[Federal Register Volume 62, Number 179 (Tuesday, September 16, 1997)]
[Rules and Regulations]
[Pages 48449-48455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24440]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 /
Rules and Regulations
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MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1201
Practices and Procedures
AGENCY: Merit Systems Protection Board.
ACTION: Interim rule; request for comments.
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SUMMARY: The Merit Systems Protection Board is amending its rules of
practice and procedure for original jurisdiction cases to permit
assignment of certain of these cases to a judge other than the
Administrative Law Judge, to provide for delegation of authority to the
Administrative Law Judge to decide Special Counsel stay requests, and
to provide for judges to issue initial decisions, rather than
recommended decisions, in Special Counsel complaints (including alleged
violations of the Hatch Act) and proposed actions against
administrative law judges. Certain other changes are made to reorganize
and update the rules governing adjudication of original jurisdiction
cases for the benefit of the Board's customers. These changes are the
result of a recommendation made by the Board's Reinventing Government
II (REGO II) Task Force and a review by the Board of its delegations of
authority to decide original jurisdiction cases. They are intended to
streamline the Board's adjudicatory procedures so that it can manage
its original jurisdiction caseload more efficiently and effectively.
DATES: Effective date September 16, 1997. Submit written comments on or
before November 17, 1997.
ADDRESSES: Send comments to Robert E. Taylor, Clerk of the Board, Merit
Systems Protection Board, 1120 Vermont Avenue, NW, Washington, DC
20419. Comments may be sent via e-mail to mspb@mspb.gov.
FOR FURTHER INFORMATION CONTACT: Robert E. Taylor, Clerk of the Board,
(202) 653-7200.
SUPPLEMENTARY INFORMATION: In response to the second phase of the
Administration's Reinventing Government initiative (REGO II), the
Chairman of the Merit Systems Protection Board appointed a REGO II Task
Force to review all Board operations and to make recommendations for
changes in organization, functions, and procedures that would enable
the agency to continue performing its functions effectively at the
reduced budget and staffing levels expected through fiscal year 2000.
One recommendation of the Task Force with respect to the Board's
adjudicatory function, subsequently approved by the Board, was that the
regulations for original jurisdiction cases be amended to permit the
issuance of an initial decision in Special Counsel complaints and
proposed actions against administrative law judges, subject to a
petition for review of the initial decision by the Board.
The Board also reviewed its delegations of authority to decide
original jurisdiction cases and determined that it should have the
flexibility to assign to any of its judges those cases that are not
required by law to be heard by an administrative law judge. In addition
to making these changes, which are intended to enable the Board to
manage its caseload more efficiently and effectively, the Board is
taking this opportunity to reorganize and update its original
jurisdiction regulations for the benefit of its customers.
This amendment to 5 CFR part 1201 revises the Board's procedures
for the adjudication of original jurisdiction cases set forth in
subpart D. The following are the principal changes:
(a) Subpart D has been reorganized so that, following an
introductory section, there are separate, self-contained provisions
setting forth the procedures for each kind of original jurisdiction
case covered by the subpart. The introductory section, 1201.121, sets
forth the jurisdictional scope of subpart D and the applicability of
other subparts of part 1201. The procedures for each kind of original
jurisdiction case then are set forth in the following sections:
1201.122 through 1201.127 for Special Counsel disciplinary action
complaints (including Hatch Act cases), 1201.128 through 1201.133 for
Special Counsel corrective action complaints, 1201.134 through 1201.136
for Special Counsel stay requests, 1201.137 through 1201.142 for
actions against administrative law judges, and 1201.143 through
1201.145 for informal hearings in proposed removals of career
appointees from the Senior Executive Service for performance reasons.
For each kind of case, the sections have been rearranged to follow the
chronology of a case as it proceeds through filing of the complaint or
request, answer, adjudication, decision, and review (if any). The
provisions on protective orders are moved to the end of the subpart,
Secs. 1201.146 through 1201.148, and are revised to clarify that
protective orders may be issued in connection with any pending original
jurisdiction proceeding, as well as during the course of an
investigation by the Special Counsel.
(b) The provisions on assignment of cases to an administrative law
judge for hearing (formerly in Secs. 1201.129 and 1201.135) have been
replaced by new provisions in Secs. 1201.125 and 1201.140 stating that
Special Counsel disciplinary action complaints (including Hatch Act
cases) and proposed agency actions against administrative law judges
will be heard by an administrative law judge. Because a hearing before
an administrative law judge is required by law in these kinds of cases
(see 5 U.S.C. 1215(a)(2)(C) and 5 U.S.C. 554(a)(2)), all such cases
will continue to be assigned to the Board's Administrative Law Judge at
headquarters. New provisions have been added at Secs. 1201.131 and
1201.144 to provide the Board flexibility to assign Special Counsel
corrective action complaints and Senior Executive Service performance-
based removal cases to any of its judges, as defined at Sec. 1201.4(a).
