relief to: is appropriate. (1) Administer oaths and affirma- (c) Settlement—(1) Settlement discus- tions; sion. The judge may initiate attempts (2) Issue subpoenas under § 1201.81 of to settle the appeal informally at any this part; time. The parties may agree to waive (3) Rule on offers of proof and receive the prohibitions against ex parte com- relevant evidence; munications during settlement discus- (4) Rule on discovery motions under sions, and they may agree to any lim- § 1201.73 of this part; its on the waiver. (5) After notice to the parties, order (2) Agreement. If the parties agree to a hearing on his or her own initiative if settle their dispute, the settlement

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agreement is the final and binding res- (1) Draw an inference in favor of the olution of the appeal, and the judge requesting party with regard to the in- will dismiss the appeal with prejudice. formation sought; (i) If the parties offer the agreement (2) Prohibit the party failing to com- for inclusion in the record, and if the ply with the order from introducing judge approves the agreement, it will evidence concerning the information be made a part of the record, and the sought, or from otherwise relying upon Board will retain jurisdiction to ensure testimony related to that information; compliance with the agreement. (3) Permit the requesting party to in- (ii) If the agreement is not entered troduce secondary evidence concerning into the record, the Board will not re- the information sought; and tain jurisdiction to ensure compliance. (4) Eliminate from consideration any appropriate part of the pleadings or [54 FR 53504, Dec. 29, 1989, as amended at 62 other submissions of the party that FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, fails to comply with the order. 1998; 77 FR 62366, Oct. 12, 2012] (b) Failure to prosecute or defend appeal. If a party fails to prosecute or de- § 1201.42 Disqualifying a judge. fend an appeal, the judge may dismiss (a) If a judge considers himself or the appeal with prejudice or rule in herself disqualified, he or she will with- favor of the appellant. draw from the case, state on the record (c) Failure to make timely filing. The the reasons for doing so, and another judge may refuse to consider any mo- judge will be promptly assigned. tion or other pleading that is not filed (b) A party may file a motion asking in a timely fashion in compliance with the judge to withdraw on the basis of this subpart. personal bias or other disqualification. (d) Exclusion of a representative or This motion must be filed as soon as other person. A judge may exclude or the party has reason to believe there is limit the participation of a representa- a basis for disqualification. The rea- tive or other person in the case for con- sons for the request must be set out in tumacious conduct or conduct preju- an affidavit or sworn statement under dicial to the administration of justice. 28 U.S.C. 1746. (See appendix IV.) When the judge excludes a party’s rep- (c) If the judge denies the motion, the resentative, the judge will afford the party requesting withdrawal may re- party a reasonable time to obtain an- quest certification of the issue to the other representative before proceeding Board as an interlocutory appeal under with the case. § 1201.91 of this part. Failure to request (e) Cancellation, suspension, or termi- certification is considered a waiver of nation of hearing. A judge may cancel a the request for withdrawal. scheduled hearing, or suspend or termi- nate a hearing in progress, for con- [54 FR 53504, Dec. 29, 1989, as amended at 77 tumacious conduct or conduct preju- FR 62366, Oct. 12, 2012] dicial to the administration of justice on the part of the appellant or the ap- § 1201.43 Sanctions. pellant’s representative. If the judge The judge may impose sanctions suspends a hearing, the parties must be upon the parties as necessary to serve given notice as to when the hearing the ends of justice. This authority cov- will resume. If the judge cancels or ter- ers, but is not limited to, the cir- minates a hearing, the judge must set cumstances set forth in paragraphs (a), a reasonable time during which the (b), (c), (d), and (e) of this section. Be- record will be kept open for receipt of fore imposing a sanction, the judge written submissions. shall provide appropriate prior warn- [54 FR 53504, Dec. 29, 1989, as amended at 77 ing, allow a response to the actual or FR 62366, Oct. 12, 2012] proposed sanction when feasible, and document the reasons for any resulting HEARINGS sanction in the record. (a) Failure to comply with an order. § 1201.51 Scheduling the hearing. When a party fails to comply with an (a) The hearing will be scheduled not order, the judge may: earlier than 15 days after the date of

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the hearing notice unless the parties and/or powered on in the hearing room agree to an earlier date. The agency, without the consent of the judge. upon request of the judge, must provide [77 FR 62366, Oct. 12, 2012] appropriate hearing space. (b) The judge may change the time, § 1201.53 Record of proceedings. date, or place of the hearing, or sus- (a) Recordings. A recording of the pend, adjourn, or continue the hearing. hearing is generally prepared by a The change will not require the 15-day court reporter, under the judge’s guid- notice provided in paragraph (a) of this ance. Such a recording is included with section. the Board’s copy of the appeal file and (c) Either party may file a motion for serves as the official hearing record. postponement of the hearing. The mo- Judges may prepare recordings in some tion must be made in writing and must hearings, such as those conducted tele- either be accompanied by an affidavit phonically. or sworn statement under 28 U.S.C. (b) Transcripts. A ‘‘transcript’’ refers 1746. (See appendix IV.) The affidavit or not only to printed copies of the hear- sworn statement must describe the rea- ing testimony, but also to electronic sons for the request. The judge will versions of such documents. Along with grant the request for postponement recordings, a transcript prepared by only upon a showing of good cause. the court reporter is accepted by the (d) The Board has established certain Board as the official hearing record. approved hearing locations, which are Any party may request that the court listed on the Board’s public Web site reporter prepare a full or partial tran- (www.mspb.gov). The judge will advise script, at the requesting party’s ex- parties of these hearing sites as appro- pense. Judges do not prepare tran- priate. Parties, for good cause, may file scripts. motions requesting a different hearing (c) Copies. Copies of recordings or ex- location. Rulings on those motions will isting transcripts will be provided upon be based on a showing that a different request to parties free of charge. Such requests should be made in writing to location will be more advantageous to the adjudicating regional or field of- all parties and to the Board. fice, or to the Clerk of the Board, as [54 FR 53504, Dec. 29, 1989, as amended at 77 appropriate. Nonparties may request a FR 62366, Oct. 12, 2012] copy of a hearing recording or existing transcript under the Freedom of Infor- § 1201.52 Public hearings. mation Act (FOIA) and Part 1204 of the (a) Closing the hearing. Hearings are Board’s regulations. A nonparty may generally open to the public; however, request a copy by writing to the appro- the judge may order a hearing or any priate Regional Director, the Chief Ad- part of a hearing closed when doing so ministrative Judge of the appropriate MSPB Field Office, or to the Clerk of would be in the best interests of a the Board at MSPB headquarters in party, a witness, the public, or any Washington, DC, as appropriate. Non- other person affected by the pro- parties may also make FOIA requests ceeding. Any order closing the hearing online at https://foia.mspb.gov. will set out the reasons for the judge’s (d) Corrections to transcript. Any dis- decision. Any objections to the order crepancy between the transcript and will be made a part of the record. the recording shall be resolved by the (b) Electronic devices. Absent express judge or the Clerk of the Board, as ap- approval from the judge, no two-way propriate. Corrections to the official communications devices may be oper- transcript may be made on motion by a ated and/or powered on in the hearing party or on the judge’s own motion or room; all cell phones, text devices, and by the Clerk of the Board, as appro- all other two-way communications de- priate. Motions for corrections must be vices shall be powered off in the hear- filed within 10 days after the receipt of ing room. Further, no cameras, record- a transcript. Corrections of the official ing devices, and/or transmitting de- transcript will be made only when sub- vices may be operated, operational, stantive errors are found by the judge

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or by the Clerk of the Board, as appro- mentary evidence. An agency, other priate. than the Office of Special Counsel, may (e) Official record. Hearing exhibits not request such an order with respect and pleadings that have been accepted to an investigation by the Special into the record, the official hearing Counsel during the Special Counsel’s record, if a hearing is held, and all or- investigation. An order issued under ders and decisions of the judge and the this paragraph may be enforced in the Board, make up the official record of same manner as provided under sub- the case. Other than the Board’s deci- part F for Board final decisions and or- sions, the official record is not avail- ders. able for public inspection and copying. [54 FR 53504, Dec. 29, 1989, as amended at 62 The official record is, however, subject FR 17045, Apr. 9, 1997] to requests under both the Freedom of Information Act (5 U.S.C. 552) and the § 1201.56 Burden and degree of proof. Privacy Act (5 U.S.C. 552a) pursuant to (a) Applicability. This section does not the procedures contained in 5 CFR apply to the following types of appeals parts 1204 and 1205. which are covered by § 1201.57: [77 FR 62366, Oct. 12, 2012] (1) An individual right of action appeal under the Whistleblower Protec- § 1201.55 Motions. tion Act, 5 U.S.C. 1221; (a) Form. All motions, except those (2) An appeal under the Veterans Em- made during a prehearing conference ployment Opportunities Act, 5 U.S.C. or a hearing, must be in writing. All 3330a(d); motions must include a statement of (3) An appeal under the Uniformed the reasons supporting them. Written Services Employment and Reemploy- motions must be filed with the judge or ment Rights Act, 38 U.S.C. 4324, in the Board, as appropriate, and must be which the appellant alleges discrimina- served upon all other parties in accord- tion or retaliation in violation of 38 ance with § 1201.26(b)(2) of this part. A U.S.C. 4311; and party filing a motion for extension of (4) An appeal under 5 CFR 353.304, in time, a motion for postponement of a which the appellant alleges a failure to hearing, or any other procedural mo- restore, improper restoration of, or tion must first contact the other party failure to return following a leave of to determine whether there is any ob- absence. jection to the motion, and must state (b) Burden and degree of proof—(1) in the motion whether the other party Agency. Under 5 U.S.C. 7701(c)(1), and has an objection. subject to the exceptions stated in (b) Objection. Unless the judge pro- paragraph (c) of this section, the agen- vides otherwise, any objection to a cy bears the burden of proof and its ac- written motion must be filed within 10 tion must be sustained only if: days from the date of service of the (i) It is brought under 5 U.S.C. 4303 or motion. Judges, in their discretion, 5 U.S.C. 5335 and is supported by sub- may grant or deny motions for exten- stantial evidence (as defined in sions of time to file pleadings without § 1201.4(p)); or providing any opportunity to respond (ii) It is brought under any other pro- to the motions. vision of law or regulation and is sup- (c) Motions for extension of time. Mo- ported by a preponderance of the evi- tions for extension of time will be dence (as defined in § 1201.4(q)). granted only on a showing of good (2) Appellant. (i) The appellant has cause. the burden of proof, by a preponderance (d) Motions for protective orders. A mo- of the evidence (as defined in tion for an order under 5 U.S.C. § 1201.4(q)), with respect to: 1204(e)(1)(B) to protect a witness or (A) Issues of jurisdiction, except for other individual from harassment must cases in which the appellant asserts a be filed as early in the proceeding as violation of his right to reemployment practicable. The party seeking a pro- following military duty under 38 U.S.C. tective order must include a concise 4312–4314; statement of reasons justifying the mo- (B) The timeliness of the appeal; and tion, together with any relevant docu- (C) Affirmative defenses.

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(ii) In appeals from reconsideration failure to return following a leave of decisions of the Office of Personnel absence (denial of restoration appeal). Management (OPM) involving retire- (b) Matters that must be supported by ment benefits, if the appellant filed the nonfrivolous allegations. Except for application, the appellant has the bur- proving exhaustion of a required statu- den of proving, by a preponderance of tory complaint process and standing to the evidence (as defined in § 1201.4(q)), appeal (paragraphs (c)(1) and (3) of this entitlement to the benefits. Where section), in order to establish jurisdic- OPM proves by preponderant evidence tion, an appellant who initiates an ap- an overpayment of benefits, an appel- peal covered by this section must make lant may prove, by substantial evi- nonfrivolous allegations (as defined in dence (as defined in § 1201.4(p)), eligi- § 1201.4(s)) with regard to the sub- bility for waiver or adjustment. stantive jurisdictional elements appli- (c) Affirmative defenses of the appel- cable to the particular type of appeal lant. Under 5 U.S.C. 7701(c)(2), the he or she has initiated. Board is required to reverse the action (c) Matters that must be proven by a of the agency, even where the agency preponderance of the evidence. An appel- has met the evidentiary standard stat- lant who initiates an appeal covered by ed in paragraph (b) of this section, if this section has the burden of proof, by the appellant: a preponderance of the evidence (as de- (1) Shows harmful error in the appli- fined in § 1201.4(q)), on the following cation of the agency’s procedures in ar- matters: riving at its decision (as defined in (1) When applicable, exhaustion of a § 1201.4(r)); statutory complaint process that is (2) Shows that the decision was based preliminary to an appeal to the Board; on any prohibited personnel practice described in 5 U.S.C. 2302(b); or (2) Timeliness of an appeal under 5 (3) Shows that the decision was not CFR 1201.22; in accordance with law. (3) Standing to appeal, when disputed (d) Administrative judge. The adminis- by the agency or questioned by the trative judge will inform the parties of Board. (An appellant has ‘‘standing’’ the proof required as to the issues of when he or she falls within the class of jurisdiction, the timeliness of the ap- persons who may file an appeal under peal, and affirmative defenses. the law applicable to the appeal.); and (4) The merits of an appeal, if the ap- [80 FR 4496, Jan. 28, 2015] peal is within the Board’s jurisdiction § 1201.57 Establishing jurisdiction in and was timely filed. appeals not covered by § 1201.56; (d) Scope of the appeal. Appeals cov- burden and degree of proof; scope ered by this section are limited in of review. scope. With the exception of denial of (a) Applicability. This section applies restoration appeals, the Board will not to the following types of appeals: consider matters described at 5 U.S.C. (1) An individual right of action 7701(c)(2) in an appeal covered by this (IRA) appeal under the Whistleblower section. Protection Act, 5 U.S.C. 1221; (e) Notice of jurisdictional, timeliness, (2) A request for corrective action and merits elements. The administrative under the Veterans Employment Op- judge will provide notice to the parties portunities Act (VEOA), 5 U.S.C. of the specific jurisdictional, timeli- 3330a(d); ness, and merits elements that apply in (3) A request for corrective action a particular appeal. under the Uniformed Services Employ- (f) Additional information. For addi- ment and Reemployment Rights Act tional information on IRA appeals, the (USERRA), 38 U.S.C. 4324, in which the reader should consult 5 CFR part 1209. appellant alleges discrimination or re- For additional information on VEOA taliation in violation of 38 U.S.C. 4311; appeals, the reader should consult 5 and CFR part 1208, subparts A & C. For ad- (4) An appeal under 5 CFR 353.304, in ditional information on USERRA ap- which an appellant alleges a failure to peals, the reader should consult 5 CFR restore, improper restoration of, or part 1208, subparts A and B.

