§ 1201.116 - Compliance with orders for interim relief.

§ 1201.116 Compliance with orders for interim relief.

Cross Reference

Link to an amendment published at 89 FR 72963, Sept. 9, 2024.

(a) Certification of compliance.

(1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition

or cross petition

for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by

providing

:

(i) Providing the required interim relief

or by satisfying

; or

(ii) Satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(

b) Challenge to certification. If the appellant challenges the agency's certification of compliance with the interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant may respond to the agency's submission of evidence within 10 days after the date of service of the submission.(c

2) Evidence of its compliance must accompany its petition for review. Failure by an agency to provide the certification and evidence required by this section with its petition for review may result in the dismissal of the agency's petition for review.

(b) Allegation of noncompliance in petition

or cross petition

for review. If an appellant or an intervenor files a petition

or cross petition

for review of an initial decision ordering interim relief and such petition includes a challenge to the agency's compliance with the interim relief order,

upon order of

the

Board the

agency must submit evidence within 25 days of the date of service that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(d

The agency's evidence may be provided with any response to the petition for review or in a separate pleading.

(c) Request for dismissal for noncompliance with interim relief order. If the agency files a petition

or cross petition

for review and the appellant believes the agency has not provided

the

required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition, or within 25 days of the date upon which the appellant becomes aware that the agency has not provided, or has ceased to provide, interim relief. A copy of the

response

request must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit.

(e) Effect of failure to show compliance with interim relief order.

Failure by an agency to provide the certification required by paragraph (a) of this section with its petition

or cross petition

for review, or to provide evidence of compliance in response to a Board order

in accordance with paragraphs (b)

,

(c), or (d) of this section,

may result in the dismissal of the agency's petition

or cross petition

for review.

(

f

d) Back pay and attorney fees. Nothing in this section shall be construed to require any payment of back pay for the period preceding the date of the judge's initial decision or attorney fees before the decision of the Board becomes final.

(g) Allegations of noncompliance after a final decision is issued. If the initial decision granted the appellant interim relief, but the appellant is not the prevailing party in the final Board order disposing of a petition for review, and the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under 1201.182 of this part. The appellant must file this petition within 20 days of learning of the agency's failure to provide full interim relief. If the appellant prevails in the final Board order disposing of a petition for review, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under 1201.183 of this part.

[77 FR 62369, Oct. 12, 2012[89 FR 72963, Sept. 9, 2024]