That section defines ``judge'' as: ``Any person authorized by the Board
to hold a hearing or to decide a case without a hearing, including an
attorney-examiner, an administrative judge, an administrative law
judge, the Board, or any member of the Board.'' Under these new
provisions, therefore, a Special Counsel corrective action complaint or
a Senior Executive Service performance-based removal case can be
assigned to a judge in one of the Board's regional or field offices or
to a judge
[[Page 48450]]
(including an administrative law judge) at the Board's headquarters.
(c) The provisions for Special Counsel requests for stays of
personnel actions have been revised to provide that any member of the
Board may delegate to an administrative law judge the authority to
decide an initial stay request. See Sec. 1201.134.
(d) The provisions on filing Special Counsel corrective action
complaints and Senior Executive Service performance-based removal cases
have been revised to require that subsequent pleadings be filed with
the office where the judge to whom the case is assigned is located. See
Secs. 1201.128 and 1201.143. When a case is assigned to a judge in a
regional or field office, an acknowledgment order will be issued
directing that subsequent pleadings be filed with the office where the
judge is located.
(e) The provisions on filing original jurisdiction cases have been
revised to require that telephone and facsimile numbers, as well as
names and addresses, be provided on a certificate of service. See
Secs. 1201.122, 1201.128,
1201.134, 1201.137, and 1201.143.
(f) The provisions on serving copies of initial complaints and
requests in original jurisdiction cases have been revised to require
that service be accomplished by the filer--the Special Counsel, the
agency proposing an action against an administrative law judge, or the
career appointee in the Senior Executive Service who is requesting an
informal hearing. See Secs. 1201.122, 1201.128, 1201.134, 1201.137, and
1201.143. Previously, service in original jurisdiction cases was
accomplished by the Clerk of the Board (see former Sec. 1201.122(b)).
The provisions on serving copies of subsequent pleadings are unchanged.
(g) New provisions have been added to require the Clerk of the
Board to furnish a copy of the applicable Board regulations to each
respondent (other than a Federal, State, or local government agency)
named in a Special Counsel disciplinary action complaint or a proposed
agency action against an administrative law judge. Furthermore, the
Clerk must advise each respondent of his or her procedural rights and
the Board's requirements regarding the time limit for filing a response
to the complaint and the content of the response. See Secs. 1201.124
and 1201.139.
(h) The provision on contents of a Special Counsel disciplinary
action complaint, Sec. 1201.123, has been revised to describe more
specifically the prohibited conduct and violations of law that can form
the basis for a disciplinary action complaint, and to eliminate an
obsolete provision. As revised, the provision states that a
disciplinary action may be brought against an employee alleged to have
committed a prohibited personnel practice, to have committed a
violation described in 5 U.S.C. 1216, to have violated the Hatch Act
prohibitions applicable to State and local government employees under 5
U.S.C. 1505, or to have knowingly and willfully refused or failed to
comply with an order of the Board. The reference to the Federal
Employees Flexible and Compressed Work Schedule Act (formerly at
Sec. 1201.123(a)(4)) has been deleted as no longer necessary. A
corresponding revision has been made in Sec. 1201.126 to delete the
provisions regarding discipline the Board can impose under the Federal
Employees Flexible and Compressed Work Schedule Act (formerly at
Sec. 1201.126(e)).
(i) A new provision has been added that provides any person on
whose behalf the Special Counsel brings a corrective action complaint
the right to request intervention in the Board proceeding under the
provisions of Sec. 1201.34. The current language regarding the right of
any person alleged to have been the subject of any prohibited personnel
practice alleged in the complaint to make written comments is revised
to clarify that this right applies regardless of whether such a person
requests and is granted intervenor status. The current language
regarding the rights of the Special Counsel, the agency involved, and
the Office of Personnel Management to provide oral or written comments
is unchanged. See Sec. 1201.130.
(j) New provisions have been added permitting judges to issue
initial decisions in Special Counsel corrective action complaints,
Special Counsel disciplinary action complaints (with one exception,
described in paragraph (k) below), and proposed agency actions against
administrative law judges. Such initial decisions will be subject to a
petition for review by the Board. See Secs. 1201.125, 1201.131, and
1201.140. These provisions replace the procedure in the former
Sec. 1201.129, which provided for an administrative law judge to issue
a recommended decision, subject to exceptions and a final decision by
the Board.
(k) In a Hatch Act case involving a Federal or District of Columbia
government employee, where an administrative law judge determines that
removal of the employee is not warranted, he or she is without
statutory authority to order a lesser penalty. The statute provides
that the Board may impose a lesser penalty of not less than a 30-day
suspension only if the Board finds ``by unanimous vote'' that the
violation does not warrant removal. 5 U.S.C. 7325. Therefore, the
regulations provide at Sec. 1201.125(c) that in such a case, the
administrative law judge will issue a recommended decision, subject to
exceptions and a final decision by the Board. The procedures applying
in this instance are the same as those under the former Sec. 1201.129.