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(g) For additional information on de- EVIDENCE nial of restoration appeals, the reader should consult 5 CFR part 353, subparts § 1201.61 Exclusion of evidence and A and C. testimony. Any evidence and testimony that is [80 FR 4496, Jan. 28, 2015] offered in the hearing and excluded by § 1201.58 Order of hearing. the judge will be described, and that description will be made a part of the (a) In cases in which the agency has record. taken an action against an employee, the agency will present its case first. § 1201.63 Stipulations. (b) The appellant will proceed first at The parties may stipulate to any hearings convened on the issues of: matter of fact. The stipulation will sat- (1) Jurisdiction; isfy a party’s burden of proving the (2) Timeliness; or fact alleged. (3) Office of Personnel Management disallowance of retirement benefits, § 1201.64 Official notice. when the appellant applied for those Official notice is the Board’s or benefits. judge’s recognition of certain facts (c) The judge may vary the normal without requiring evidence to be intro- order of presenting evidence. duced establishing those facts. The [54 FR 53504, Dec. 29, 1989. Redesignated at 80 judge, on his or her own motion or on FR 4496, Jan. 28, 2015] the motion of a party, may take official notice of matters of common § 1201.59 Closing the record. knowledge or matters that can be verified. The parties may be given an (a) When there is a hearing, the opportunity to object to the taking of record ordinarily will close at the con- official notice. The taking of official clusion of the hearing. When the judge notice of any fact satisfies a party’s allows the parties to submit argument, burden of proving that fact. briefs, or documents previously identified for introduction into evidence, DISCOVERY however, the record will remain open for as much time as the judge grants § 1201.71 Purpose of discovery. for that purpose. Proceedings before the Board will be (b) If the appellant waives the right conducted as expeditiously as possible to a hearing, the record will close on with due regard to the rights of the the date the judge sets as the final date parties. Discovery is designed to enable for the receipt or filing of submissions a party to obtain relevant information of the parties. needed to prepare the party’s case. (c) Once the record closes, additional These regulations are intended to pro- evidence or argument will ordinarily vide a simple method of discovery. not be accepted unless: They will be interpreted and applied so (1) The party submitting it shows as to avoid delay and to facilitate adju- that the evidence or argument was not dication of the case. Parties are ex- readily available before the record pected to start and complete discovery closed; or with a minimum of Board intervention. (2) It is in rebuttal to new evidence Discovery requests and responses or argument submitted by the other thereto are not to be filed in the first party just before the record closed. instance with the Board. They are only (d) The judge will include in the filed with the Board in connection with record any supplemental citations re- a motion to compel discovery under ceived from the parties or approved 1201.73(c) of this part, with a motion to corrections of the transcript, if one has subpoena discovery under 1201.73(d) of been prepared. this part, or as substantive evidence to be considered in the appeal. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012. Redesignated at 80 FR [54 FR 53504, Dec. 29, 1989, as amended at 77 4496, Jan. 28, 2015] FR 62367, Oct. 12, 2012]

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§ 1201.72 Explanation and scope of dis- (3) The burden or expense of the pro- covery. posed discovery outweighs its likely benefit. (a) Explanation. Discovery is the process, apart from the hearing, by [68 FR 54651, Sept. 18, 2003, as amended at 73 which a party may obtain relevant in- FR 18150, Apr. 3, 2008; 73 FR 21415, Apr. 21, formation, including the identification 2008] of potential witnesses, from another § 1201.73 Discovery procedures. person or a party, that the other per- (a) Initiating discovery. A party seek- son or party has not otherwise pro- ing discovery must start the process by vided. Relevant information includes serving a request for discovery on the information that appears reasonably representative of the party or calculated to lead to the discovery of nonparty, or, if there is no representa- admissible evidence. This information tive, on the party or nonparty them- is obtained to assist the parties in pre- selves. The request for discovery must paring and presenting their cases. The state the time limit for responding, as Federal Rules of Civil Procedure may prescribed in 1201.73(d) of this part, and be used as a general guide for discovery must specify the time and place of the practices in proceedings before the taking of the deposition, if applicable. Board. Those rules, however, are in- When a party directs a request for dis- structive rather than controlling. covery to the official or employee of a (b) Scope. Discovery covers any non- Federal agency that is a party, the privileged matter that is relevant to agency must make the officer or em- the issues involved in the appeal, in- ployee available on official time to re- cluding the existence, description, na- spond to the request and must assist ture, custody, condition, and location the officer or employee as necessary in providing relevant information that is of documents or other tangible things, available to the agency. and the identity and location of per- (b) Responses to discovery requests. A sons with knowledge of relevant facts. party or nonparty must answer a dis- Discovery requests that are directed to covery request within the time pro- nonparties and nonparty Federal agen- vided under paragraph (d)(2) of this sec- cies and employees are limited to in- tion, either by furnishing to the re- formation that appears directly mate- questing party the information re- rial to the issues involved in the ap- quested or agreeing to make deponents peal. available to testify within a reasonable (c) Methods. Parties may use one or time, or by stating an objection to the more of the methods provided under particular request and the reasons for the Federal Rules of Civil Procedure. the objection. Parties and nonparties These methods include written inter- may respond to discovery requests by rogatories to parties, depositions, re- electronic mail if authorized by the requests for production of documents or questing party. things for inspection or copying, and (c) Motions to compel or issue a sub- requests for admission. poena. (1) If a party fails or refuses to (d) Limitations. The judge may limit respond in full to a discovery request, the frequency or extent of use of the the requesting party may file a motion to compel discovery. If a nonparty fails discovery methods permitted by these or refuses to respond in full to a dis- regulations. Such limitations may be covery request, the requesting party imposed if the judge finds that: may file a motion for the issuance of a (1) The discovery sought is cumu- subpoena directed to the individual or lative or duplicative, or is obtainable entity from which the discovery is from some other source that is more sought under the procedures described convenient, less burdensome, or less in 1201.81 of this part. The requesting expensive; party must serve a copy of the motion (2) The party seeking discovery has on the other party or nonparty. Before had sufficient opportunity by discovery filing any motion to compel or issue a in the action to obtain the information subpoena, the moving party shall dis- sought; or cuss the anticipated motion with the

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opposing party or nonparty, and all a motion to compel or subpoena dis- those involved shall make a good faith covery must be filed with the judge effort to resolve the discovery dispute within 10 days of the date of service of and narrow the areas of disagreement. the motion. The motion shall include: (4) Discovery must be completed (i) A copy of the original request and within the time period designated by a statement showing that the informa- the judge or, if no such period is des- tion sought is discoverable under sec- ignated, no later than the prehearing tion 1201.72; or close of record conference. (ii) A copy of the response to the re- (e) Limits on the number of discovery quest (including the objections to dis- requests. (1) Absent prior approval by covery) or, where appropriate, a state- the judge, interrogatories served by ment that no response has been re- parties upon another party or a ceived, along with an affidavit or sworn nonparty may not exceed 25 in number, statement under 28 U.S.C. 1746 sup- including all discrete subparts. porting the statement (See appendix IV (2) Absent prior approval by the to part 1201); and judge or agreement by the parties, each (iii) A statement that the moving party may not take more than 10 depo- party has discussed or attempted to sitions. discuss the anticipated motion with (3) Requests to exceed the limitations the nonmoving party or nonparty and set forth in paragraphs (e)(1) and (e)(2) made a good faith effort to resolve the of this section may be granted at the discovery dispute and narrow the areas discretion of the judge. In considering of disagreement. such requests, the judge shall consider (2) The party or nonparty from whom the factors identified in § 1201.72(d) of discovery was sought may respond to this part. the motion to compel or the motion to [77 FR 62367, Oct. 12, 2012] issue a subpoena within the time limits stated in paragraph (d)(3) of this sec- § 1201.74 Orders for discovery. tion. (a) Motion for an order compelling dis- (d) Time limits. (1) Unless otherwise covery. Motions for orders compelling directed by the judge, parties must discovery and motions for the appear- serve their initial discovery requests ance of nonparties must be filed with within 30 days after the date on which the judge in accordance with the judge issues an order to the re- § 1201.73(c)(1) and (d)(3). An administra- spondent agency to produce the agency tive judge may deny a motion to com- file and response. pel discovery if a party fails to comply (2) A party or nonparty must serve a with the requirements of 5 CFR response to a discovery request 1201.73(c)(1) and (d)(3). promptly, but not later than 20 days (b) Content of order. Any order issued after the date of service of the request will include, where appropriate: or order of the judge. Any discovery re- (1) A provision that the person to be quests following the initial request deposed must be notified of the time must be served within 10 days of the and place of the deposition; date of service of the prior response, (2) Any conditions or limits con- unless the parties are otherwise di- cerning the conduct or scope of the rected by the judge. Deposition wit- proceedings or the subject matter that nesses must give their testimony at may be necessary to prevent undue the time and place stated in the re- delay or to protect a party or other in- quest for deposition or in the subpoena, dividual or entity from undue expense, unless the parties agree on another embarrassment, or oppression; time or place. (3) Limits on the time for conducting (3) Any motion for an order to com- depositions, answering written inter- pel or issue a subpoena must be filed rogatories, or producing documentary with the judge within 10 days of the evidence; and date of service of objections or, if no (4) Other restrictions upon the dis- response is received, within 10 days covery process that the judge sets. after the time limit for response has (c) Noncompliance. The judge may im- expired. Any pleading in opposition to pose sanctions under § 1201.43 of this

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part for failure to comply with an § 1201.82 Motions to quash subpoenas. order compelling discovery. Any person to whom a subpoena is di- [54 FR 53504, Dec. 29, 1989, as amended at 73 rected, or any party, may file a motion FR 18151, Apr. 3, 2008; 78 FR 23458, Apr. 19, to quash or limit the subpoena. The 2013] motion must be filed with the judge, and it must include the reasons why § 1201.75 Taking depositions. compliance with the subpoena should Depositions may be taken by any not be required or the reasons why the method agreed upon by the parties. subpoena’s scope should be limited. The person providing information is subject to penalties for intentional § 1201.83 Serving subpoenas. false statements. (a) Any person who is at least 18 years of age and who is not a party to SUBPOENAS the appeal may serve a subpoena. The § 1201.81 Requests for subpoenas. means prescribed by applicable state law are sufficient. The party who re- (a) Request. Parties who wish to obtain subpoenas that would require the quested the subpoena, and to whom the attendance and testimony of witnesses, subpoena has been issued, is respon- or subpoenas that would require the sible for serving the subpoena. production of documents or other evi- (b) A subpoena directed to an indi- dence under 5 U.S.C. 1204(b)(2)(A), vidual outside the territorial jurisdic- should file their motions for those sub- tion of any court of the United States poenas with the judge. The Board has may be served in the manner described authority under 5 U.S.C. 1204(b)(2)(A) by the Federal Rules of Civil Procedure to issue a subpoena requiring the at- for service of a subpoena in a foreign tendance and testimony of any indi- country. vidual regardless of location and for § 1201.84 Proof of service. the production of documentary or other evidence from any place in the The person who has served the sub- United States, any territory or posses- poena must certify that he or she did sion of the United States, the Common- so: wealth of Puerto Rico or the District of (a) By delivering it to the witness in Columbia. Subpoenas are not ordi- person, narily required to obtain the attend- (b) By registered or certified mail, or ance of Federal employees as wit- (c) By delivering the subpoena to a nesses. responsible person (named in the docu- (b) Form. Parties requesting sub- ment certifying the delivery) at the poenas must file their requests, in residence or place of business (as ap- writing, with the judge. Each request propriate) of the person for whom the must identify specifically the books, subpoena was intended. papers, or testimony desired. The document in which the party (c) Relevance. The request must be makes this certification also must in- supported by a showing that the evi- clude a statement that the prescribed dence sought is directly material to fees have been paid or offered. the issues involved in the appeal. (d) Rulings. Any judge who does not § 1201.85 Enforcing subpoenas. have the authority to issue subpoenas (a) If a person who has been served will refer the request to an official with a Board subpoena fails or refuses with authority to rule on the request, to comply with its terms, the party with a recommendation for decision. seeking compliance may file a written The official to whom the request is re- motion for enforcement with the judge ferred will rule on the request prompt- or make an oral motion for enforce- ly. Judges who have the authority to ment while on the record at a hearing. rule on these requests themselves will That party must present the document do so directly. certifying that the subpoena was [54 FR 53504, Dec. 29, 1989, as amended at 70 served and, except where the witness FR 30608, May 27, 2005; 77 FR 62367, Oct. 12, was required to appear before the 2012] judge, must submit an affidavit or

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sworn statement under 28 U.S.C. 1746 § 1201.93 Procedures. (see appendix IV) describing the failure (a) Motion for certification. A party or refusal to obey the subpoena. The seeking the certification of an inter- Board, in accordance with 5 U.S.C. locutory appeal must file a motion for 1204(c), may then ask the appropriate certification within 10 days of the date United States district court to enforce of the ruling to be appealed. The mo- the subpoena. If the person who has tion must be filed with the judge, and failed or refused to comply with a must state why certification is appro- Board subpoena is located in a foreign priate and what the Board should do country, the U.S. District Court for the and why. The opposing party may file District of Columbia will have jurisdic- objections within 10 days of the date of tion to enforce compliance, to the ex- service of the motion, or within any tent that a U.S. court can assert juris- other time period that the judge may diction over an individual in the for- designate. eign country. (b) Certification and review. The judge (b) Upon application by the Special will grant or deny a motion for certifi- Counsel, the Board may seek court en- cation within five days after receiving forcement of a subpoena issued by the all pleadings or, if no response is filed, Special Counsel in the same manner in within 10 days after receiving the mo- which it seeks enforcement of Board tion. If the judge grants the motion for subpoenas, in accordance with 5 U.S.C. certification, he or she will refer the 1212(b)(3). record to the Board. If the judge denies the motion, the party that sought cer- INTERLOCUTORY APPEALS tification may raise the matter at issue in a petition for review filed after § 1201.91 Explanation. the initial decision is issued, in accordance with §§ 1201.113 and 1201.114 of this An interlocutory appeal is an appeal part. to the Board of a ruling made by a (c) Stay of appeal. The judge has the judge during a proceeding. The judge authority to proceed with or to stay may permit the appeal if he or she de- the processing of the appeal while an termines that the issue presented in it interlocutory appeal is pending with is of such importance to the proceeding the Board. The passage of time during that it requires the Board’s immediate any stay granted under this section is attention. Either party may make a not deemed, or accounted for, as a case motion for certification of an inter- suspension under § 1201.28 of this part. locutory appeal. In addition, the judge, If the judge does not stay the appeal, on his or her own motion, may certify the Board may do so while an inter- an interlocutory appeal to the Board. If locutory appeal is pending with it. the appeal is certified, the Board will [54 FR 53504, Dec. 29, 1989, as amended at 77 decide the issue and the judge will act FR 62367, Oct. 12, 2012] in accordance with the Board’s decision. EX PARTE COMMUNICATIONS

§ 1201.92 Criteria for certifying inter- § 1201.101 Explanation and definitions. locutory appeals. (a) Explanation. An ex parte commu- The judge will certify a ruling for re- nication is an oral or written commu- view only if the record shows that: nication between a decision-making of- (a) The ruling involves an important ficial of the Board and an interested question of law or policy about which party to a proceeding, when that com- there is substantial ground for dif- munication is made without providing ference of opinion; and the other parties to the appeal with a (b) An immediate ruling will materi- chance to participate. Not all ex parte ally advance the completion of the pro- communications are prohibited. Those that involve the merits of the case, or ceeding, or the denial of an immediate those that violate rules requiring sub- ruling will cause undue harm to a missions to be in writing, are prohib- party or the public. ited. Accordingly, interested parties

