### §1405. Hearing

#### (a) Requirement for hearings to commence in Office

#### (1) Hearing required upon request

If, not later than 10 days after a hearing officer submits the report on the preliminary review of a claim under section 1402a(c) of this title, a covered employee submits a request to the Executive Director for a hearing under this section, the Executive Director shall appoint an independent hearing officer pursuant to subsection (c) to consider the claim and render a decision, and a hearing shall be commenced in the Office.

#### (2) Exceptions

Paragraph (1) does not apply with respect to the claim if—

(A) the hearing officer's report on the preliminary review of the claim under section 1402a(c) of this title includes the determination that the individual filing the claim is not a covered employee who has stated a claim for which relief may be granted under this title (as described in section 1402a(d) of this title); or

(B) the covered employee files a civil action as provided in section 1408 of this title with respect to the claim.

#### (b) Dismissal

A hearing officer may dismiss any claim that the hearing officer finds to be frivolous or that fails to state a claim upon which relief may be granted.

#### (c) Hearing officer

#### (1) Appointment

Upon the filing of a request for a hearing under subsection (a), the Executive Director shall appoint an independent hearing officer to consider the request for a hearing under subsection (a) and render a decision. No Member of the House of Representatives, Senator, officer of either the House of Representatives or the Senate, head of an employing office, member of the Board, or covered employee may be appointed to be a hearing officer. The Executive Director shall select hearing officers on a rotational or random basis from the lists developed under paragraph (2). Nothing in this section shall prevent the appointment of hearing officers as full-time employees of the Office or the selection of hearing officers on the basis of specialized expertise needed for particular matters.

#### (2) Lists

The Executive Director shall develop master lists, composed of—

(A) members of the bar of a State or the District of Columbia and retired judges of the United States courts who are experienced in adjudicating or arbitrating the kinds of personnel and other matters for which hearings may be held under this chapter, and

(B) individuals expert in technical matters relating to accessibility and usability by persons with disabilities or technical matters relating to occupational safety and health.

In developing lists, the Executive Director shall consider candidates recommended by the Federal Mediation and Conciliation Service or the Administrative Conference of the United States.

#### (3) Prohibiting hearing officer conducting preliminary review from conducting hearing

The Executive Director may not appoint a hearing officer to conduct a hearing under this section with respect to a claim if the hearing officer conducted the preliminary review with respect to the claim under section 1402a of this title.

#### (d) Hearing

Unless a claim is dismissed before a hearing, a hearing shall be—

(1) conducted in closed session on the record by the hearing officer;

(2) commenced no later than 90 days after the Executive Director receives the covered employee's request for the hearing under subsection (a), except that, upon mutual agreement of the parties or for good cause, the Office shall extend the time for commencing a hearing for not more than an additional 30 days; and

(3) conducted, except as specifically provided in this chapter and to the greatest extent practicable, in accordance with the principles and procedures set forth in sections 554 through 557 of title 5.

#### (e) Discovery

Reasonable prehearing discovery may be permitted at the discretion of the hearing officer.

#### (f) Subpoenas

#### (1) In general

At the request of a party, a hearing officer may issue subpoenas for the attendance of witnesses and for the production of correspondence, books, papers, documents, and other records. The attendance of witnesses and the production of records may be required from any place within the United States. Subpoenas shall be served in the manner provided under rule 45(b) of the Federal Rules of Civil Procedure.

#### (2) Objections

If a person refuses, on the basis of relevance, privilege, or other objection, to testify in response to a question or to produce records in connection with a proceeding before a hearing officer, the hearing officer shall rule on the objection. At the request of the witness or any party, the hearing officer shall (or on the hearing officer's own initiative, the hearing officer may) refer the ruling to the Board for review.

#### (3) Enforcement

#### (A) In general

If a person fails to comply with a subpoena, the Board may authorize the General Counsel to apply, in the name of the Office, to an appropriate United States district court for an order requiring that person to appear before the hearing officer to give testimony or produce records. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey a lawful order of the district court issued pursuant to this section may be held by such court to be a civil contempt thereof.

#### (B) Service of process

Process in an action or contempt proceeding pursuant to subparagraph (A) may be served in any judicial district in which the person refusing or failing to comply, or threatening to refuse or not to comply, resides, transacts business, or may be found, and subpoenas for witnesses who are required to attend such proceedings may run into any other district.

#### (g) Decision

The hearing officer shall issue a written decision as expeditiously as possible, but in no case more than 90 days after the conclusion of the hearing. The written decision shall be transmitted by the Office to the parties. The decision shall state the issues raised in the claim, describe the evidence in the record, contain findings of fact and conclusions of law, contain a determination of whether a violation has occurred, and order such remedies as are appropriate pursuant to subchapter II. The decision shall be entered in the records of the Office. If a decision is not appealed under section 1406 of this title to the Board, the decision shall be considered the final decision of the Office.

#### (h) Precedents

A hearing officer who conducts a hearing under this section shall be guided by judicial decisions under the laws made applicable by section 1302 of this title and by Board decisions under this chapter.

(Pub. L. 104–1, title IV, §405, Jan. 23, 1995, 109 Stat. 33; Pub. L. 115–397, title I, §103(b)–(e), Dec. 21, 2018, 132 Stat. 5304, 5305.)

#### **Editorial Notes**

#### References in Text

This chapter, referred to in subsecs. (c)(2)(A), (d)(3), and (h), was in the original "this Act", meaning Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 3 which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1301 of this title and Tables.

Rule 45(b) of the Federal Rules of Civil Procedure, referred to in subsec. (f)(1), is set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Subchapter II, referred to in subsec. (g), was in the original "title II", meaning title II of Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 7, which is classified principally to subchapter II of this chapter. For complete classification of title II to the Code, see Tables.

#### Amendments

2018—Pub. L. 115–397, §103(e)(1), struck out "Complaint and" before "Hearing" in section catchline.

Subsec. (a). Pub. L. 115–397, §103(b), amended subsec. (a) generally. Prior to amendment, subsec. (a) related to filing complaints by covered employees after completion of mediation under former section 1403 of this title.

Subsec. (c)(1). Pub. L. 115–397, §103(e)(2), which directed substitution of "request for a hearing under subsection (a)" for "complaint", was executed by making the substitution both places it appeared, to reflect the probable intent of Congress.

Subsec. (c)(3). Pub. L. 115–397, §103(c), added par. (3).

Subsec. (d). Pub. L. 115–397, §103(e)(3), substituted "claim" for "complaint" in introductory provisions.

Subsec. (d)(2). Pub. L. 115–397, §103(d), added par. (2) and struck out former par. (2) which read as follows: "commenced no later than 60 days after filing of the complaint under subsection (a), except that the Office may, for good cause, extend up to an additional 30 days the time for commencing a hearing; and".

Subsec. (g). Pub. L. 115–397, §103(e)(4), substituted "claim" for "complaint".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2018 Amendment

Amendment by Pub. L. 115–397 effective upon expiration of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title.