(l) A new provision has been added to state the statutory right (at
5 U.S.C. 1508) for an aggrieved party to obtain judicial review of a
Board decision in a Hatch Act case involving a State or local
government employee. See Sec. 1201.127(b).
(m) In the provisions governing extension of a Special Counsel stay
that has been granted, a new requirement has been added that the
Special Counsel file any request for extension, along with its
supporting brief, at least 15 days before the expiration date of the
stay. A time limit of 10 days from the date of filing of the Special
Counsel's brief is established for the filing of any agency response.
See Sec. 1201.136(b). These changes are intended to ensure that there
is sufficient time to decide a request for extension of a stay before
the expiration date of the stay.
(n) In the provisions governing extension of a Special Counsel stay
that has been granted, the requirement that the Special Counsel provide
periodic reports during the pendency of the stay (formerly at
Sec. 1201.127(c)(3)) has been deleted. In its place has been added a
requirement, reflecting current Board practice, that the agency ordered
to stay a personnel action provide evidence of compliance with the stay
order within five working days of the date of the order. See
Sec. 1201.136(c).
(o) A new section has been added to the provisions on ``Actions
Against Administrative Law Judges'' to cover the situation in which a
complaint is filed by an administrative law judge rather than an
agency. In this situation, the administrative law judge may allege that
the employing agency has interfered with the judge's qualified
decisional independence so as to constitute a constructive removal or
other action under 5 U.S.C. 7521 that has not been authorized by the
Board. See Sec. 1201.142.
The revised procedures in subpart D will be applied to original
jurisdiction cases that are: (1) Pending on the effective date of this
interim rule, except for cases pending before the Board on a
recommended decision of an administrative law judge; (2) remanded by
the Board to a judge on or after the effective date of this interim
rule; and
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(3) filed on or after the effective date of this interim rule.
The Board is publishing this rule as an interim rule pursuant to 5
U.S.C. 1204(h).
List of Subjects in 5 CFR Part 1201
Administrative practice and procedure, Civil rights, Government
employees.
Accordingly, the Board amends 5 CFR part 1201 as follows:
PART 1201--[AMENDED]
1. The authority citation for part 1201 continues to read as
follows:
Authority: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 4331, unless
otherwise noted.
2. Subpart D is revised to read as follows:
Subpart D--Procedures for Original Jurisdiction Cases
GENERAL
Sec.
1201.121 Scope of jurisdiction; application of subparts B, F, and
H.
Special Counsel Disciplinary Actions
1201.122 Filing complaint; serving documents on parties.
1201.123 Contents of complaint.
1201.124 Rights; answer to complaint.
1201.125 Administrative law judge.
1201.126 Final decisions.
1201.127 Judicial review.
Special Counsel Corrective Actions
1201.128 Filing complaint; serving documents on parties.
1201.129 Contents of complaint.
1201.130 Rights; answer to complaint.
1201.131 Judge.
1201.132 Final decisions.
1201.133 Judicial review.
Special Counsel Requests for Stays
1201.134 Deciding official; filing stay request; serving documents
on parties.
1201.135 Contents of stay request.
1201.136 Action on stay request.
Actions Against Administrative Law Judges
1201.137 Covered actions; filing complaint; serving documents on
parties.
1201.138 Contents of complaint.
1201.139 Rights; answer to complaint.
1201.140 Judge; requirement for finding of good cause.
1201.141 Judicial review.
1201.142 Actions filed by administrative law judges.
Removal From the Senior Executive Service
1201.143 Right to hearing; filing complaint; serving documents on
parties.
1201.144 Hearing procedures; referring the record.
1201.145 No appeal.
Requests for Protective Orders
1201.146 Requests for protective orders by the Special Counsel.
1201.147 Requests for protective orders by persons other than the
Special Counsel.
1201.148 Enforcement of protective orders.
Subpart D--Procedures for Original Jurisdiction Cases
General
Sec. 1201.121 Scope of jurisdiction; application of subparts B, F, and
H.
(a) Scope. The Board has original jurisdiction over complaints
filed by the Special Counsel seeking corrective or disciplinary action
(including complaints alleging a violation of the Hatch Political
Activities Act), requests by the Special Counsel for stays of certain
personnel actions, proposed agency actions against administrative law
judges, and removals of career appointees from the Senior Executive
Service for performance reasons.
(b) Application of subparts B, F, and H. (1) Except as otherwise
expressly provided by this subpart, the regulations in subpart B of
this part applicable to appellate case processing also apply to
original jurisdiction cases processed under this subpart.
(2) Subpart F of this part applies to enforcement proceedings in
connection with Special Counsel complaints and stay requests, and
agency actions against administrative law judges, decided under this
subpart.