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may ask about such matters as the sta- (1) Parties. The offending party may tus of a case, when it will be heard, and be required to show why, in the inter- methods of submitting evidence to the est of justice, the claim or motion Board. Parties may not ask about mat- should not be dismissed, denied, or oth- ters such as what defense they should erwise adversely affected. use or whether their evidence is ade- (2) Other persons. The Board may in- quate, and they may not make a sub- voke appropriate sanctions against mission orally if that submission is re- other offending parties. quired to be made in writing. [54 FR 53504, Dec. 29, 1989, as amended at 70 (b) Definitions for purposes of this sec- FR 30609, May 27, 2005] tion—(1) Interested party includes: (i) Any party or representative of a FINAL DECISIONS party involved in a proceeding before the Board; and § 1201.111 Initial decision by judge. (ii) Any other person who might be (a) The judge will prepare an initial affected by the outcome of a pro- decision after the record closes and ceeding before the Board. will serve that decision on all parties (2) Decision-making official means any to the appeal, including named parties, judge, officer, or other employee of the permissive intervenors, and interve- Board designated to hear and decide nors of right. The Board satisfies its cases except when such judge, officer, legal obligation under 5 U.S.C. or other employee of the Board is serv- 7701(b)(1) by making electronic copies ing as a mediator or settlement judge of initial decisions available to the Of- who is not the adjudicating judge. fice of Personnel Management. (b) Each initial decision will contain: [54 FR 53504, Dec. 29, 1989, as amended at 77 (1) Findings of fact and conclusions FR 62367, Oct. 12, 2012] of law upon all the material issues of fact and law presented on the record; § 1201.102 Prohibition on ex parte communications. (2) The reasons or bases for those findings and conclusions; Except as otherwise provided in (3) An order making final disposition § 1201.41(c)(1) of this part, ex parte com- of the case, including appropriate re- munications that concern the merits of lief; any matter before the Board for adju- (4) A statement, if the appellant is dication, or that otherwise violate the prevailing party, as to whether in- rules requiring written submissions, terim relief is provided effective upon are prohibited from the time the per- the date of the decision, pending the sons involved know that the Board outcome of any petition for review may consider the matter until the time filed by another party under subpart C the Board has issued a final decision on of this part; the matter. (5) The date upon which the decision will become final (a date that, for pur- § 1201.103 Placing communications in poses of this section, is 35 days after the record; sanctions. issuance); and (a) Any communication made in vio- (6) A statement of any further proc- lation of § 1201.102 of this part will be ess available, including, as appropriate, made a part of the record. If the com- a petition for review under § 1201.114 of munication was oral, a memorandum this part, a petition for enforcement stating the substance of the discussion under § 1201.182, a motion for attorney will be placed in the record. fees under § 1201.203, a motion to ini- (b) If there has been a violation of tiate an addendum proceeding for con- § 1201.102 of this part, the judge or the sequential damages or compensatory Clerk of the Board, as appropriate, will damages under § 1201.204, and a petition notify the parties in writing that the for judicial review. regulation has been violated, and will (c) Interim relief. (1) Under 5 U.S.C. give the parties 10 days to file a re- 7701(b)(2), if the appellant is the pre- sponse. vailing party, the initial decision will (c) The following sanctions are avail- provide appropriate interim relief to able: the appellant effective upon the date of

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the initial decision and remaining in garding the finality of an initial deci- effect until the date of the final order sion or the time allowed for filing a pe- of the Board on any petition for review, tition for review. unless the judge determines that the granting of interim relief is not appro- [59 FR 22125, Apr. 29, 1994, as amended at 62 priate. The agency may decline to re- FR 17045, Apr. 9, 1997; 70 FR 30609, May 27, 2005; 77 FR 62368, Oct. 12, 2012; 78 FR 23458, turn the appellant to his or her place of Apr. 19, 2013] employment if it determines that the return or presence of the appellant will § 1201.113 Finality of decision. be unduly disruptive to the work envi- ronment. However, pay and benefits The initial decision of the judge will must be provided. become the Board’s final decision 35 (2) An initial decision that orders in- days after issuance. Initial decisions terim relief shall include a section are not precedential. which will provide the appellant spe- (a) Exceptions. The initial decision cific notice that the relief ordered in will not become the Board’s final deci- the decision must be provided by the sion if within the time limit for filing agency effective as of the date of the specified in 1201.114 of this part, any decision if a party files a petition for party files a petition for review or, if review. If the relief ordered in the ini- no petition for review is filed, files a tial decision requires the agency to ef- request that the initial decision be va- fect an appointment, the notice re- cated for the purpose of accepting a quired by this section will so state, will settlement agreement into the record. specify the title and grade of the ap- (b) Petition for review denied. If the pointment, and will specifically advise Board denies all petitions for review, the appellant of his right to receive the initial decision will become final pay and benefits while any petition for when the Board issues its last decision review is pending, even if the agency denying a petition for review. determines that the appellant’s return to or presence in the workplace would (c) Petition for review granted or case be unduly disruptive. reopened. If the Board grants a petition for review or a cross petition for re- [54 FR 53504, Dec. 29, 1989, as amended at 62 view, or reopens or dismisses a case, FR 17045, Apr. 9, 1997; 63 FR 41179, Aug. 3, the decision of the Board is final if it 1998; 64 FR 27900, May 24, 1999; 77 FR 62367, Oct. 12, 2012] disposes of the entire action. (d) Extensions. The Board may extend § 1201.112 Jurisdiction of judge. the time limit for filing a petition for (a) After issuing the initial decision, good cause shown as specified in the judge will retain jurisdiction over a § 1201.114 of this part. case only to the extent necessary to: (e) Exhaustion. Administrative rem- (1) Correct the transcript; when one edies are exhausted when a decision be- is obtained; comes final in accordance with this (2) Rule on a request by the appellant section. for attorney fees, consequential dam- (f) When the Board, by final decision ages, or compensatory damages under or order, finds there is reason to be- subpart H of this part; lieve a current Federal employee may (3) Process any petition for enforce- have committed a prohibited personnel ment filed under subpart F of this part; practice described at 5 U.S.C. 2302(b)(8) (4) Vacate an initial decision to ac- or 2302(b)(9)(A)(i), (B), (C), or (D), the cept into the record a settlement Board will refer the matter to the Spe- agreement that is filed prior to the cial Counsel to investigate and take deadline for filing a petition for review, appropriate action under 5 U.S.C. 1215. even if the settlement agreement is not received until after the date when the [54 FR 53504, Dec. 29, 1989, as amended at 62 initial decision becomes final under FR 59992, Nov. 6, 1997; 77 FR 62368, Oct. 12, § 1201.113 of this part. 2012; 78 FR 39545, July 2, 2013] (b) Nothing is this section affects the time limits prescribed in § 1201.113 re-

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Subpart C—Petitions for Review of the Special Counsel (under 5 U.S.C. Initial Decisions 1212(c)) may file a petition or cross petition for review. The Director of OPM § 1201.114 Petition and cross petition may request review only if he or she for review—content and procedure. believes that the decision is erroneous (a) Pleadings allowed. Pleadings al- and will have a substantial impact on lowed on review include a petition for any civil service law, rule, or regula- review, a cross petition for review, a tion under OPM’s jurisdiction. 5 U.S.C. response to a petition for review, a re- 7701(e)(2). All submissions to the Board sponse to a cross petition for review, must contain the signature of the and a reply to a response to a petition party or of the party’s designated rep- for review. resentative. (1) A petition for review is a pleading (d) Place for filing. All pleadings de- in which a party contends that an ini- scribed in paragraph (a) and all mo- tial decision was incorrectly decided in tions and pleadings associated with whole or in part. them must be filed with the Clerk of (2) A cross petition for review has the the Merit Systems Protection Board, same meaning as a petition for review 1615 M Street NW., Washington, DC but is used to describe a pleading that 20419, by commercial or personal deliv- is filed by a party when another party ery, by facsimile, by mail, or by elec- has already filed a timely petition for tronic filing in accordance with 1201.14 review. of this part. (3) A response to a petition for review (e) Time for filing. Any petition for re- and a cross petition for review may be view must be filed within 35 days after contained in a single pleading. the date of issuance of the initial deci- (4) A reply to a response to a petition sion or, if the petitioner shows that the for review is limited to the factual and initial decision was received more than legal issues raised by another party in 5 days after the date of issuance, with- the response to the petition for review. in 30 days after the date the petitioner It may not raise new allegations of received the initial decision. For pur- error. poses of this section, the date that the (5) No pleading other than the ones petitioner receives the initial decision described in this paragraph will be ac- is determined according to the stand- cepted unless the party files a motion ard set forth at § 1201.22(b)(3) of this with and obtains leave from the Clerk part, pertaining to an appellant’s re- of the Board. The motion must describe ceipt of a final agency decision. If the the nature of and need for the pleading. petitioner is represented, the 30-day (b) Contents of petition or cross petition time period begins to run upon receipt for review. A petition or cross petition of the initial decision by either the for review states a party’s objections representative or the petitioner, which- to the initial decision, including all of ever comes first. A cross petition for the party’s legal and factual argu- review must be filed within 25 days of ments, and must be supported by ref- the date of service of the petition for erences to applicable laws or regula- review. Any response to a petition or tions and by specific references to the cross petition for review must be filed record. Any petition or cross petition within 25 days after the date of service for review that contains new evidence of the petition or cross petition. Any or argument must include an expla- reply to a response to a petition for re- nation of why the evidence or argu- view must be filed within 10 days after ment was not presented before the the date of service of the response to record below closed (see § 1201.58 of this the petition for review. part). A petition or cross petition for (f) Extension of time to file. The Board review should not include documents will grant a motion for extension of that were part of the record below, as time to file a pleading described in the entire administrative record will paragraph (a) only if the party submit- be available to the Board. ting the motion shows good cause. Mo- (c) Who may file. Any party to the tions for extensions must be filed with proceeding, the Director of the Office the Clerk of the Board on or before the of Personnel Management (OPM), or date on which the petition or other

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pleading is due. The Board, in its dis- whichever is less. Computer generated cretion, may grant or deny those mo- and typed pleadings must use no less tions without providing the other par- than 12 point typeface and 1-inch mar- ties the opportunity to comment on gins and must be double spaced and them. A motion for an extension must only use one side of a page. The length be accompanied by an affidavit or limitation is exclusive of any table of sworn statement under 28 U.S.C. 1746. contents, table of authorities, attach- (See Appendix IV.) The affidavit or ments, and certificate of service. A re- sworn statement must include a spe- quest for leave to file a pleading that cific and detailed description of the cir- exceeds the limitations prescribed in cumstances alleged to constitute good this paragraph must be received by the cause, and it should be accompanied by Clerk of the Board at least 3 days be- any available documentation or other fore the filing deadline. Such requests evidence supporting the matters as- must give the reasons for a waiver as serted. well as the desired length of the plead- (g) Late filings. Any pleading de- ing and are granted only in exceptional scribed in paragraph (a) of this section circumstances. The page and word lim- that is filed late must be accompanied its set forth above are maximum lim- by a motion that shows good cause for its. Parties are not expected or re- the untimely filing, unless the Board quired to submit pleadings of the max- has specifically granted an extension of imum length. Typically, a well-written time under paragraph (f) of this sec- petition for review is between 5 and 10 tion, or unless a motion for extension pages long. is pending before the Board. The mo- (i) Intervention. (1) By Director of tion must be accompanied by an affi- OPM. The Director of OPM may inter- davit or sworn statement under 28 vene in a case before the Board under U.S.C. 1746. (See Appendix IV.) The affi- the standards stated in 5 U.S.C. 7701(d). davit or sworn statement must include: The notice of intervention is timely if The reasons for failing to request an it is filed with the Clerk of the Board extension before the deadline for the within 45 days of the date the petition submission, and a specific and detailed for review was filed. If the Director re- description of the circumstances caus- quests additional time for filing a brief ing the late filing, accompanied by sup- on intervention, the Board may, in its porting documentation or other evi- discretion, grant the request. A party dence. Any response to the motion may may file a response to the Director’s be included in the response to the peti- brief within 15 days of the date of serv- tion for review, the cross petition for ice of that brief. The Director must review, or the response to the cross pe- serve the notice of intervention and tition for review. The response will not the brief on all parties. extend the time provided by paragraph (2) By Special Counsel. (i) Under 5 (e) of this section to file a cross peti- U.S.C. 1212(c), the Special Counsel may tion for review or to respond to the pe- intervene as a matter of right, except tition or cross petition. In the absence as provided in paragraph (i)(2)(ii) of of a motion, the Board may, in its dis- this section. The notice of intervention cretion, determine on the basis of the is timely filed if it is filed with the existing record whether there was good Clerk of the Board within 45 days of cause for the untimely filing, or it may the date the petition for review was provide the party that submitted the filed. If the Special Counsel requests document with an opportunity to show additional time for filing a brief on why it should not be dismissed or ex- intervention, the Board may, in its dis- cluded as untimely. cretion, grant the request. A party may (h) Length limitations. A petition for file a response to the Special Counsel’s review, a cross petition for review, or a brief within 15 days of the date of serv- response to a petition for review, ice. The Special Counsel must serve the whether computer generated, typed, or notice of intervention and the brief on handwritten, is limited to 30 pages or all parties. 7500 words, whichever is less. A reply to (ii) The Special Counsel may not in- a response to a petition for review is tervene in an action brought by an in- limited to 15 pages or 3750 words, dividual under 5 U.S.C. 1221, or in an

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appeal brought by an individual under § 1201.115 Criteria for granting peti- 5 U.S.C. 7701, without the consent of tion or cross petition for review. that individual. The Special Counsel The Board normally will consider must present evidence that the indi- only issues raised in a timely filed pe- vidual has consented to the interven- tition or cross petition for review. Sit- tion at the time the motion to inter- uations in which the Board may grant vene is filed. a petition or cross petition for review (3) Permissive intervenors. Any person, include, but are not limited to, a show- organization, or agency, by motion ing that: made in a petition for review, may ask (a) The initial decision contains erro- for permission to intervene. The mo- neous findings of material fact. tion must state in detail the reasons (1) Any alleged factual error must be why the person, organization, or agen- material, meaning of sufficient weight cy should be permitted to intervene. A to warrant an outcome different from motion for permission to intervene will that of the initial decision. be granted if the requester shows that (2) A petitioner who alleges that the he or she will be affected directly by judge made erroneous findings of mate- the outcome of the proceeding. Any rial fact must explain why the chal- person alleged to have committed a lenged factual determination is incor- prohibited personnel practice under 5 rect and identify specific evidence in U.S.C. 2302(b) may ask for permission the record that demonstrates the error. to intervene. In reviewing a claim of an erroneous (j) Service. A party submitting a finding of fact, the Board will give def- pleading must serve a copy of it on erence to an administrative judge’s each party and on each representative, credibility determinations when they as required by paragraph (b)(2) of are based, explicitly or implicitly, on § 1201.26. the observation of the demeanor of wit- (k) Closing the record. The record nesses testifying at a hearing. closes on expiration of the period for (b) The initial decision is based on an filing the reply to the response to the erroneous interpretation of statute or petition for review or on expiration of regulation or the erroneous application the period for filing a response to the of the law to the facts of the case. The cross petition for review, whichever is petitioner must explain how the error later, or to the brief on intervention, if affected the outcome of the case. any, or on any other date the Board (c) The judge’s rulings during either sets for this purpose. Once the record the course of the appeal or the initial closes, no additional evidence or argu- decision were not consistent with re- ment will be accepted unless it is new quired procedures or involved an abuse and material as defined in § 1201.115(d) of discretion, and the resulting error and the party submitting it shows that affected the outcome of the case. the evidence or argument was not read- (d) New and material evidence or ily available before the record closed. legal argument is available that, de- (l) Rejection for failure to comply. The spite the petitioner’s due diligence, was Clerk of the Board may reject material not available when the record closed. submitted for filing that does not sub- To constitute new evidence, the infor- stantially conform to the procedural mation contained in the documents, requirements of this subpart by issuing not just the documents themselves, a rejection letter advising the parties must have been unavailable despite due of the nature of the nonconformity and diligence when the record closed. the requirements and deadline for re- (e) Notwithstanding the above provi- submission. Any deadlines affected by sions in this section, the Board re- the rejection will be addressed in the serves the authority to consider any rejection letter. issue in an appeal before it. [77 FR 62368, Oct. 12, 2012, as amended at 78 [77 FR 62369, Oct. 12, 2012] FR 23458, Apr. 19, 2013]

