§ 1201.183 - Procedures for processing petitions for enforcement.

§ 1201.183 Procedures for processing petitions for enforcement.

Cross Reference

Link to an amendment published at 89 FR 72964, Sept. 9, 2024.

(a) Initial Processingprocessing of a petition for enforcement.

(1) When a party has filed a petition for enforcement of a final decision or order of the Board, or enforcement of a settlement agreement that has been entered into the Board's record for purposes of enforcement, the alleged noncomplying party must file one of the following within 15 days of the date of service of the petition:

(i) Evidence of compliance, including a narrative explanation of the calculation of back pay and other benefits, and supporting documents;

(ii) Evidence as described in paragraph (a)(1)(i) of this section of the compliance actions that the party has completed, and and/or a statement of the compliance actions that are in process and the actions that /or remain to be taken, along with a reasonable schedule for accomplishing full compliance within a reasonable period; or

(iii) A statement showing good cause for the failure to comply completely with the final decision or order of the Board, or with the terms of an applicable settlement agreement.

(2) The party that filed the petition may respond to

that

the alleged noncomplying party's submission within 10 days after the date of service of the submission. The parties must serve copies of their pleadings on each other as required under § 1201.26(b)(2)

of this part.

(2.

(3) If a party files a petition for enforcement seeking compliance with a final Board decision or order, the alleged noncomplying party generally has the burden of proving its compliance by a preponderance of the evidence. However, if any party files a petition for enforcement seeking compliance with the terms of a settlement agreement that has been entered into the Board's record for purposes of enforcement, that party has the burden of proving the other party's breach of the settlement agreement by a preponderance of the evidence.

(4) If the agency is the alleged noncomplying party, it shall submit the name, title, grade, and address of the agency official charged with complying with the Board's final decision or order, and inform such official in writing of the potential sanction for noncompliance as set forth in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts that it is has fully complied. The agency must further submit a current initial contact email address that is regularly checked to ensure receipt of all information regarding the allegations of compliance. The agency must advise the Board of any subsequent change to the identity and/or location of

this

the designated agency official during the pendency of any compliance proceeding. In the absence of this information, the Board will presume that the highest-ranking

appropriate

agency official who is not appointed by the President by and with the consent of the Senate, is charged with compliance.

(

3)

5) Discovery may be pursued in accordance with the procedures set forth at §§ 1201.71 through 1201.75, except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement.

(6) The judge may convene a hearing

if one is necessary

to resolve

matters at issue

compliance issues.

(

4

7) If the judge finds that

there has been compliance or a good faith effort to take all actions required to be in compliance

the alleged noncomplying party has fully complied with the final Board decision or order at issue, or with the applicable settlement agreement entered into the Board's record for purposes of enforcement, he or she will

state those findings in a decision

issue an initial decision to that effect. That decision will be subject to the procedures for petitions for review by the Board under subpart C of this part, and subject to judicial review under § 1201.120

of this part

.

(

5

8) If the judge finds that the alleged noncomplying party has not

taken all actions required to be in full compliance

complied, in whole or in part, with the final Board decision or order at issue,

the judge

or with the applicable settlement agreement entered into the Board's record for purposes of enforcement, he or she will issue an initial decision

resolving all issues raised in the petition for enforcement and identifying

:

(i) Directing the noncomplying party to take the specific actions

the noncomplying party must take to be in compliance with the Board's final decision. A copy of the initial decision

required by the final Board decision or order at issue, or required under the applicable settlement agreement entered into the Board's record for purposes of enforcement; or

(ii) Upon the request of the party seeking compliance where the judge finds a material breach, rescinding the applicable settlement agreement and reinstating the underlying matter on appeal.

(9) An initial decision issued under paragraph (a)(8) of this section will be subject to the procedures for petitions for review by the Board under subpart C of this part, but not subject to judicial review under § 1201.120.