(3) Subpart H of this part applies to requests for attorney fees or
compensatory damages in connection with Special Counsel corrective and
disciplinary action complaints, and agency actions against
administrative law judges, decided under this subpart. Subpart H of
this part also applies to requests for consequential damages in
connection with Special Counsel corrective action complaints decided
under this subpart.
Special Counsel Disciplinary Actions
Sec. 1201.122 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking
disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint
alleging a violation of the Hatch Political Activities Act) must be
filed with the Clerk of the Board.
(b) Initial filing and service. The Special Counsel must file two
copies of the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing each party or
the party's representative. The certificate of service must show the
last known address, telephone number, and facsimile number of each
party or representative. The Special Counsel must serve a copy of the
complaint on each party or the party's representative, as shown on the
certificate of service.
(c) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(d) Method of filing and service. Filing may be by mail, by
facsimile, by commercial overnight delivery, or by personal delivery to
the Clerk of the Board. Service may be by mail, by facsimile, by
commercial overnight delivery, or by personal delivery to each party or
the party's representative, as shown on the certificate of service.
Sec. 1201.123 Contents of complaint.
(a) If the Special Counsel determines that the Board should take
any of the actions listed below, he or she must file a written
complaint in accordance with Sec. 1201.122 of this part, stating with
particularity any alleged violations of law or regulation, along with
the supporting facts.
(1) Action to discipline an employee alleged to have committed a
prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
(2) Action to discipline an employee alleged to have violated any
law, rule, or regulation, or to have engaged in prohibited conduct,
within the jurisdiction of the Special Counsel under 5 U.S.C. 1216
(including an alleged violation by a Federal or District of Columbia
government employee involving political activity prohibited under 5
U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);
(3) Action to discipline a State or local government employee for
an alleged violation involving prohibited political activity, 5 U.S.C.
1505; or
(4) Action to discipline an employee for an alleged knowing and
willful refusal or failure to comply with an order of the Board, 5
U.S.C. 1215(a)(1)(C).
(b) The administrative law judge to whom the complaint is assigned
may order the Special Counsel and the responding party to file briefs,
memoranda, or both in any disciplinary action complaint the Special
Counsel brings before the Board.
Sec. 1201.124 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board
shall furnish a copy of the applicable Board
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regulations to each party that is not a Federal, State, or local
government agency and shall inform such a party of the party's rights
under paragraph (b) of this section and the requirements regarding the
timeliness and content of an answer to the Special Counsel's complaint
under paragraphs (c) and (d), respectively, of this section.
(b) Rights. When the Special Counsel files a complaint proposing a
disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the
employee has the right:
(1) To file an answer, supported by affidavits and documentary
evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date,
in which the administrative law judge states the reasons for his or her
decision; and
(5) To a copy of the administrative law judge's decision and
subsequent final decision by the Board, if any.
(c) Filing and default. A party named in a Special Counsel
disciplinary action complaint may file an answer with the Clerk of the
Board within 35 days of the date of service of the complaint. If a
party fails to answer, the failure may constitute waiver of the right
to contest the allegations in the complaint. Unanswered allegations may
be considered admitted and may form the basis of the administrative law
judge's decision.
(d) Content. An answer must contain a specific denial, admission,
or explanation of each fact alleged in the complaint. If the respondent
has no knowledge of a fact, he or she must say so. The respondent may
include statements of fact and appropriate documentation to support
each denial or defense. Allegations that are unanswered or admitted in
the answer may be considered true.
Sec. 1201.125 Administrative law judge.
(a) An administrative law judge will hear a disciplinary action
complaint brought by the Special Counsel.
(b) Except as provided in paragraph (c)(1) of this section, the
administrative law judge will issue an initial decision on the
complaint pursuant to 5 U.S.C. 557. The applicable provisions of
Secs. 1201.111, 1201.112, and 1201.113 of this part govern the issuance
of initial decisions, the jurisdiction of the judge, and the finality
of initial decisions. The initial decision will be subject to the
procedures for a petition for review by the Board under subpart C of
this part.
(c) (1) In a Special Counsel complaint seeking disciplinary action
against a Federal or District of Columbia government employee for a
violation of 5 U.S.C. 7324, where the administrative law judge finds
that the violation does not warrant removal, the administrative law
judge will issue a recommended decision to the Board in accordance with
5 U.S.C. 557.
(2) The parties may file with the Clerk of the Board any exceptions
they may have to the recommended decision of the administrative law
judge. Those exceptions must be filed within 35 days after the date of
service of the recommended decision.
(3) The parties may file replies to exceptions within 25 days after
the date of service of the exceptions, as that date is determined by
the certificate of service.
(4) No additional evidence will be accepted with a party's
exceptions or with a reply to exceptions unless the party submitting it
shows that the evidence was not readily available before the
administrative law judge closed the record.