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§ 1201.116 Compliance with orders for (e) Effect of failure to show compliance interim relief. with interim relief order. Failure by an (a) Certification of compliance. If the agency to provide the certification re- appellant was the prevailing party in quired by paragraph (a) of this section the initial decision and the decision with its petition or cross petition for granted the appellant interim relief, review, or to provide evidence of com- any petition or cross petition for re- pliance in response to a Board order in view filed by the agency must be ac- accordance with paragraphs (b), (c), or companied by a certification that the (d) of this section, may result in the agency has complied with the interim dismissal of the agency’s petition or relief order either by providing the re- cross petition for review. quired interim relief or by satisfying (f) Back pay and attorney fees. Noth- the requirements of 5 U.S.C. ing in this section shall be construed to 7701(b)(2)(A)(ii) and (B). require any payment of back pay for (b) Challenge to certification. If the ap- the period preceding the date of the pellant challenges the agency’s certifi- judge’s initial decision or attorney fees cation of compliance with the interim before the decision of the Board be- relief order, the Board will issue an comes final. order affording the agency the oppor- (g) Allegations of noncompliance after a tunity to submit evidence of its com- final decision is issued. If the initial de- pliance. The appellant may respond to cision granted the appellant interim the agency’s submission of evidence relief, but the appellant is not the pre- within 10 days after the date of service vailing party in the final Board order of the submission. disposing of a petition for review, and (c) Allegation of noncompliance in peti- the appellant believes that the agency tion or cross petition for review. If an ap- has not provided full interim relief, the pellant or an intervenor files a petition appellant may file an enforcement pe- or cross petition for review of an initial tition with the regional office under decision ordering interim relief and 1201.182 of this part. The appellant such petition includes a challenge to must file this petition within 20 days of the agency’s compliance with the in- learning of the agency’s failure to pro- terim relief order, upon order of the vide full interim relief. If the appellant Board the agency must submit evi- prevails in the final Board order dis- dence that it has provided the interim posing of a petition for review, then relief required or that it has satisfied any interim relief enforcement motion the requirements of 5 U.S.C. filed will be treated as a motion for en- 7701(b)(2)(A)(ii) and (B). forcement of the final decision. Peti- (d) Request for dismissal for noncompli- tions under this subsection will be ance with interim relief order. If the processed under 1201.183 of this part. agency files a petition or cross petition [77 FR 62369, Oct. 12, 2012] for review and has not provided the required interim relief, the appellant § 1201.117 Board decisions; procedures may request dismissal of the agency’s for review or reopening. petition. Any such request must be (a) In any case that is reopened or refiled with the Clerk of the Board with- viewed, the Board may: in 25 days of the date of service of the (1) Issue a decision that decides the agency’s petition. A copy of the re- case; sponse must be served on the agency at (2) Hear oral arguments; the same time it is filed with the (3) Require that briefs be filed; Board. The agency may respond with (4) Remand the appeal so that the evidence and argument to the appel- judge may take further testimony or lant’s request to dismiss within 15 days evidence or make further findings or of the date of service of the request. If conclusions; or the appellant files a motion to dismiss (5) Take any other action necessary beyond the time limit, the Board will for final disposition of the case. dismiss the motion as untimely unless (b) The Board may affirm, reverse, the appellant shows that it is based on modify, or vacate the initial decision information not readily available be- of the judge, in whole or in part. The fore the close of the time limit. Board may issue a final decision and,

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when appropriate, order a date for com- Management may file a petition for re- pliance with that decision. consideration of a Board final decision (c) The Board may issue a decision in if he or she determines: the form of a precedential Opinion and (1) That the Board erred in inter- Order or a nonprecedential Order. preting a civil service law, rule, or reg- (1) Opinion and Order. An Opinion and ulation affecting personnel manage- Order is a precedential decision of the ment, and Board and may be appropriately cited (2) That the Board’s decision will or referred to by any party. have a substantial impact on a civil (2) Nonprecedential Orders. A non- service law, rule, regulation, or policy precedential Order is one that the directive. Board has determined does not add sig- (b) Time limit. The Director must file nificantly to the body of MSPB case the petition for reconsideration within law. The Board may, in its discretion, 35 days after the date of service of the include in nonprecedential Orders a Board’s final decision. discussion of the issue(s) to assist the (c) Briefs. After the petition is filed, parties in understanding the reason(s) the Board will make the official record for the Board’s disposition in a par- relating to the petition for reconsider- ticular appeal. Nonprecedential Orders ation available to the Director for re- are not binding on the Board or its ad- view. The Director’s brief in support of ministrative judges in any future ap- the petition for reconsideration must peals except when it is determined they be filed within 20 days after the Board have a preclusive effect on parties makes the record available for review. under the doctrines of res judicata Any party’s opposition to the petition (claim preclusion), collateral estoppel for reconsideration must be filed with- (issue preclusion), judicial estoppel, or in 25 days from the date of service of law of the case. Parties may cite non- the Director’s brief. precedential Orders, but such orders (d) Stays. If the Director of OPM files have no precedential value; the Board a petition for reconsideration, he or and its administrative judges are not she also may ask the Board to stay its required to follow or distinguish them final decision. An application for a in any future decisions. In contrast, a stay, with a supporting memorandum, precedential decision issued as an must be filed at the same time as the Opinion and Order has been identified petition for reconsideration. by the Board as significantly contributing to the Board’s case law. [54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994, as amended at 77 FR [76 FR 60707, Sept. 30, 2011, as amended at 77 62370, Oct. 12, 2012] FR 62370, Oct. 12, 2012] § 1201.120 Judicial review. § 1201.118 Board reopening of final decisions. Any employee or applicant for employment who is adversely affected by Regardless of any other provision of a final order or decision of the Board this part, the Board may at any time under the provisions of 5 U.S.C. 7703 reopen any appeal in which it has may obtain judicial review as provided issued a final order or in which an ini- by 5 U.S.C. 7703. As § 1201.175 of this tial decision has become the Board’s part provides, an appropriate United final decision by operation of law. The States district court has jurisdiction Board will exercise its discretion to re- over a request for judicial review of open an appeal only in unusual or ex- cases involving the kinds of discrimi- traordinary circumstances and gen- nation issues described in 5 U.S.C. 7702. erally within a short period of time after the decision becomes final. [78 FR 39545, July 2, 2013] [77 FR 62370, Oct. 12, 2012] Subpart D—Procedures for § 1201.119 OPM petition for reconsid- Original Jurisdiction Cases eration.

(a) Criteria. Under 5 U.S.C. 7703(d), the SOURCE: 62 FR 48451, Sept. 16, 1997, unless Director of the Office of Personnel otherwise noted.

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GENERAL SPECIAL COUNSEL DISCIPLINARY ACTIONS

§ 1201.121 Scope of jurisdiction; appli- § 1201.122 Filing complaint; serving cation of subparts B, F, and H. documents on parties. (a) Scope. The Board has original ju- (a) Place of filing. A Special Counsel risdiction over complaints filed by the complaint seeking disciplinary action Special Counsel seeking corrective or under 5 U.S.C. 1215(a)(1) (including a disciplinary action (including com- complaint alleging a violation of the Hatch Political Activities Act) must be plaints alleging a violation of the filed with the Clerk of the Board. Hatch Political Activities Act), re- (b) Initial filing and service. The Spe- quests by the Special Counsel for stays cial Counsel must file a copy of the of certain personnel actions, proposed complaint, together with numbered agency actions against administrative and tabbed exhibits or attachments, if law judges, and removals of career ap- any, and a certificate of service listing pointees from the Senior Executive each party or the party’s representa- Service for performance reasons. tive. The certificate of service must (b) Application of subparts B, F, and H. show the last known address, telephone (1) Except as otherwise expressly pro- number, and facsimile number of each vided by this subpart, the regulations party or representative. The Special in subpart B of this part applicable to Counsel must serve a copy of the com- appellate case processing also apply to plaint on each party and the party’s original jurisdiction cases processed representative, as shown on the certifi- under this subpart. cate of service. (2) Subpart F of this part applies to (c) Subsequent filings and service. Each enforcement proceedings in connection party must serve on every other party or the party’s representative one copy with Special Counsel complaints and of each of its pleadings, as defined by stay requests, and agency actions § 1201.4(b). A certificate of service de- against administrative law judges, describing how and when service was cided under this subpart. made must accompany each pleading. (3) Subpart H of this part applies to Each party is responsible for notifying requests for attorney fees or compen- the Board and the other parties in satory damages in connection with writing of any change in name, ad- Special Counsel corrective and discipli- dress, telephone number, or facsimile nary action complaints, and agency ac- number of the party or the party’s rep- tions against administrative law resentative. judges, decided under this subpart. [62 FR 48451, Sept. 16, 1997, as amended at 68 Subpart H of this part also applies to FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, requests for consequential damages in 2004; 77 FR 62370, Oct. 12, 2012] connection with Special Counsel corrective action complaints decided § 1201.123 Contents of complaint. under this subpart. (a) If the Special Counsel determines (c) The provisions of this subpart do that the Board should take any of the not apply to appeals alleging non-com- actions listed below, he or she must file pliance with the provisions of chapter a written complaint in accordance with 43 of title 38 of the United States Code § 1201.122 of this part, stating with par- relating to the employment or reem- ticularity any alleged violations of law ployment rights or benefits to which a or regulation, along with the sup- person is entitled after service in the porting facts. uniformed services, in which the Spe- (1) Action to discipline an employee cial Counsel appears as the designated alleged to have committed a prohibited representative of the appellant. Such personnel practice, 5 U.S.C. 1215(a)(1)(A); appeals are governed by part 1208 of (2) Action to discipline an employee this title. alleged to have violated any law, rule, [62 FR 48451, Sept. 16, 1997, as amended at 62 or regulation, or to have engaged in FR 66815, Dec. 22, 1997; 65 FR 5409, Feb. 4, prohibited conduct, within the jurisdic- 2000] tion of the Special Counsel under 5

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U.S.C. 1216 (including an alleged viola- contest the allegations in the com- tion by a Federal or District of Colum- plaint. Unanswered allegations may be bia government employee involving po- considered admitted and may form the litical activity prohibited under 5 basis of the administrative law judge’s U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), decision. 1216(a), and 1216(c); (d) Content. An answer must contain (3) Action to discipline a State or a specific denial, admission, or expla- local government employee for an al- nation of each fact alleged in the com- leged violation involving prohibited po- plaint. If the respondent has no knowl- litical activity, 5 U.S.C. 1505; or edge of a fact, he or she must say so. (4) Action to discipline an employee The respondent may include state- for an alleged knowing and willful re- ments of fact and appropriate docu- fusal or failure to comply with an order mentation to support each denial or de- of the Board, 5 U.S.C. 1215(a)(1)(C). fense. Allegations that are unanswered (b) The administrative law judge to or admitted in the answer may be con- whom the complaint is assigned may sidered true. order the Special Counsel and the responding party to file briefs, memo- § 1201.125 Administrative law judge. randa, or both in any disciplinary ac- (a) An administrative law judge will tion complaint the Special Counsel hear a disciplinary action complaint brings before the Board. brought by the Special Counsel. (b) The administrative law judge will § 1201.124 Rights; answer to complaint. issue an initial decision on the com- (a) Responsibilities of Clerk of the plaint pursuant to 5 U.S.C. 557. The ap- Board. The Clerk of the Board shall fur- plicable provisions of §§ 1201.111, nish a copy of the applicable Board reg- 1201.112, and 1201.113 of this part govern ulations to each party that is not a the issuance of initial decisions, the ju- Federal, State, or local government risdiction of the judge, and the finality agency and shall inform such a party of of initial decisions. The initial decision the party’s rights under paragraph (b) will be subject to the procedures for a of this section and the requirements re- petition for review by the Board under garding the timeliness and content of subpart C of this part. an answer to the Special Counsel’s [62 FR 48451, Sept. 16, 1997, as amended at 63 complaint under paragraphs (c) and (d), FR 42686, Aug. 11, 1998; 70 FR 30609, May 27, respectively, of this section. 2005; 78 FR 39545, July 2, 2013] (b) Rights. When the Special Counsel files a complaint proposing a discipli- § 1201.126 Final decisions. nary action against an employee under (a) In any action to discipline an em- 5 U.S.C. 1215(a)(1), the employee has ployee, except as provided in paragraph the right: (b) of this section, the administrative (1) To file an answer, supported by af- law judge, or the Board on petition for fidavits and documentary evidence; review, may order a removal, a reduc- (2) To be represented; tion in grade, a debarment (not to ex- (3) To a hearing on the record before ceed five years), a suspension, a rep- an administrative law judge; rimand, or an assessment of a civil pen- (4) To a written decision, issued at alty not to exceed $1,112, 5 U.S.C. the earliest practicable date, in which 1215(a)(3), 7326; 28 U.S.C. 2461 note. the administrative law judge states the (b) In any action in which the admin- reasons for his or her decision; and istrative law judge, or the Board on pe- (5) To a copy of the administrative tition for review, finds under 5 U.S.C. law judge’s decision and subsequent 1505 that a State or local government final decision by the Board, if any. employee has violated the Hatch Polit- (c) Filing and default. A party named ical Activities Act and that the em- in a Special Counsel disciplinary ac- ployee’s removal is warranted, the ad- tion complaint may file an answer with ministrative law judge, or the Board on the Clerk of the Board within 35 days petition for review, will issue a written of the date of service of the complaint. decision notifying the employing agen- If a party fails to answer, the failure cy and the employee that the employee may constitute waiver of the right to must be removed and not reappointed

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within 18 months of the date of the de- § 1201.4(b). A certificate of service decision. If the agency fails to remove scribing how and when service was the employee, or if it reappoints the made must accompany each pleading. employee within 18 months, the admin- Each party is responsible for notifying istrative law judge, or the Board on pe- the Board and the other parties in tition for review, may order the Fed- writing of any change in name, ad- eral entity administering loans or dress, telephone number, or facsimile grants to the agency to withhold funds number of the party or the party’s rep- from the agency as provided under 5 resentative. U.S.C. 1506. [62 FR 48451, Sept. 16, 1997, as amended at 68 [62 FR 48451, Sept. 16, 1997, as amended at 70 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, FR 30609, May 27, 2005; 78 FR 39545, July 2, 2004; 77 FR 62370, Oct. 12, 2012] 2013; 82 FR 25716, June 5, 2017; 83 FR 1174, Jan. 10, 2018; 84 FR 5584, Feb. 22, 2019; 85 FR § 1201.129 Contents of complaint. 12724, Mar. 4, 2020] (a) If the Special Counsel determines § 1201.127 Judicial review. that the Board should take action to require an agency to correct a prohib- (a) An employee subject to a final ited personnel practice (or a pattern of Board decision imposing disciplinary prohibited personnel practices) under 5 action under 5 U.S.C. 1215 may obtain U.S.C. 1214(b)(4), he or she must file a judicial review of the decision in the written complaint in accordance with United States Court of Appeals for the § 1201.128 of this part, stating with par- Federal Circuit, except as provided ticularity any alleged violations of law under paragraph (b) of this section. 5 or regulation, along with the sup- U.S.C. 1215(a)(4). porting facts. (b) A party aggrieved by a determina- (b) If the Special Counsel files a cor- tion or order of the Board under 5 rective action with the Board on behalf U.S.C. 1505 (governing alleged viola- of an employee, former employee, or tions of the Hatch Political Activities applicant for employment who has Act by State or local government em- sought corrective action from the ployees) may obtain judicial review in Board directly under 5 U.S.C. 1214(a)(3), an appropriate United States district the Special Counsel must provide evi- court. 5 U.S.C. 1508. dence that the employee, former em- SPECIAL COUNSEL CORRECTIVE ACTIONS ployee, or applicant has consented to the Special Counsel’s seeking correc- § 1201.128 Filing complaint; serving tive action. 5 U.S.C. 1214(a)(4). documents on parties. (c) The judge to whom the complaint (a) Place of filing. A Special Counsel is assigned may order the Special complaint seeking corrective action Counsel and the respondent agency to under 5 U.S.C. 1214 must be filed with file briefs, memoranda, or both in any the Clerk of the Board. After the com- corrective action complaint the Spe- plaint has been assigned to a judge, cial Counsel brings before the Board. subsequent pleadings must be filed with the Board office where the judge § 1201.130 Rights; answer to complaint. is located. (a) Rights. (1) A person on whose be- (b) Initial filing and service. The Spe- half the Special Counsel brings a cor- cial Counsel must file a copy of the rective action has a right to request complaint, together with numbered intervention in the proceeding in ac- and tabbed exhibits or attachments, if cordance with the regulations in any, and a certificate of service listing § 1201.34 of this part. The Clerk of the the respondent agency or the agency’s Board shall notify each such person of representative, and each person on this right. whose behalf the corrective action is (2) When the Special Counsel files a brought. complaint seeking corrective action, (c) Subsequent filings and service. Each the judge to whom the complaint is as- party must serve on every other party signed shall provide an opportunity for or the party’s representative one copy oral or written comments by the Spe- of each of its pleadings, as defined by cial Counsel, the agency involved, and