(10) A copy of an initial decision finding full or partial noncompliance with a final Board decision or order, or a settlement agreement that has been entered into the Board's record for purposes of enforcement will be served on the

responsible

designated agency official.

(

6)

b) Processing after a finding of noncompliance that directs specific action.

(1) If an initial decision described under paragraph (a)(

5

8)(i) of this section is issued, the noncomplying party

found to be in noncompliance

must do the following:

(i) To the extent that the noncomplying party

decides

agrees to take some or all of the actions required by the initial decision, the party must

submit to the Clerk of the Board

, within the time limit for filing a petition for review under § 1201.114(e)

of this part,

, provide the Clerk of the Board with a statement of compliance certifying that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions. The narrative statement must explain in detail why the evidence of compliance satisfies the requirements set forth in the initial decision. The party seeking compliance may file evidence and argument in response to any statement of compliance within 20 days of the date of service of the statement of compliance.

(ii) To the extent that the noncomplying party

decides not

declines to take some or all of the actions required by the initial decision, the party must file a petition for review under the provisions of §§ 1201.114 and 1201.115

of this part

.

(iii)

The responses required by the preceding two paragraphs

A statement of compliance and a petition for review, as described in the two preceding paragraphs, may be filed separately or as part of a single pleading.

(

7) If the agency is the party found to be in noncompliance, it must advise the Board, as part of any submission under this paragraph, of any change in the identity or location of the official responsible for compliance previously provided pursuant to paragraph

2) If an initial decision described under paragraph (a)(

2) of this section.(

8)

The complying party may file evidence and argument in response to any submission described in paragraph (a)(6) of this section by filing opposing evidence and argument with the Clerk of the Board within 20 days of the date such submission is filed.

(9) Discovery may be undertaken in accordance with the Board's regular discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement as required under paragraph (a)(1) of this section.

(b) Final Decision of noncompliance. If a party found to be in noncompliance under paragraph (a)(5) of this section does not file a timely pleading with the Clerk of the Board as required by paragraph (a)(6) of this section, the findings of noncompliance become final and the case will be processed under the enforcement provisions of paragraph (c)(1) of this section

(i) of this section is issued, the party seeking compliance may also file a petition for review of an initial decision's finding of partial compliance with the Board's final decision or order, or with an applicable settlement agreement entered into the Board's record for purposes of enforcement.

(c) Consideration by the Board.

(1) Following review of the initial decision and the written submissions of the parties, the Board will render a final decision on the issues of compliance. Upon finding that the agency is in noncompliance, the Board may, when appropriate, require the agency and the responsible agency official to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and the responsible agency official to make this showing in writing, or to make it both personally and in writing. The responsible agency official has the right to respond in writing or to appear at any argument concerning the withholding of that official's pay.

(2) The Board's final decision on the issues of compliance is subject to judicial review under 1201.120 of this part.

(d) Burdens of proof. If an appellant files a petition for enforcement seeking compliance with a Board order, the agency generally has the burden to prove its compliance with the Board order by a preponderance of the evidence. However, if any party files a petition for enforcement seeking compliance with the terms of a settlement agreement, that party has the burden of proving the other party's breach of the settlement agreement by a preponderance of the evidence.

(e) Certification to the Comptroller General. When appropriate, the Board may certify to the Comptroller General of the United States, under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain Federal employee. This order may apply to any Federal employee, other than a Presidential appointee subject to confirmation by the Senate, who is found to be in noncompliance with the Board's order.

(f) Effect of Special Counsel's action or failure to act. Failure by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and subpart D of this part will not preclude the Board from taking action under this subpart.

(g) Requests for attorney fees. A request for attorney fees related to a petition for enforcement will be governed by § 1201.203 and must be made no later than 60 days after issuance of the Board's final decision issued under § 1201.183(c)(1).

[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998; 77 FR 62372, Oct. 12, 2012; 80 FR 21153, Apr. 17, 2015; 80 FR 66788, Oct. 30, 2015; 89 FR 72964, Sept. 9. 2024]