(5) The Board will consider the recommended decision of the
administrative law judge, together with any exceptions and replies to
exceptions filed by the parties, and will issue a final written
decision.
Sec. 1201.126 Final decisions.
(a) In any action to discipline an employee, except as provided in
paragraphs (b) or (c) of this section, the administrative law judge, or
the Board on petition for review, may order a removal, a reduction in
grade, a debarment (not to exceed five years), a suspension, a
reprimand, or an assessment of civil penalty not to exceed $1,100. 5
U.S.C. 1215(a)(3).
(b) In any action in which the administrative law judge, or the
Board on petition for review, finds under 5 U.S.C. 1505 that a State or
local government employee has violated the Hatch Political Activities
Act and that the employee's removal is warranted, the administrative
law judge, or the Board on petition for review, will issue a written
decision notifying the employing agency and the employee that the
employee must be removed and not reappointed within 18 months of the
date of the decision. If the agency fails to remove the employee, or if
it reappoints the employee within 18 months, the administrative law
judge, or the Board on petition for review, may order the Federal
entity administering loans or grants to the agency to withhold funds
from the agency as provided under 5 U.S.C. 1506.
(c) In any Hatch Act action in which the administrative law judge,
or the Board on petition for review, finds that a Federal or District
of Columbia government employee has violated 5 U.S.C. 7324 and that the
violation warrants removal, the administrative law judge, or the Board
on petition for review, will issue a written decision ordering the
employee's removal. If the administrative law judge determines that
removal is not warranted, the judge will issue a recommended decision
under Sec. 1201.125(c)(1) of this part. If the Board finds by unanimous
vote that the violation does not warrant removal, it will impose
instead a penalty of not less than 30 days suspension without pay. If
the Board finds by majority vote that the violation warrants removal,
it will order the employee's removal.
Sec. 1201.127 Judicial review.
(a) An employee subject to a final Board decision imposing
disciplinary action under 5 U.S.C. 1215 may obtain judicial review of
the decision in the United States Court of Appeals for the Federal
Circuit, except as provided under paragraph (b) of this section. 5
U.S.C. 1215(a)(4).
(b) A party aggrieved by a determination or order of the Board
under 5 U.S.C. 1505 (governing alleged violations of the Hatch
Political Activities Act by State or local government employees) may
obtain judicial review in an appropriate United States district court.
5 U.S.C. 1508.
Special Counsel Corrective Actions
Sec. 1201.128 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking corrective
action under 5 U.S.C. 1214 must be filed with the Clerk of the Board.
After the complaint has been assigned to a judge, subsequent pleadings
must be filed with the Board office where the judge is located.
(b) Initial filing and service. The Special Counsel must file two
copies of the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the
respondent agency or the agency's representative, and each person on
whose behalf the corrective action is brought. The certificate of
service must show the last known address, telephone number, and
facsimile number of the agency or its representative, and each person
on whose behalf the corrective action is brought. The Special Counsel
must serve a copy of the complaint on the agency or its representative,
and each person on whose behalf the corrective action is brought, as
shown on the certificate of service.
(c) Subsequent filings and service. Each party must serve on every
other
[[Page 48453]]
party or the party's representative one copy of each of its pleadings,
as defined by Sec. 1201.4(b). A certificate of service describing how
and when service was made must accompany each pleading. Each party is
responsible for notifying the Board and the other parties in writing of
any change in name, address, telephone number, or facsimile number of
the party or the party's representative.
(d) Method of filing and service. Filing may be by mail, by
facsimile, by commercial overnight delivery, or by personal delivery to
the office determined under paragraph (a) of this section. Service may
be by mail, by facsimile, by commercial overnight delivery, or by
personal delivery to each party or the party's representative, as shown
on the certificate of service.
Sec. 1201.129 Contents of complaint.
(a) If the Special Counsel determines that the Board should take
action to require an agency to correct a prohibited personnel practice
(or a pattern of prohibited personnel practices) under 5 U.S.C.
1214(b)(4), he or she must file a written complaint in accordance with
Sec. 1201.128 of this part, stating with particularity any alleged
violations of law or regulation, along with the supporting facts.
(b) If the Special Counsel files a corrective action with the Board
on behalf of an employee, former employee, or applicant for employment
who has sought corrective action from the Board directly under 5 U.S.C.
1214(a)(3), the Special Counsel must provide evidence that the
employee, former employee, or applicant has consented to the Special
Counsel's seeking corrective action. 5 U.S.C. 1214(a)(4).
(c) The judge to whom the complaint is assigned may order the
Special Counsel and the respondent agency to file briefs, memoranda, or
both in any corrective action complaint the Special Counsel brings
before the Board.
Sec. 1201.130 Rights; answer to complaint.