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the Office of Personnel Management. 5 judge, or the Board on petition for re- U.S.C. 1214(b)(3)(A). view, may order appropriate corrective (3) The judge to whom the complaint action. 5 U.S.C. 1214(b)(4)(A). is assigned shall provide a person al- (b)(1) Subject to the provisions of leged to have been the subject of any paragraph (b)(2) of this section, in any prohibited personnel practice alleged case involving an alleged prohibited in the complaint the opportunity to personnel practice described in 5 U.S.C. make written comments, regardless of 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or whether that person has requested and (D), the judge, or the Board on petition been granted intervenor status. 5 for review, will order appropriate cor- U.S.C. 1214(b)(3)(B). rective action if the Special Counsel (b) Filing and default. An agency demonstrates that a disclosure or pro- named as respondent in a Special Coun- tected activity described under 5 U.S.C. sel corrective action complaint may 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or file an answer with the judge to whom (D) was a contributing factor in the the complaint is assigned within 35 personnel action that was taken or will days of the date of service of the com- be taken against the individual. plaint. If the agency fails to answer, (2) Corrective action under paragraph the failure may constitute waiver of (b)(1) of this section may not be or- the right to contest the allegations in dered if the agency demonstrates by the complaint. Unanswered allegations clear and convincing evidence that it may be considered admitted and may would have taken the same personnel form the basis of the judge’s decision. action in the absence of such disclosure (c) Content. An answer must contain or protected activity. 5 U.S.C. a specific denial, admission, or expla- 1214(b)(4)(B). nation of each fact alleged in the com- [62 FR 48451, Sept. 16, 1997, as amended at 78 plaint. If the respondent agency has no FR 39545, July 2, 2013] knowledge of a fact, it must say so. The respondent may include state- § 1201.133 Judicial review. ments of fact and appropriate docu- An employee, former employee, or mentation to support each denial or de- applicant for employment who is ad- fense. Allegations that are unanswered versely affected by a final Board deci- or admitted in the answer may be con- sion on a corrective action complaint sidered true. brought by the Special Counsel may § 1201.131 Judge. obtain judicial review of the decision as provided by 5 U.S.C. 7703. (a) The Board will assign a corrective action complaint brought by the Spe- [78 FR 39545, July 2, 2013] cial Counsel under this subpart to a SPECIAL COUNSEL REQUESTS FOR STAYS judge, as defined at § 1201.4(a) of this part, for hearing. § 1201.134 Deciding official; filing stay (b) The judge will issue an initial de- request; serving documents on par- cision on the complaint pursuant to 5 ties. U.S.C. 557. The applicable provisions of (a) Request to stay personnel action. §§ 1201.111, 1201.112, and 1201.113 of this Under 5 U.S.C. 1214(b)(1), the Special part govern the issuance of initial deci- Counsel may seek to stay a personnel sions, the jurisdiction of the judge, and action if the Special Counsel deter- the finality of initial decisions. The mines that there are reasonable initial decision will be subject to the grounds to believe that the action was procedures for a petition for review by taken or will be taken as a result of a the Board under subpart C of this part. prohibited personnel practice. [62 FR 48451, Sept. 16, 1997, as amended at 62 (b) Deciding official. Any member of FR 66815, Dec. 22, 1997] the Board may delegate to an administrative law judge the authority to de- § 1201.132 Final decisions. cide a Special Counsel request for an (a) In any Special Counsel complaint initial stay. The Board may delegate to seeking corrective action based on an a member of the Board the authority allegation that a prohibited personnel to rule on any matter related to a stay practice has been committed, the that has been granted to the Special

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Counsel, including a motion for exten- under the facts and circumstances, the sion or termination of the stay. requested stay would not be appro- (c) Place of filing. A Special Counsel priate. Unless the stay is denied within stay request must be filed with the the 3-day period, it is considered grant- Clerk of the Board. ed by operation of law. (d) Initial filing and service. The Spe- (b) Extension of stay. Upon the Special cial Counsel must file a copy of the re- Counsel’s request, a stay granted under quest, together with numbered and 5 U.S.C. 1214(b)(1)(A) may be extended tabbed exhibits or attachments, if any, for an appropriate period of time, but and a certificate of service listing the only after providing the agency with respondent agency or the agency’s rep- an opportunity to comment on the re- resentative. The certificate of service quest. Any request for an extension of must show the last known address, a stay under 5 U.S.C. 1214(b)(1)(B) must telephone number, and facsimile num- be received by the Board and the agen- ber of the agency or its representative. cy no later than 15 days before the ex- The Special Counsel must serve a copy piration date of the stay. A brief de- of the request on the agency or its rep- scribing the facts and any relevant resentative, as shown on the certificate legal authority that should be consid- of service. ered must accompany the request for (e) Subsequent filings and service. Each extension. Any response by the agency party must serve on every other party must be received by the Board no later or the party’s representative one copy than 8 days before the expiration date of each of its pleadings, as defined by of the stay. § 1201.4(b). A certificate of service de- (c) Evidence of compliance with a stay. scribing how and when service was Within five working days from the date made must accompany each pleading. of a stay order or an order extending a Each party is responsible for notifying stay, the agency ordered to stay a per- the Board and the other parties in sonnel action must file evidence set- writing of any change in name, ad- ting forth facts and circumstances dress, telephone number, or facsimile demonstrating compliance with the number of the party or the party’s rep- order. resentative. (d) Termination of stay. A stay may be [62 FR 48451, Sept. 16, 1997, as amended at 63 terminated at any time, except that a FR 42686, Aug. 11, 1998; 68 FR 59863, Oct. 20, stay may not be terminated: 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, (1) On the motion of an agency, or on Feb. 26, 2008; 77 FR 62370, Oct. 12, 2012] the deciding official’s own motion, § 1201.135 Contents of stay request. without first providing notice and opportunity for oral or written comments The Special Counsel, or that offi- to the Special Counsel and the indi- cial’s representative, must sign each vidual on whose behalf the stay was or- stay request, and must include the fol- dered; or lowing information in the request: (2) On the motion of the Special (a) The names of the parties; Counsel without first providing notice (b) The agency and officials involved; and opportunity for oral or written (c) The nature of the action to be comments to the individual on whose stayed; behalf the stay was ordered. 5 U.S.C. (d) A concise statement of facts justi- 1214(b)(1)(D). fying the charge that the personnel action was or will be the result of a pro- (e) Additional information. At any hibited personnel practice; and time, where appropriate, the Special (e) The laws or regulations that were Counsel, the agency, or both may be re- violated, or that will be violated if the quired to appear and present further stay is not issued. information or explanation regarding a request for a stay, to file supplemental § 1201.136 Action on stay request. briefs or memoranda, or to supply fac- (a) Initial stay. A Special Counsel re- tual information needed to make a de- quest for an initial stay of 45 days will cision regarding a stay. be granted within three working days [62 FR 48451, Sept. 16, 1997, as amended at 63 after the filing of the request, unless, FR 42686, Aug. 11, 1998]

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ACTIONS AGAINST ADMINISTRATIVE LAW § 1201.139 Rights; answer to complaint. JUDGES (a) Responsibilities of Clerk of the § 1201.137 Covered actions; filing com- Board. The Clerk of the Board shall fur- plaint; serving documents on par- nish a copy of the applicable Board reg- ties. ulations to each administrative law (a) Covered actions. The jurisdiction judge named as a respondent in the of the Board under 5 U.S.C. 7521 and complaint and shall inform each re- this subpart with respect to actions spondent of his or her rights under against administrative law judges is paragraph (b) of this section and the limited to proposals by an agency to requirements regarding the timeliness take any of the following actions and content of an answer to the agen- against an administrative law judge: cy’s complaint under paragraphs (c) (1) Removal; and (d), respectively, of this section. (2) Suspension; (b) Rights. When an agency files a (3) Reduction in grade; complaint proposing an action against (4) Reduction in pay; and an administrative law judge under 5 (5) Furlough of 30 days or less. U.S.C. 7521 and this subpart, the admin- (b) Place of filing. To initiate an ac- istrative law judge has the right: tion against an administrative law (1) To file an answer, supported by af- judge under this subpart, an agency fidavits and documentary evidence; must file a complaint with the Clerk of (2) To be represented; the Board. (3) To a hearing on the record before (c) Initial filing and service. The agen- an administrative law judge; cy must file a copy of the complaint, (4) To a written decision, issued at together with numbered and tabbed ex- the earliest practicable date, in which hibits or attachments, if any, and a the administrative law judge states the certificate of service listing each party reasons for his or her decision; and or the party’s representative. The cer- (5) To a copy of the administrative tificate of service must show the last law judge’s decision and subsequent known address, telephone number, and final decision by the Board, if any. facsimile number of each party or rep- (c) Filing and default. A respondent resentative. The agency must serve a named in an agency complaint may file copy of the complaint on each party an answer with the Clerk of the Board and the party’s representative, as within 35 days of the date of service of shown on the certificate of service. the complaint. If a respondent fails to (d) Subsequent filings and service. Each answer, the failure may constitute party must serve on every other party waiver of the right to contest the alle- or the party’s representative one copy gations in the complaint. Unanswered of each of its pleadings, as defined by allegations may be considered admit- § 1201.4(b). A certificate of service de- ted and may form the basis of the ad- scribing how and when service was ministrative law judge’s decision. made must accompany each pleading. (d) Content. An answer must contain Each party is responsible for notifying a specific denial, admission, or expla- the Board and the other parties in nation of each fact alleged in the com- writing of any change in name, ad- plaint. If the respondent has no knowl- dress, telephone number, or facsimile edge of a fact, he or she must say so. number of the party or the party’s rep- The respondent may include state- resentative. ments of fact and appropriate docu- [62 FR 48451, Sept. 16, 1997, as amended at 68 mentation to support each denial or de- FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, fense. Allegations that are unanswered 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62370, or admitted in the answer may be con- Oct. 12, 2012] sidered true.

§ 1201.138 Contents of complaint. § 1201.140 Judge; requirement for find- A complaint filed under this section ing of good cause. must describe with particularity the (a) Judge. (1) An administrative law facts that support the proposed agency judge will hear an action brought by an action. employing agency under this subpart

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against a respondent administrative Board. Under 5 CFR 359.502, the agency law judge. proposing the removal must provide (2) The judge will issue an initial de- the appointee 30 days advance notice cision pursuant to 5 U.S.C. 557. The ap- and must advise the appointee of the plicable provisions of §§ 1201.111, right to request a hearing. If the ap- 1201.112, and 1201.113 of this part govern pointee files the request at least 15 the issuance of initial decisions, the ju- days before the effective date of the risdiction of the judge, and the finality proposed removal, the request will be of initial decisions. The initial decision granted. will be subject to the procedures for a (b) Place of filing. A request for an in- petition for review by the Board under formal hearing under paragraph (a) of subpart C of this part. this section must be filed with the (b) Requirement for finding of good Clerk of the Board. After the request cause. A decision on a proposed agency has been assigned to a judge, subse- action under this subpart against an quent pleadings must be filed with the administrative law judge will authorize Board office where the judge is located. the agency to take a disciplinary ac- (c) Initial filing and service. Except tion, and will specify the penalty to be when filed electronically under 1201.14, imposed, only after a finding of good the appointee must file two copies of cause as required by 5 U.S.C. 7521 has the request, together with numbered been made. and tabbed exhibits or attachments, if any, and a certificate of service listing § 1201.141 Judicial review. the agency proposing the appointee’s An administrative law judge subject removal or the agency’s representative. to a final Board decision authorizing a The certificate of service must show proposed agency action under 5 U.S.C. the last known address, telephone 7521 may obtain judicial review of the number, and facsimile number of the decision in the United States Court of agency or its representative. The ap- Appeals for the Federal Circuit. 5 pointee must serve a copy of the re- U.S.C. 7703. quest on the agency or its representative, as shown on the certificate of § 1201.142 Actions filed by administra- service. tive law judges. (d) Subsequent filings and service. Each An administrative law judge who al- party must serve on every other party leges a constructive removal or other or the party’s representative one copy action by an agency in violation of 5 of each of its pleadings, as defined by U.S.C. 7521 may file a complaint with § 1201.4(b). A certificate of service de- the Board under this subpart. The fil- scribing how and when service was ing and service requirements of made must accompany each pleading. § 1201.137 of this part apply. Such com- Each party is responsible for notifying plaints shall be adjudicated in the the Board and the other parties in same manner as agency complaints writing of any change in name, ad- under this subpart. dress, telephone number, or facsimile number of the party or the party’s rep- [77 FR 62370, Oct. 12, 2012] resentative. REMOVAL FROM THE SENIOR EXECUTIVE [62 FR 48451, Sept. 16, 1997, as amended at 68 SERVICE FR 59864, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62371, § 1201.143 Right to hearing; filing com- Oct. 12, 2012] plaint; serving documents on parties. § 1201.144 Hearing procedures; refer- (a) Right to hearing. If an agency pro- ring the record. poses to remove a career appointee (a) The official designated to hold an from the Senior Executive Service informal hearing requested by a career under 5 U.S.C. 3592(a) (2) and 5 CFR appointee whose removal from the Sen- 359.502, and to place that employee in ior Executive Service has been pro- another civil service position, the ap- posed under 5 U.S.C. 3592(a)(2) and 5 pointee may request an informal hear- CFR 359.502 will be a judge, as defined ing before an official designated by the at § 1201.4(a) of this part.

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(b) The appointee, the appointee’s § 1201.147 Requests for protective or- representative, or both may appear and ders by persons other than the Spe- present arguments in an informal hear- cial Counsel. ing before the judge. A verbatim record Requests for protective orders by per- of the proceeding will be made. The ap- sons other than the Special Counsel in pointee has no other procedural rights connection with pending original juris- before the judge or the Board. diction proceedings are governed by (c) The judge will refer a copy of the § 1201.55(d) of this part. record to the Special Counsel, the Of- fice of Personnel Management, and the § 1201.148 Enforcement of protective employing agency for whatever action orders. may be appropriate. A protective order issued by a judge or the Board under this subpart may be § 1201.145 No appeal. enforced in the same manner as pro- There is no right under 5 U.S.C. 7703 vided under subpart F of this part for to appeal the agency’s action or any Board final decisions and orders. action by the judge or the Board in cases arising under § 1201.143(a) of this Subpart E—Procedures for Cases part. The removal action will not be Involving Allegations of Dis- delayed as a result of the hearing. crimination REQUESTS FOR PROTECTIVE ORDERS § 1201.151 Scope and policy. § 1201.146 Requests for protective or- (a) Scope. (1) The rules in this subpart ders by the Special Counsel. implement 5 U.S.C. 7702. They apply to (a) Under 5 U.S.C. 1204(e)(1)(B), the any case in which an employee or ap- Board may issue any order that may be plicant for employment alleges that a necessary to protect a witness or other personnel action appealable to the individual from harassment during an Board was based, in whole or in part, investigation by the Special Counsel or on prohibited discrimination. during the pendency of any proceeding (2) ‘‘Prohibited discrimination,’’ as before the Board, except that an agen- that term is used in this subpart, cy, other than the Office of the Special means discrimination prohibited by: Counsel, may not request a protective (i) Section 717 of the Civil Rights Act order with respect to an investigation of 1964, as amended (42 U.S.C. 2000e– by the Special Counsel during such in- 16(a)); vestigation. (ii) Section 6(d) of the Fair Labor (b) Any motion by the Special Coun- Standards Act of 1938, as amended (29 sel requesting a protective order must U.S.C. 206(d)); include a concise statement of reasons (iii) Section 501 of the Rehabilitation justifying the motion, together with Act of 1973, as amended (29 U.S.C. 791); any relevant documentary evidence. (iv) Sections 12 and 15 of the Age Dis- Where the request is made in connec- crimination in Employment Act of tion with a pending Special Counsel 1967, as amended (29 U.S.C. 631, 633a); or proceeding, the motion must be filed as (v) Any rule, regulation, or policy di- early in the proceeding as practicable. rective prescribed under any provision (c) Where there is a pending Special of law described in paragraphs (a)(2) (i) Counsel proceeding, a Special Counsel through (iv) of this section. motion requesting a protective order (b) Policy. The Board’s policy is to ad- must be filed with the judge con- judicate impartially, thoroughly, and ducting the proceeding, and the judge fairly all issues raised under this sub- will rule on the motion. Where there is part. no pending Special Counsel proceeding, a Special Counsel motion requesting a § 1201.152 Compliance with subpart B protective order must be filed with the procedures. Clerk of the Board, and the Board will Unless this subpart expressly pro- designate a judge, as defined at vides otherwise, all actions involving § 1201.4(a) of this part, to rule on the allegations of prohibited discrimina- motion. tion must comply with the regulations

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that are included in subpart B of this (b) If the appellant has filed a timely part. formal complaint of discrimination with the agency: § 1201.153 Contents of appeal. (1) An appeal must be filed within 30 (a) Contents. An appeal raising issues days after the appellant receives the of prohibited discrimination must com- agency resolution or final decision on ply with § 1201.24 of this part, with the the discrimination issue; or following exceptions: (2) If the agency has not resolved the (1) The appeal must state that there matter or issued a final decision on the was discrimination in connection with formal complaint within 120 days, the the matter appealed, and it must state appellant may appeal the matter di- specifically how the agency discrimi- rectly to the Board at any time after nated against the appellant; and the expiration of 120 calendar days. (2) The appeal must state whether Once the agency resolves the matter or the appellant has filed a grievance issues a final decision on the formal under a negotiated grievance procedure complaint, an appeal must be filed or a formal discrimination complaint within 30 days after the appellant re- with any agency regarding the matter ceives the agency resolution or final being appealed to the Board. If he or decision on the discrimination issue. she has done so, the appeal must state the date on which the appellant filed (c) If the appellant files an appeal the complaint or grievance, and it prematurely under this subpart, the must describe any action that the judge will dismiss the appeal without agency took in response to the com- prejudice to its later refiling under plaint or grievance. § 1201.22 of this part. If holding the ap- (b) Use of Board form or Internet filing peal for a short time would allow it to option. An appellant may comply with become timely, the judge may hold the paragraph (a) of this section by com- appeal rather than dismiss it. pleting MSPB Form 185, or by com- [54 FR 53504, Dec. 29, 1989, as amended at 59 pleting all requests for information FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, marked as required at the e-Appeal site 1997; 65 FR 25624, May 3, 2000; 73 FR 6834, Feb. (https://e-appeal.mspb.gov). MSPB Form 6, 2008; 77 FR 62371, Oct. 12, 2012] 185 can be accessed at the Board’s Web site (http://www.mspb.gov). § 1201.155 Requests for review of arbitrators’ decisions. [54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, (a) Source and applicability. (1) Under 2004; 77 FR 62371, Oct. 12, 2012] paragraph (d) of 5 U.S.C. 7121, an employee who believes he or she has been § 1201.154 Time for filing appeal. subjected to discrimination within the For purposes of this section, the date meaning of 5 U.S.C. 2302(b)(1), and who an appellant receives the agency’s deci- may raise the matter under either a sion is determined according to the statutory procedure such as 5 U.S.C. standard set forth at 1201.22(b)(3) of 7701 or under a negotiated grievance this part. Appellants who file appeals procedure, must make an election be- raising issues of prohibited discrimina- tween the two procedures. The election tion in connection with a matter other- of the negotiated grievance procedure wise appealable to the Board must ‘‘in no manner prejudices’’ the employ- comply with the following time limits: ee’s right to request Board review of (a) Where the appellant has been sub- the final decision pursuant to 5 U.S.C. ject to an action appealable to the 7702. Subsection (a)(1) of section 7702 Board, he or she may either file a time- provides that, ‘‘[n]otwithstanding any ly complaint of discrimination with other provision of law,’’ when an em- the agency or file an appeal with the ployee who has been subjected to an ac- Board no later than 30 days after the tion that is appealable to the Board effective date, if any, of the action and who alleges that the action was being appealed, or 30 days after the the result of discrimination within the date of the appellant’s receipt of the meaning of 5 U.S.C. 2302(b)(1), the agency’s decision on the appealable ac- Board will decide both the issue of dis- tion, whichever is later. crimination and the appealable action

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in accordance with the Board’s appel- for review, or to the brief on interven- late procedures under section 7701. tion, if any, or on any other date the (2) This section does not apply to em- Board sets for this purpose. Once the ployees of the Postal Service or to record closes, no additional evidence or other employees excluded from the argument will be accepted unless the coverage of the Federal labor manage- party submitting it shows that the evi- ment laws at chapter 71 of title 5, dence was not readily available before United States Code. the record closed. (b) When filed. The appellant’s request for Board review must be filed [77 FR 62371, Oct. 12, 2012] within 35 days after the date of issuance of the decision or, if the appel- § 1201.156 Time for processing appeals lant shows that he or she received the involving allegations of discrimina- decision more than 5 days after the tion. date of issuance, within 30 days after (a) Issue raised in appeal. When an ap- the date the appellant received the de- pellant alleges prohibited discrimina- cision. tion in the appeal, the judge will decide (c) Scope of Board review. If the nego- both the issue of discrimination and tiated grievance procedure permits al- the appealable action within 120 days legations of discrimination, the Board after the appeal is filed. will review only those claims of dis- (b) Issue not raised in appeal. When an crimination that were raised in the negotiated grievance procedure. If the ne- appellant has not alleged prohibited gotiated grievance procedure does not discrimination in the appeal, but has permit allegations of discrimination to raised the issue later in the proceeding, be raised, the appellant may raise such the judge will decide both the issue of claims before the Board. discrimination and the appealable ac- (d) Contents. The appellant must file tion within 120 days after the issue is the request with the Clerk of the raised. Board, Merit Systems Protection (c) Discrimination issue remanded to Board, 1615 M Street NW., Washington, agency. When the judge remands an DC 20419. The request for review must issue of discrimination to the agency, contain: adjudication will be completed within (1) A statement of the grounds on 120 days after the agency completes its which review is requested; action and returns the case to the (2) References to evidence of record Board. or rulings related to the issues before the Board; § 1201.157 Notice of right to judicial (3) Arguments in support of the stat- review. ed grounds that refer specifically to Any final decision of the Board under relevant documents and that include relevant citations of authority; and 5 U.S.C. 7702 will notify the appellant (4) Legible copies of the final griev- of his or her right, within 30 days after ance or arbitration decision, the agen- receiving the Board’s final decision, to cy decision to take the action, and petition the Equal Employment Oppor- other relevant documents. Those docu- tunity Commission to consider the ments may include a transcript or re- Board’s decision, or to file a civil according of the hearing. tion in an appropriate United States (e) Development of the record. The district court. If an appellant elects to Board, in its discretion, may develop waive the discrimination issue, an ap- the record as to a claim of prohibited peal may be filed with the United discrimination by ordering the parties States Court of Appeals for the Federal to submit additional evidence or for- Circuit as stated in § 1201.120 of this warding the request for review to a part. judge to conduct a hearing. (f) Closing of the record. The record [54 FR 53504, Dec. 29, 1989, as amended at 63 will close upon expiration of the period FR 41179, Aug. 3, 1998] for filing the response to the request

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REVIEW OF BOARD DECISION necessary in order to comply with the Commission’s request. § 1201.161 Action by the Equal Employ- (f) Commission concurrence in Board ment Opportunity Commission; ju- decision. If the Commission concurs in dicial review. the decision of the Board under 5 (a) Time limit for determination. In U.S.C. 7702(b)(3)(A), the appellant may cases in which an appellant petitions file suit in an appropriate United the Equal Employment Opportunity States district court. Commission (Commission) for consideration of the Board’s decision under 5 § 1201.162 Board action on the Com- U.S.C. 7702(b)(2), the Commission will mission decision; judicial review. determine, within 30 days after the (a) Board decision. Within 30 days date of the petition, whether it will after receipt of a decision of the Com- consider the decision. mission issued under 1201.161(c)(2), the (b) Judicial review. The Board’s deci- Board shall consider the decision and: sion will become judicially reviewable (1) Concur and adopt in whole the de- on: cision of the Commission; or (1) The date on which the decision is issued, if the appellant does not file a (2) To the extent that the Board finds petition with the Commission under 5 that, as a matter of law: U.S.C. 7702(b)(1); or (i) The Commission decision is based (2) The date of the Commission’s de- on an incorrect interpretation of any cision that it will not consider the pe- provision of any civil service law, rule, tition filed under 5 U.S.C. 7702(b)(2). regulation, or policy directive, or (c) Commission processing and time lim- (ii) The evidence in the record as a its. If the Commission decides to con- whole does not support the Commission sider the decision of the Board, within decision involving that provision, it 60 days after making its decision it will may reaffirm the decision of the Board. complete its consideration and either: In doing so, it may make revisions in (1) Concur in the decision of the the decision that it determines are ap- Board; or propriate. (2) Issue in writing and forward to (b) Judicial review. If the Board con- the Board for its action under § 1201.162 curs in or adopts the decision of the of this subpart another decision, which Commission under paragraph (a)(1) of differs from the decision of the Board this section, the decision of the Board to the extent that the Commission is a judicially reviewable action. finds that, as a matter of law: (i) The decision of the Board con- SPECIAL PANEL stitutes an incorrect interpretation of any provision of any law, rule, regula- § 1201.171 Referral of case to Special Panel. tion, or policy directive related to prohibited discrimination; or If the Board reaffirms its decision (ii) The evidence in the record as a under § 1201.162(a)(2) of this part with or whole does not support the decision in- without modification, it will certify volving that provision. the matter immediately to a Special (d) Transmittal of record. The Board Panel established under 5 U.S.C. will transmit a copy of its record to 7702(d). Upon certification, the Board, the Commission upon request. within 5 days (excluding Saturdays, (e) Development of additional evidence. Sundays, and Federal holidays), will When asked by the Commission to do transmit the administrative record in so, the Board or a judge will develop the proceeding to the Chairman of the additional evidence necessary to sup- Special Panel and to the Commission. plement the record. This action will be That record will include the following: completed within a period that will (a) The factual record compiled under permit the Commission to make its de- this section, which will include a tran- cision within the statutory 60-day time script of any hearing; limit referred to in paragraph (c) of (b) The decisions issued by the Board this section. The Board or the judge and the Commission under 5 U.S.C. may schedule additional proceedings if 7702; and

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(c) A transcript of oral arguments (3) The Board and the Commission made, or legal briefs filed, before the are responsible for all administrative Board or the Commission. costs the Special Panel incurs, and, to the extent practicable, they will divide § 1201.172 Organization of Special equally the costs of providing adminis- Panel; designation of members. trative assistance. If the Board and the (a) A Special Panel is composed of: Commission disagree on the manner in (1) A Chairman, appointed by the which costs are to be divided, the President with the advice and consent Chairman of the Special Panel will re- of the Senate, whose term is six (6) solve the disagreement. years; (e) Maintaining the official record. The (2) One member of the Board, des- Board will maintain the official record ignated by the Chairman of the Board of the appeal. It will transmit two cop- each time a Panel is convened; ies of each submission that is filed to (3) One member of the Commission, each member of the Special Panel in an designated by the Chairman of the expeditious manner. Commission each time a Panel is con- (f) Filing and service of pleadings. (1) vened. The parties must file the original and (b) Designation of Special Panel mem- six copies of each submission with the bers—(1) Time of designation. Within 5 Clerk, Merit Systems Protection days of certification of a case to a Spe- Board, 1615 M Street, NW., Washington, cial Panel, the Chairman of Board and DC 20419. The Office of the Clerk will the Chairman of the Commission each serve one copy of each submission on will designate one member from his or the other parties. her agency to serve on the Special (2) A certificate of service specifying Panel. how and when service was made must (2) Manner of designation. Letters des- accompany all submissions of the par- ignating the Panel members will be ties. served on the Chairman of the Panel (3) Service may be made by mail or and on the parties to the appeal. by personal delivery during the Board’s normal business hours (8:30 a.m. to 5:00 § 1201.173 Practices and procedures of p.m.). Because of the short statutory Special Panel. time limit for processing these cases, (a) Scope. The rules in this subpart parties must file their submissions by apply to proceedings before a Special overnight Express Mail, provided by Panel. the U.S. Postal Service, if they file (b) Suspension of rules. Unless a rule their submissions by mail. is required by statute, the Chairman of (4) A submission filed by Express a Special Panel may suspend the rule, Mail is considered to have been filed on in the interest of expediting a decision the date of the Express Mail Order. A or for other good cause shown, and may submission that is delivered personally conduct the proceedings in a manner is considered to have been filed on the he or she directs. The Chairman may date the Office of the Clerk of the take this action at the request of a Board receives it. party, or on his or her own motion. (g) Briefs and responsive pleadings. If (c) Time limit for proceedings. In ac- the parties wish to submit written ar- cordance with 5 U.S.C. 7702(d)(2)(A), the gument, they may file briefs with the Special Panel will issue a decision Special Panel within 15 days after the within 45 days after a matter has been date of the Board’s certification order. certified to it. Because of the short statutory time (d) Administrative assistance to the Spe- limit for processing these cases, the cial Panel. (1) The Board and the Com- Special Panel ordinarily will not permission will provide the Panel with the mit responsive pleadings. administrative resources that the (h) Oral argument. The parties have Chairman of the Special Panel deter- the right to present oral argument. mines are reasonable and necessary. Parties wishing to exercise this right (2) Assistance will include, but is not must indicate this desire when they limited to, processing vouchers for pay file their briefs or, if no briefs are filed, and travel expenses. within 15 days after the date of the