(a) Rights. (1) A person on whose behalf the Special Counsel brings
a corrective action has a right to request intervention in the
proceeding in accordance with the regulations in Sec. 1201.34 of this
part. The Clerk of the Board shall notify each such person of this
right.
(2) When the Special Counsel files a complaint seeking corrective
action, the judge to whom the complaint is assigned shall provide an
opportunity for oral or written comments by the Special Counsel, the
agency involved, and the Office of Personnel Management. 5 U.S.C.
1214(b)(3)(A).
(3) The judge to whom the complaint is assigned shall provide a
person alleged to have been the subject of any prohibited personnel
practice alleged in the complaint the opportunity to make written
comments, regardless of whether that person has requested and been
granted intervenor status. 5 U.S.C. 1214(b)(3)(B).
(b) Filing and default. An agency named as respondent in a Special
Counsel corrective action complaint may file an answer with the judge
to whom the complaint is assigned within 35 days of the date of service
of the complaint. If the agency fails to answer, the failure may
constitute waiver of the right to contest the allegations in the
complaint. Unanswered allegations may be considered admitted and may
form the basis of the judge's decision.
(c) Content. An answer must contain a specific denial, admission,
or explanation of each fact alleged in the complaint. If the respondent
agency has no knowledge of a fact, it must say so. The respondent may
include statements of fact and appropriate documentation to support
each denial or defense. Allegations that are unanswered or admitted in
the answer may be considered true.
Sec. 1201.131 Judge.
(a) The Board will assign a corrective action complaint brought by
the Special Counsel to a judge, as defined at Sec. 1201.4(a) of this
part, for hearing.
(b) The judge will issue an initial decision on the complaint
pursuant to 5 U.S.C. 557. The applicable provisions of Secs. 1201.111,
1201.112, and 1201.113 of this part govern the issuance of initial
decisions, the jurisdiction of the judge, and the finality of initial
decisions. The initial decision will be subject to the procedures for a
petition for review by the Board under subpart C of this part.
Sec. 1201.132 Final decisions.
(a) In any Special Counsel complaint seeking corrective action
based on an allegation that a prohibited personnel practice has been
committed, the judge, or the Board on petition for review, may order
appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).
(b) (1) Subject to the provisions of paragraph (b)(2) of this
section, in any case involving an alleged prohibited personnel practice
described in 5 U.S.C. 2302(b)(8), the judge, or the Board on petition
for review, will order appropriate corrective action if the Special
Counsel demonstrates that a disclosure described under 5 U.S.C.
2302(b)(8) was a contributing factor in the personnel action that was
taken or will be taken against the individual.
(2) Corrective action under paragraph (b)(1) of this section may
not be ordered if the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the
absence of such disclosure. 5 U.S.C. 1214(b)(4)(B).
Sec. 1201.133 Judicial review.
An employee, former employee, or applicant for employment who is
adversely affected by a final Board decision on a corrective action
complaint brought by the Special Counsel may obtain judicial review of
the decision in the United States Court of Appeals for the Federal
Circuit. 5 U.S.C. 1214(c).
Special Counsel Requests for Stays
Sec. 1201.134 Deciding official; filing stay request; serving
documents on parties.
(a) Request to stay personnel action. Under 5 U.S.C. 1214(b)(1),
the Special Counsel may seek to stay a personnel action if the Special
Counsel determines that there are reasonable grounds to believe that
the action was taken or will be taken as a result of a prohibited
personnel practice.
(b) Deciding official. Any member of the Board may delegate to an
administrative law judge the authority to decide a Special Counsel
request for an initial stay.
(c) Place of filing. A Special Counsel stay request must be filed
with the Clerk of the Board.
(d) Initial filing and service. The Special Counsel must file two
copies of the request, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the
respondent agency or the agency's representative. The certificate of
service must show the last known address, telephone number, and
facsimile number of the agency or its representative. The Special
Counsel must serve a copy of the request on the agency or its
representative, as shown on the certificate of service.
(e) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(f) Method of filing and service. Filing may be by mail, by
facsimile, by commercial overnight delivery, or by personal delivery to
the Clerk of the Board. Service may be by mail, by
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facsimile, by commercial overnight delivery, or by personal delivery to
each party or the party's representative, as shown on the certificate
of service.
Sec. 1201.135 Contents of stay request.
The Special Counsel, or that official's representative, must sign
each stay request, and must include the following information in the
request:
(a) The names of the parties;
(b) The agency and officials involved;
(c) The nature of the action to be stayed;
(d) A concise statement of facts justifying the charge that the
personnel action was or will be the result of a prohibited personnel
practice; and
(e) The laws or regulations that were violated, or that will be
violated if the stay is not issued.
Sec. 1201.136 Action on stay request.
(a) Initial stay. A Special Counsel request for an initial stay of
45 days will be granted within three working days after the filing of
the request, unless, under the facts and circumstances, the requested
stay would not be appropriate. Unless the stay is denied within the 3-
day period, it is considered granted by operation of law.