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Board’s certification order. Upon re- Subpart F—Enforcement of Final ceiving a request for argument, the Decisions and Orders Chairman of the Special Panel will determine the time and place for argu- § 1201.181 Authority and explanation. ment and the amount of time to be allowed each side, and he or she will pro- (a) Authority. Under 5 U.S.C. vide this information to the parties. 1204(a)(2), the Board has the authority (i) Postargument submission. Because to order any Federal agency or em- of the short statutory time limit for ployee to comply with decisions and or- processing these cases, the parties may ders issued under its jurisdiction and not file postargument submissions un- the authority to enforce compliance less the Chairman of the Special Panel with its orders and decisions. The permits those submissions. Board’s decisions and orders, when appropriate, will contain a notice of the (j) Procedural matters. Any procedural matters not addressed in these regula- Board’s enforcement authority. tions will be resolved by written order (b) Requirements for parties. The par- of the Chairman of the Special Panel. ties are expected to cooperate fully (k) Electronic filing. Pleadings in mat- with each other so that compliance ters before the Special Panel may not with the Board’s orders and decisions be filed or served in electronic form. can be accomplished promptly and in accordance with the laws, rules, and [54 FR 53504, Dec. 29, 1989, as amended at 65 regulations that apply to individual FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, cases. Agencies must promptly inform 2003; 69 FR 57631, Sept. 27, 2004] an appellant of actions taken to comply and must inform the appellant § 1201.174 Enforcing the Special Panel when it believes compliance is com- decision. plete. Appellants must provide agen- The Board, upon receipt of the deci- cies with all information necessary for sion of the Special Panel, will order the compliance and should monitor the agency concerned to take any action agency’s progress towards compliance. appropriate to carry out the decision of the Panel. The Board’s regulations re- [77 FR 62371, Oct. 12, 2012] garding enforcement of a final order of the Board apply to this matter. These § 1201.182 Petition for enforcement. regulations are set out in subpart F of (a) Appellate jurisdiction. Any party this part. may petition the Board for enforcement of a final decision or order issued § 1201.175 Judicial review of cases de- under the Board’s appellate jurisdic- cided under 5 U.S.C. 7702. tion, or for enforcement of the terms of (a) Place and type of review. The ap- a settlement agreement that has been propriate United States district court entered into the record for the purpose is authorized to conduct all judicial re- of enforcement in an order or decision view of cases decided under 5 U.S.C. under the Board’s appellate jurisdic- 7702. Those cases include appeals from tion. The petition must be filed actions taken under the following pro- promptly with the regional or field of- visions: Section 717(c) of the Civil fice that issued the initial decision; a Rights Act of 1964, as amended (42 copy of it must be served on the other U.S.C. 2000e–16(c)); section 15(c) of the party or that party’s representative; Age Discrimination in Employment and it must describe specifically the Act of 1967, as amended (29 U.S.C. reasons the petitioning party believes 633a(c)); and section 15(b) of the Fair there is noncompliance. The petition Labor Standards Act of 1938, as amend- also must include the date and results ed (29 U.S.C. 216(b)). of any communications regarding com- (b) Time for filing request. Regardless pliance. Any petition for enforcement of any other provision of law, requests that is filed more than 30 days after for judicial review of all cases decided the date of service of the agency’s no- under 5 U.S.C. 7702 must be filed within tice that it has complied must contain 30 days after the appellant received no- a statement and evidence showing good tice of the judicially reviewable action. cause for the delay and a request for an

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extension of time for filing the peti- (5) A petition for enforcement under tion. paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of (b) Original jurisdiction. Any party this section must be filed promptly seeking enforcement of a final Board with the regional or field office that decision or order issued under its origi- issued the order or, if the order was nal jurisdiction or enforcement of the issued by the Board, with the Clerk of terms of settlement agreement entered the Board. The petitioner must serve a into the record for the purpose of en- copy of the petition on each party or forcement in an order or decision the party’s representative. If the peti- issued under its original jurisdiction tion is filed under paragraph (c)(1) of must file a petition for enforcement this section, the motion to intervene with the Clerk of the Board and must must be filed and served with the peti- serve a copy of that petition on the tion. other party or that party’s representa- [54 FR 53504, Dec. 29, 1989, as amended at 59 tive. The petition must describe spe- FR 65235, Dec. 19, 1994; 62 FR 48935, Sept. 18, cifically the reasons why the peti- 1997; 73 FR 6834, Feb. 6, 2008; 77 FR 62371, Oct. tioning party believes there is non- 12, 2012] compliance. (c) Petition by an employee other than § 1201.183 Procedures for processing a party. (1) Under 5 U.S.C. 1204(e)(2)(B), petitions for enforcement. any employee who is aggrieved by the (a) Initial Processing. (1) When a party failure of any other employee to com- has filed a petition for enforcement of ply with an order of the Board may pe- a final decision, the alleged noncom- tition the Board for enforcement. Ex- plying party must file one of the fol- cept for a petition filed under para- lowing within 15 days of the date of graph (c)(2) or (c)(3) of this section, the service of the petition: Board will entertain a petition for en- (i) Evidence of compliance, including forcement from an aggrieved employee a narrative explanation of the calcula- who is not a party only if the employee tion of back pay and other benefits, seeks and is granted party status as a and supporting documents; permissive intervenor under § 1201.34(c) (ii) Evidence as described in para- of this part. The employee must file a graph (a)(1)(i) of this section of the motion to intervene at the time of fil- compliance actions that the party has ing the petition for enforcement. The completed, and a statement of the ac- petition for enforcement must describe tions that are in process and the ac- specifically why the petitioner believes tions that remain to be taken, along there is noncompliance and in what with a reasonable schedule for full way the petitioner is aggrieved by the compliance; or noncompliance. The motion to inter- (iii) A statement showing good cause vene will be considered in accordance for the failure to comply completely with § 1201.34(c) of this part. with the decision of the Board. (2) Under § 1201.33(c) of this part, a The party that filed the petition may nonparty witness who has obtained an respond to that submission within 10 order from a judge that his or her em- days after the date of service of the ploying agency provide the witness submission. The parties must serve with official time may petition the copies of their pleadings on each other Board for enforcement of the order. as required under § 1201.26(b)(2) of this (3) Under § 1201.37(e) of this part, a part. nonparty witness who has obtained an (2) If the agency is the alleged non- order requiring the payment of witness complying party, it shall submit the fees and travel costs may petition the name, title, grade, and address of the Board for enforcement of the order. agency official charged with complying (4) Under § 1201.55(d) of this part, a with the Board’s order, and inform nonparty witness or other individual such official in writing of the potential who has obtained a protective order sanction for noncompliance as set forth from a judge during the course of a in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even Board proceeding for protection from if the agency asserts it has fully com- harassment may petition the Board for plied. The agency must advise the enforcement of the order. Board of any change to the identity or

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location of this official during the (iii) The responses required by the pendency of any compliance pro- preceding two paragraphs may be filed ceeding. In the absence of this informa- separately or as a single pleading. tion, the Board will presume that the (7) If the agency is the party found to highest ranking appropriate agency of- be in noncompliance, it must advise ficial who is not appointed by the the Board, as part of any submission President by and with the consent of under this paragraph, of any change in the Senate is charged with compliance. the identity or location of the official (3) The judge may convene a hearing responsible for compliance previously if one is necessary to resolve matters provided pursuant to paragraph (a)(2) at issue. of this section. (4) If the judge finds that there has (8) The complying party may file evi- been compliance or a good faith effort dence and argument in response to any to take all actions required to be in submission described in paragraph compliance with the final decision, he (a)(6) of this section by filing opposing or she will state those findings in a de- evidence and argument with the Clerk cision. That decision will be subject to of the Board within 20 days of the date the procedures for petitions for review such submission is filed. by the Board under subpart C of this (9) Discovery may be undertaken in part, and subject to judicial review accordance with the Board’s regular under § 1201.120 of this part. discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless (5) If the judge finds that the alleged otherwise directed by the judge, initial noncomplying party has not taken all discovery requests must be served no actions required to be in full compli- later than 15 days after the alleged ance with the final decision, the judge noncomplying party files a response to will issue an initial decision resolving the petition for enforcement as re- all issues raised in the petition for en- quired under paragraph (a)(1) of this forcement and identifying the specific section. actions the noncomplying party must (b) Final Decision of noncompliance. If take to be in compliance with the a party found to be in noncompliance Board’s final decision. A copy of the under paragraph (a)(5) of this section initial decision will be served on the does not file a timely pleading with the responsible agency official. Clerk of the Board as required by para- (6) If an initial decision described graph (a)(6) of this section, the findings under paragraph (a)(5) of this section is of noncompliance become final and the issued, the party found to be in non- case will be processed under the en- compliance must do the following: forcement provisions of paragraph (i) To the extent that the party de- (c)(1) of this section. cides to take the actions required by (c) Consideration by the Board. (1) Fol- the initial decision, the party must lowing review of the initial decision submit to the Clerk of the Board, with- and the written submissions of the par- in the time limit for filing a petition ties, the Board will render a final deci- for review under § 1201.114(e) of this sion on the issues of compliance. Upon part, a statement that the party has finding that the agency is in non- taken the actions identified in the ini- compliance, the Board may, when ap- tial decision, along with evidence es- propriate, require the agency and the tablishing that the party has taken responsible agency official to appear those actions. The narrative statement before the Board to show why sanc- must explain in detail why the evi- tions should not be imposed under 5 dence of compliance satisfies the re- U.S.C. 1204(a)(2) and 1204(e)(2)(A). The quirements set forth in the initial deci- Board also may require the agency and sion. the responsible agency official to make (ii) To the extent that the party de- this showing in writing, or to make it cides not to take all of the actions re- both personally and in writing. The required by the initial decision, the party sponsible agency official has the right must file a petition for review under to respond in writing or to appear at the provisions of §§ 1201.114 and 1201.115 any argument concerning the with- of this part. holding of that official’s pay.

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(2) The Board’s final decision on the plied by the Board in such a way as to issues of compliance is subject to judi- affect any administrative proceeding cial review under 1201.120 of this part. pending at the effective date of such (d) Burdens of proof. If an appellant provision. ‘‘Pending’’ is considered to files a petition for enforcement seeking encompass existing agency pro- compliance with a Board order, the ceedings, and appeals before the Board agency generally has the burden to or its predecessor agencies, that were prove its compliance with the Board subject to judicial review or under ju- order by a preponderance of the evi- dicial review on January 11, 1979, the dence. However, if any party files a pe- date on which the Act became effec- tition for enforcement seeking compli- tive. An agency proceeding is consid- ance with the terms of a settlement ered to exist once the employee has re- agreement, that party has the burden ceived notice of the proposed action. of proving the other party’s breach of (3) Explanation. Mr. X was advised of the settlement agreement by a prepon- agency’s intention to remove him for derance of the evidence. abandonment of position, effective De- (e) Certification to the Comptroller Gen- cember 29, 1978. Twenty days later Mr. eral. When appropriate, the Board may X appealed the agency action to the certify to the Comptroller General of Merit Systems Protection Board. The the United States, under 5 U.S.C. Merit Systems Protection Board dock- 1204(e)(2)(A), that no payment is to be eted Mr. X’s appeal as an ‘‘old system made to a certain Federal employee. case,’’ i.e., one to which the savings This order may apply to any Federal clause applied. The appropriate re- employee, other than a Presidential ap- gional office processed the case, apply- pointee subject to confirmation by the ing the substantive laws, rules and reg- Senate, who is found to be in non- ulations in existence prior to the en- compliance with the Board’s order. actment of the Act. The decision, dated (f) Effect of Special Counsel’s action or February 28, 1979, informed Mr. X that failure to act. Failure by the Special he is entitled to judicial review if he Counsel to file a complaint under 5 files a timely notice of appeal in the U.S.C. 1215(a)(1)(C) and subpart D of appropriate United States district this part will not preclude the Board court or the United States Court of from taking action under this subpart. Claims under the statute of limitations [54 FR 53504, Dec. 29, 1989, as amended at 63 applicable when the adverse action was FR 41179, Aug. 3, 1998; 77 FR 62372, Oct. 12, taken. 2012; 80 FR 21153, Apr. 17, 2015; 80 FR 66788, (b) Whistleblower Protection Act of 1989 Oct. 30, 2015] (Pub. L. 101–12)—(1) Scope. All orders, rules, and regulations issued by the Subpart G—Savings Provisions Board and the Special Counsel before the effective date of the Whistleblower § 1201.191 Savings provisions. Protection Act of 1989 shall continue in (a) Civil Service Reform Act of 1978 effect, according to their terms, until (Pub.L. 95–454)—(1) Scope. All executive modified, terminated, superseded, or orders, rules and regulations relating repealed by the Board or the Special to the Federal service that were in ef- Counsel, as appropriate. fect prior to the effective date of the (2) Administrative proceedings and ap- Civil Service Reform Act shall con- peals therefrom. No provision of the tinue in effect and be applied by the Whistleblower Protection Act of 1989 Board in its adjudications until modi- shall be applied by the Board in such a fied, terminated, superseded, or re- way as to affect any administrative pealed by the President, Office of Per- proceeding pending at the effective sonnel Management, the Merit Sys- date of such provision. ‘‘Pending’’ is tems Protection Board, the Equal Em- considered to encompass existing agen- ployment Opportunity Commission, or cy proceedings, including personnel ac- the Federal Labor Relations Authority, tions that were proposed, threatened, as appropriate. or taken before July 9, 1989, the effec- (2) Administrative proceedings and ap- tive date of the Whistleblower Protec- peals therefrom. No provision of the tion Act of 1989, and appeals before the Civil Service Reform Act shall be ap- Board or its predecessor agencies that

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were subject to judicial review on that Protection Enhancement Act of 2012 (5 date. An agency proceeding is consid- U.S.C. 1221(g)) also authorizes an award ered to exist once the employee has re- of compensatory damages in cases ceived notice of the proposed action. where the Board orders corrective action. Compensatory damages include Subpart H—Attorney Fees (Plus pecuniary losses, future pecuniary Costs, Expert Witness Fees, losses, and nonpecuniary losses, such and Litigation Expenses, as emotional pain, suffering, inconvenience, mental anguish, and loss of en- Where Applicable) and Dam- joyment of life. ages (Consequential, Liq- (e) An award equal to back pay shall uidated, and Compensatory) be awarded as liquidated damages under 5 U.S.C. 3330c when the Board or SOURCE: 63 FR 41179, Aug. 3, 1998, unless a court determines an agency willfully otherwise noted. violated an appellant’s veterans’ preference rights. § 1201.201 Statement of purpose. (a) This subpart governs Board pro- [63 FR 41179, Aug. 3, 1998, as amended at 77 FR 62372, Oct. 12, 2012; 78 FR 39545, July 2, ceedings for awards of attorney fees 2013] (plus costs, expert witness fees, and litigation expenses, where applicable), § 1201.202 Authority for awards. consequential damages, compensatory damages, and liquidated damages. (a) Awards of attorney fees (plus costs, (b) There are seven statutory provi- expert witness fees, and litigation ex- sions covering attorney fee awards. Be- penses, where applicable). The Board is cause most MSPB cases are appeals authorized by various statutes to order under 5 U.S.C. 7701, most requests for payment of attorney fees and, where attorney fees will be governed by applicable, costs, expert witness fees, § 1201.202(a)(1). There are, however, and litigation expenses. These statu- other attorney fee provisions that tory authorities include, but are not apply only to specific kinds of cases. limited to, the following authorities to For example, § 1201.202(a)(4) applies order payment of: only to certain whistleblower appeals. (1) Attorney fees, as authorized by 5 Sections 1201.202(a)(5) and (a)(6) apply U.S.C. 7701(g)(1), where the appellant or only to corrective and disciplinary ac- respondent is the prevailing party in tion cases brought by the Special an appeal under 5 U.S.C. 7701 or an Counsel. Section 1201.202(a)(7) applies agency action against an administra- only to appeals brought under the Uni- tive law judge under 5 U.S.C. 7521, and formed Services Employment and Re- an award is warranted in the interest employment Rights Act. of justice; (c) An award of consequential dam- (2) Attorney fees, as authorized by 5 ages is authorized in only two situa- U.S.C. 7701(g)(2), where the appellant or tions: Where the Board orders correc- respondent is the prevailing party in tive action in a whistleblower appeal an appeal under 5 U.S.C. 7701, a request under 5 U.S.C. 1221, and where the to review an arbitration decision under Board orders corrective action in a 5 U.S.C. 7121(d), or an agency action Special Counsel complaint under 5 against an administrative law judge U.S.C. 1214. Consequential damages in- under 5 U.S.C. 7521, and the decision is clude such items as medical costs and based on a finding of discrimination travel expenses, and other costs as de- prohibited under 5 U.S.C. 2302(b)(1); termined by the Board through case (3) Attorney fees and costs, as au- law. thorized by 5 U.S.C. 1221(g)(2), where (d) The Civil Rights Act of 1991 (42 the appellant is the prevailing party in U.S.C. 1981a) authorizes an award of an appeal under 5 U.S.C. 7701 and the compensatory damages to a prevailing Board’s decision is based on a finding party who is found to have been inten- of a prohibited personnel practice; tionally discriminated against based on (4) Attorney fees and costs, as au- race, color, religion, sex, national ori- thorized by 5 U.S.C. 1221(g)(1)(B), where gin, or disability. The Whistleblower the Board orders corrective action in a