(b) Extension of stay. Upon the Special Counsel's request, a stay
granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate
period of time, but only after providing the agency with an opportunity
to comment on the request. The Special Counsel must file any request
for an extension of a stay under 5 U.S.C. 1214(b)(1)(B) at least 15
days before the expiration date of the stay. A brief describing the
facts and any relevant legal authority that should be considered must
accompany the request for extension. Any response by the agency must be
filed within 10 days of the date of service of the Special Counsel's
brief.
(c) Evidence of compliance with a stay. Within five working days
from the date of a stay order or an order extending a stay, the agency
ordered to stay a personnel action must file evidence setting forth
facts and circumstances demonstrating compliance with the order.
(d) Termination of stay. A stay may be terminated at any time,
except that a stay may not be terminated:
(1) On the motion of an agency, or on the deciding official's own
motion, without first providing notice and opportunity for oral or
written comments to the Special Counsel and the individual on whose
behalf the stay was ordered; or
(2) On the motion of the Special Counsel without first providing
notice and opportunity for oral or written comments to the individual
on whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).
(e) Additional information. At any time, where appropriate, the
Special Counsel, the agency, or both may be required to appear and
present further information or explanation regarding a request for a
stay, to file supplemental briefs or memoranda, or to supply factual
information needed to make a decision regarding a stay.
Actions Against Administrative Law Judges
Sec. 1201.137 Covered actions; filing complaint; serving documents on
parties.
(a) Covered actions. The jurisdiction of the Board under 5 U.S.C.
7521 and this subpart with respect to actions against administrative
law judges is limited to proposals by an agency to take any of the
following actions against an administrative law judge:
(1) Removal;
(2) Suspension;
(3) Reduction in grade;
(4) Reduction in pay; and
(5) Furlough of 30 days or less.
(b) Place of filing. To initiate an action against an
administrative law judge under this subpart, an agency must file a
complaint with the Clerk of the Board.
(c) Initial filing and service. The agency must file two copies of
the complaint, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing each party or
the party's representative.
The certificate of service must show the last known address,
telephone number, and facsimile number of each party or representative.
The agency must serve a copy of the complaint on each party or the
party's representative, as shown on the certificate of service.
(d) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(e) Method of filing and service. Filing may be by mail, by
facsimile, by commercial overnight delivery, or by personal delivery to
the Clerk of the Board. Service may be by mail, by facsimile, by
commercial overnight delivery, or by personal delivery to each party or
the party's representative, as shown on the certificate of service.
Sec. 1201.138 Contents of complaint.
A complaint filed under this section must describe with
particularity the facts that support the proposed agency action.
Sec. 1201.139 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board
shall furnish a copy of the applicable Board regulations to each
administrative law judge named as a respondent in the complaint and
shall inform each respondent of his or her rights under paragraph (b)
of this section and the requirements regarding the timeliness and
content of an answer to the agency's complaint under paragraphs (c) and
(d), respectively, of this section.
(b) Rights. When an agency files a complaint proposing an action
against an administrative law judge under 5 U.S.C. 7521 and this
subpart, the administrative law judge has the right:
(1) To file an answer, supported by affidavits and documentary
evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date,
in which the administrative law judge states the reasons for his or her
decision; and
(5) To a copy of the administrative law judge's decision and
subsequent final decision by the Board, if any.
(c) Filing and default. A respondent named in an agency complaint
may file an answer with the Clerk of the Board within 35 days of the
date of service of the complaint. If a respondent fails to answer, the
failure may constitute waiver of the right to contest the allegations
in the complaint. Unanswered allegations may be considered admitted and
may form the basis of the administrative law judge's decision.
(d) Content. An answer must contain a specific denial, admission,
or explanation of each fact alleged in the complaint. If the respondent
has no knowledge of a fact, he or she must say so. The respondent may
include statements of fact and appropriate documentation to support
each denial or defense. Allegations that are unanswered or admitted in
the answer may be considered true.
Sec. 1201.140 Judge; requirement for finding of good cause.
(a) Judge. (1) An administrative law judge will hear an action
brought by an employing agency under this subpart against a respondent
administrative law judge.
(2) The judge will issue an initial decision pursuant to 5 U.S.C.
557. The
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applicable provisions of Secs. 1201.111, 1201.112, and 1201.113 of this
part govern the issuance of initial decisions, the jurisdiction of the
judge, and the finality of initial decisions. The initial decision will
be subject to the procedures for a petition for review by the Board
under subpart C of this part.
(b) Requirement for finding of good cause. A decision on a proposed
agency action under this subpart against an administrative law judge
will authorize the agency to take a disciplinary action, and will
specify the penalty to be imposed, only after a finding of good cause
as required by 5 U.S.C. 7521 has been made.
Sec. 1201.141 Judicial review.
An administrative law judge subject to a final Board decision
authorizing a proposed agency action under 5 U.S.C. 7521 may obtain
judicial review of the decision in the United States Court of Appeals
for the Federal Circuit. 5 U.S.C. 7703.
Sec. 1201.142 Actions filed by administrative law judges.
An administrative law judge who alleges that an agency has
interfered with the judge's qualified decisional independence so as to
constitute an unauthorized action under 5 U.S.C. 7521 may file a
complaint with the Board under this subpart. The filing and service
requirements of Sec. 1201.137 apply. Such complaints shall be
adjudicated in the same manner as agency complaints under this subpart.
Removal From the Senior Executive Service
Sec. 1201.143 Right to hearing; filing complaint; serving documents on
parties.
(a) Right to hearing. If an agency proposes to remove a career
appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2)
and 5 CFR 359.502, and to place that employee in another civil service
position, the appointee may request an informal hearing before an
official designated by the Board. Under 5 CFR 359.502, the agency
proposing the removal must provide the appointee 30 days advance notice
and must advise the appointee of the right to request a hearing. If the
appointee files the request at least 15 days before the effective date
of the proposed removal, the request will be granted.
(b) Place of filing. A request for an informal hearing under
paragraph (a) of this section must be filed with the Clerk of the
Board. After the request has been assigned to a judge, subsequent
pleadings must be filed with the Board office where the judge is
located.
(c) Initial filing and service. The appointee must file two copies
of the request, together with numbered and tabbed exhibits or
attachments, if any, and a certificate of service listing the agency
proposing the appointee's removal or the agency's representative. The
certificate of service must show the last known address, telephone
number, and facsimile number of the agency or its representative. The
appointee must serve a copy of the request on the agency or its
representative, as shown on the certificate of service.
(d) Subsequent filings and service. Each party must serve on every
other party or the party's representative one copy of each of its
pleadings, as defined by Sec. 1201.4(b). A certificate of service
describing how and when service was made must accompany each pleading.
Each party is responsible for notifying the Board and the other parties
in writing of any change in name, address, telephone number, or
facsimile number of the party or the party's representative.
(e) Method of filing and service. Filing may be by mail, by
facsimile, by commercial overnight delivery, or by personal delivery to
the office determined under paragraph (b) of this section. Service may
be by mail, by facsimile, by commercial overnight delivery, or by
personal delivery to each party or the party's representative, as shown
on the certificate of service.
Sec. 1201.144 Hearing procedures; referring the record.
(a) The official designated to hold an informal hearing requested
by a career appointee whose removal from the Senior Executive Service
has been proposed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a
judge, as defined at Sec. 1201.4(a) of this part.
(b) The appointee, the appointee's representative, or both may
appear and present arguments in an informal hearing before the judge. A
verbatim record of the proceeding will be made. The appointee has no
other procedural rights before the judge or the Board.
(c) The judge will refer a copy of the record to the Special
Counsel, the Office of Personnel Management, and the employing agency
for whatever action may be appropriate.
Sec. 1201.145 No appeal.
There is no right under 5 U.S.C. 7703 to appeal the agency's action
or any action by the judge or the Board in cases arising under
Sec. 1201.143(a) of this part. The removal action will not be delayed
as a result of the hearing.
Requests for Protective Orders
Sec. 1201.146 Requests for protective orders by the Special Counsel.
(a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order
that may be necessary to protect a witness or other individual from
harassment during an investigation by the Special Counsel or during the
pendency of any proceeding before the Board, except that an agency,
other than the Office of the Special Counsel, may not request a
protective order with respect to an investigation by the Special
Counsel during such investigation.
(b) Any motion by the Special Counsel requesting a protective order
must include a concise statement of reasons justifying the motion,
together with any relevant documentary evidence. Where the request is
made in connection with a pending Special Counsel proceeding, the
motion must be filed as early in the proceeding as practicable.
(c) Where there is a pending Special Counsel proceeding, a Special
Counsel motion requesting a protective order must be filed with the
judge conducting the proceeding, and the judge will rule on the motion.
Where there is no pending Special Counsel proceeding, a Special Counsel
motion requesting a protective order must be filed with the Clerk of
the Board, and the Board will designate a judge, as defined at
Sec. 1201.4(a) of this part, to rule on the motion.
Sec. 1201.147 Requests for protective orders by persons other than the
Special Counsel.
Requests for protective orders by persons other than the Special
Counsel in connection with pending original jurisdiction proceedings
are governed by Sec. 1201.55(d) of this part.
Sec. 1201.148 Enforcement of protective orders.
A protective order issued by a judge or the Board under this
subpart may be enforced in the same manner as provided under subpart F
of this part for Board final decisions and orders.
Dated: September 10, 1997.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 97-24440 Filed 9-15-97; 8:45 am]
BILLING CODE 7400-01-U