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whistleblower appeal to which 5 U.S.C. tion to correct a prohibited personnel 1221 applies; practice and determines that the em- (5) Attorney fees, as authorized by 5 ployee has been subjected to an agency U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1), investigation that was commenced, ex- where the Board orders corrective ac- panded, or extended in retaliation for tion in a Special Counsel complaint the disclosure or protected activity under 5 U.S.C. 1214; that formed the basis of the corrective (6) Attorney fees, costs and damages action. as authorized by 5 U.S.C. 1214(h) where (c) Awards of compensatory damages. the Board orders corrective action in a The Board may order payment of com- Special Counsel complaint under 5 pensatory damages, as authorized by U.S.C. 1214 and determines that the section 102 of the Civil Rights Act of employee has been subjected to an agency investigation that was com- 1991 (42 U.S.C. 1981a), based on a finding menced, expanded or extended in retal- of unlawful intentional discrimination iation for the disclosure or protected but not on an employment practice activity that formed the basis of the that is unlawful because of its dis- corrective action. parate impact under the Civil Rights (7) Attorney fees, as authorized by 5 Act of 1964, the Rehabilitation Act of U.S.C. 1204(m), where the respondent is 1973, or the Americans with Disabilities the prevailing party in a Special Coun- Act of 1990. The Whistleblower Protec- sel complaint for disciplinary action tion Enhancement Act of 2012 (5 U.S.C. under 5 U.S.C. 1215; 1221(g)) also authorizes an award of (8) Attorney fees, expert witness fees, compensatory damages in cases where and litigation expenses, as authorized the Board orders corrective action. by the Uniformed Services Employ- Compensatory damages include pecu- ment and Reemployment Rights Act, niary losses, future pecuniary losses, 38 U.S.C. 4324(c)(4); and and nonpecuniary losses such as emo- (9) Attorney fees, expert witness fees, tional pain, suffering, inconvenience, and other litigation expenses, as au- mental anguish, and loss of enjoyment thorized by the Veterans Employment of life. Opportunities Act; 5 U.S.C. 3330c(b). (d) Awards of liquidated damages. The (b) Awards of consequential damages. Board may award an amount equal to The Board may order payment of con- back pay as liquidated damages under 5 sequential damages, including medical U.S.C. 3330c when it determines that an costs incurred, travel expenses, and any other reasonable and foreseeable agency willfully violated an appellant’s consequential damages: veterans’ preference rights. (1) As authorized by 5 U.S.C. (e) Definitions. For purposes of this 1221(g)(1)(A)(ii), where the Board orders subpart: corrective action in a whistleblower (1) A proceeding on the merits is a pro- appeal to which 5 U.S.C. 1221 applies; ceeding to decide an appeal of an agen- and cy action under 5 U.S.C. 1221 or 7701, an (2) As authorized by 5 U.S.C. appeal under 38 U.S.C. 4324, an appeal 1221(g)(4) where the Board orders cor- under 5 U.S.C. 3330a, a request to re- rective action to correct a prohibited view an arbitration decision under 5 personnel practice and determines that U.S.C. 7121(d), a Special Counsel com- the employee has been subjected to an plaint under 5 U.S.C. 1214 or 1215, or an agency investigation that was com- agency action against an administra- menced, expanded, or extended in re- tive law judge under 5 U.S.C. 7521. taliation for the disclosure or pro- (2) An addendum proceeding is a protected activity that formed the basis of ceeding conducted after issuance of a the corrective action. final decision in a proceeding on the (3) As authorized by 5 U.S.C. merits, including a decision accepting 1214(g)(2), where the Board orders cor- the parties’ settlement of the case. The rective action in a Special Counsel complaint under 5 U.S.C. 1214. final decision in the proceeding on the (4) As authorized by 5 U.S.C. 1214(h) merits may be an initial decision of a where the Board orders corrective ac- judge that has become final under

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§ 1201.113 of this part or a final decision the time limit established by the of the Board. judge. (f) Hearing; applicability of subpart B. [63 FR 41179, Aug. 3, 1998, as amended at 65 The judge may hold a hearing on a mo- FR 5409, Feb. 4, 2000; 77 FR 62373, Oct. 12, 2012; 78 FR 39546, July 2, 2013] tion for attorney fees and may apply appropriate provisions of subpart B of § 1201.203 Proceedings for attorney this part to the addendum proceeding. fees. (g) Initial decision; review by the Board. The judge will issue an initial (a) Form and content of request. A re- decision in the addendum proceeding, quest for attorney fees must be made which shall be subject to the provisions by motion, must state why the appel- for a petition for review by the Board lant or respondent believes he or she is under subpart C of this part. entitled to an award under the applicable statutory standard, and must be [63 FR 41179, Aug. 3, 1998, as amended at 65 supported by evidence substantiating FR 24381, Apr. 26, 2000] the amount of the request. Evidence supporting a motion for attorney fees § 1201.204 Proceedings for consequential, liquidated, or compensatory must include at a minimum: damages. (1) Accurate and current time records; (a) Time for making request. (1) A request for consequential, liquidated, or (2) A copy of the terms of the fee compensatory damages must be made agreement (if any); during the proceeding on the merits, no (3) A statement of the attorney’s cus- later than the end of the conference(s) tomary billing rate for similar work, held to define the issues in the case. with evidence that that rate is con- (2) The judge or the Board, as appli- sistent with the prevailing community cable, may waive the time limit for rate for similar services in the commu- making a request for consequential, nity in which the attorney ordinarily liquidated, or compensatory damages practices; and for good cause shown. The time limit (4) An established attorney-client re- will not be waived if a party shows that lationship. such waiver would result in undue prej- (b) Addendum proceeding. A request udice. for attorney fees will be decided in an (b) Form and content of request. A re- addendum proceeding. quest for consequential, liquidated, or (c) Place of filing. Where the initial compensatory damages must be made decision in the proceeding on the mer- in writing and must state the amount its was issued by a judge in a MSPB re- of damages sought and the reasons why gional or field office, a motion for at- the appellant or respondent believes he torney fees must be filed with the re- or she is entitled to an award under the gional or field office that issued the applicable statutory standard. initial decision. Where the decision in (c) Service. A copy of a request for the proceeding on the merits was an consequential, liquidated, or compen- initial decision issued by a judge at the satory damages must be served on the Board’s headquarters or where the only other parties or their representatives decision was a final decision issued by when the request is made. the Board, a motion for attorney fees A party may file a pleading respond- must be filed with the Clerk of the ing to the request within the time Board. limit established by the judge or the (d) Time of filing. A motion for attor- Board, as applicable. ney fees must be filed as soon as pos- (d) Addendum proceeding. (1) A re- sible after a final decision of the Board quest for consequential, liquidated, or but no later than 60 days after the date compensatory damages will be decided on which a decision becomes final. in an addendum proceeding. (e) Service. A copy of a motion for at- (2) A judge may waive the require- torney fees must be served on the other ment of paragraph (d)(1), either on his parties or their representatives at the or her own motion or on the motion of time of filing. A party may file a plead- a party, and consider a request for ing responding to the motion within damages in a proceeding on the merits

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where the judge determines that such decision under 5 U.S.C. 7121(d), the action is in the interest of the parties Board may: and will promote efficiency and econ- (1) Consider both the merits and the omy in adjudication. request for damages and issue a final (e) Initiation of addendum proceeding. decision; (1) A motion for initiation of an adden- (2) Remand the case to the judge for dum proceeding to decide a request for a new initial decision, either on the re- consequential, liquidated, or compen- quest for damages only or on both the satory damages must be filed as soon merits and the request for damages; or as possible after a final decision of the (3) Where there has been no prior pro- Board but no later than 60 days after ceeding before a judge, forward the re- the date on which a decision becomes quest for damages to a judge for hear- final. Where the initial decision in the ing and a recommendation to the proceeding on the merits was issued by Board, after which the Board will issue a judge in a MSPB regional or field of- a final decision on both the merits and fice, the motion must be filed with the the request for damages. regional or field office that issued the (i) EEOC review of decision on compen- initial decision. Where the decision in satory damages. A final decision of the the proceeding on the merits was an Board on a request for compensatory initial decision issued by a judge at the damages pursuant to the Civil Rights Board’s headquarters or where the only Act of 1991 shall be subject to review by decision was a final decision issued by the Equal Employment Opportunity the Board, the motion must be filed Commission as provided under subpart with the Clerk of the Board. E of this part. (2) A copy of a motion for initiation [63 FR 41179, Aug. 3, 1998, as amended at 77 of an addendum proceeding to decide a FR 62373, Oct. 12, 2012] request for consequential, liquidated, or compensatory damages must be § 1201.205 Judicial review. served on the other parties or their A final Board decision under this sub- representatives at the time of filing. A part is subject to judicial review as party may file a pleading responding to provided under 5 U.S.C. 7703. the motion within the time limit established by the judge. APPENDIX I TO PART 1201 [RESERVED] (f) Hearing; applicability of subpart B. The judge may hold a hearing on a re- APPENDIX II TO PART 1201—APPRO- quest for consequential, liquidated, or PRIATE REGIONAL OR FIELD OFFICE compensatory damages and may apply FOR FILING APPEALS appropriate provisions of subpart B of this part to the addendum proceeding. All submissions shall be addressed to the Regional Director, if submitted to a regional (g) Initial decision; review by the office, or the Chief Administrative Judge, if Board. The judge will issue an initial submitted to a field office, Merit Systems decision in the addendum proceeding, Protection Board, at the addresses listed which shall be subject to the provisions below, according to geographic region of the for a petition for review by the Board employing agency or as required by § 1201.4(d) under subpart C of this part. of this part. The facsimile numbers listed (h) Request for damages first made in below are TDD-capable; however, calls will be answered by voice before being connected proceeding before the Board. Where a re- to the TDD. Address of Appropriate Regional quest for consequential, liquidated, or or Field Office and Area Served: compensatory damages is first made on 1. Atlanta Regional Office, 401 West Peach- petition for review of a judge’s initial tree Street, NW., 10th floor, Atlanta, Georgia decision on the merits and the Board 30308–3519, Facsimile No.: (404) 730–2767, (Ala- waives the time limit for making the bama; Florida; Georgia; Mississippi; South request in accordance with paragraph Carolina; and Tennessee). (a)(2) of this section, or where the re- 2. Central Regional Office, 230 South Dear- born Street, 31st floor, Chicago, Illinois quest is made in a case where the only 60604–1669, Facsimile No.: (312) 886–4231, (Illi- MSPB proceeding is before the Board, nois; Indiana; Iowa; Kansas City, Kansas; including, for compensatory damages Kentucky; Michigan; Minnesota; Missouri; only, a request to review an arbitration Ohio; and Wisconsin).

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3. Northeastern Regional Office, 1601 Mar- § 1202.1 Designating Chairman of Stat- ket Street, Suite 1700, Philadelphia, PA utory Review Board. 19103, Facsimile No.: (215) 597–3456, (Con- necticut; Delaware; Maine; Maryland—ex- At the written request of the Depart- cept the counties of Montgomery and Prince ment of Transportation, the Chairman George’s; Massachusetts; New Hampshire; of the Board will designate a presiding New Jersey—except the counties of Bergen, official of the Board to serve as the Essex, Hudson, and Union; Pennsylvania; Chairman of any Board of Review es- Rhode Island; Vermont; and West Virginia). tablished by the Secretary of Transpor- 3a. New York Field Office, 26 Federal tation under 5 U.S.C. 3383(b) to review Plaza, Room 3137–A, New York, New York certain actions to remove air traffic 10278–0022, Facsimile No.: (212) 264–1417, (New Jersey—counties of Bergen, Essex, Hudson, controllers. and Union; New York; Puerto Rico; and Vir- [54 FR 28658, July 6, 1989] gin Islands). 4. Washington Regional Office, 1901 S. Bell Street, Arlington, Virginia 22202, Facsimile PART 1203—PROCEDURES FOR RE- No.: (703) 756–7112, (Maryland—counties of VIEW OF RULES AND REGULA- Montgomery and Prince George’s; North TIONS OF THE OFFICE OF PER- Carolina; Virginia; Washington, DC; and all SONNEL MANAGEMENT overseas areas not otherwise covered). 5. Western Regional Office, 1301 Clay GENERAL Street, Suite 1380N, Oakland, California 94612–5217, Facsimile No.: (510) 273–7136, Sec. (Alaska; California; Hawaii; Idaho; Nevada; 1203.1 Scope; application of part 1201, sub- Oregon; Washington; and Pacific overseas part B. areas). 1203.2 Definitions. 5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228– PROCEDURES FOR REVIEW 2211, Facsimile No.: (303) 969–5109, (Arizona; 1203.11 Request for regulation review. Colorado; Kansas—except Kansas City; Mon- 1203.12 Granting or denying the request for tana; Nebraska; New Mexico; North Dakota; regulation review. South Dakota; Utah; and Wyoming). 1203.13 Filing pleadings. 6. Dallas Regional Office, 1100 Commerce 1203.14 Serving documents. Street, Room 620, Dallas, Texas 75242–9979, 1203.15 Review of regulations on the Board’s Facsimile No.: (214) 767–0102, (Arkansas; Lou- own motion. isiana; Oklahoma; and Texas). 1203.16 Proceedings.

[69 FR 11503, Mar. 11, 2004, as amended at 69 ORDER OF THE BOARD FR 61991, Oct. 22, 2004; 72 FR 40215, July 24, 1203.21 Final order of the Board. 2007; 73 FR 2143, Jan. 14, 2008; 78 FR 43971, 1203.22 Enforcement of order. July 23, 2013; 82 FR 47083, Oct. 11, 2017] AUTHORITY: 5 U.S.C. 1204(a), 1204(f), and APPENDIX III TO PART 1201 [RESERVED] 1204(h). SOURCE: 54 FR 23632, June 2, 1989, unless APPENDIX IV TO PART 1201—SAMPLE otherwise noted. DECLARATION UNDER 28 U.S.C.1746 GENERAL Declaration I, lllllllllll, do hereby declare: § 1203.1 Scope; application of part I declare under penalty of perjury under 1201, subpart B. the laws of the United States of America (a) General. This part applies to the that the foregoing is true and correct. Board’s review, under 5 U.S.C. 1204(a)(4) Executed on and 1204(f), of any rules or regulations llllllllllllllllllllllll (‘‘regulations’’) issued by the Office of Date Personnel Management (OPM). It ap- llllllllllllllllllllllll plies to the Board’s review of the way Signature in which an agency implements regulations, as well as to its review of the va- PART 1202—STATUTORY REVIEW lidity of the regulations on their face. (b) Application of 5 CFR part 1201, sub- BOARD parts B and C. (1) Where appropriate, and unless the Board’s regulations pro- AUTHORITY: 5 U.S.C. 1204. vide otherwise, the Board may apply

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