This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

48449

Vol. 62, No. 179

Tuesday, September 16, 1997

MERIT SYSTEMS PROTECTION

BOARD

5 CFR Part 1201

Practices and Procedures

AGENCY: Merit Systems Protection

Board.

ACTION: Interim rule; request for

comments.

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 email 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, §§ 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 §§ 1201.129 and

1201.135) have been replaced by new

provisions in §§ 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 §§ 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

§ 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
48450 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations

(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

§ 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 §§ 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 §§ 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 §§ 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

§ 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 §§ 1201.124 and 1201.139.

(h) The provision on contents of a

Special Counsel disciplinary action

complaint, § 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

§ 1201.123(a)(4)) has been deleted as no

longer necessary. A corresponding

revision has been made in § 1201.126 to

delete the provisions regarding

discipline the Board can impose under

the Federal Employees Flexible and

Compressed Work Schedule Act

(formerly at § 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

§ 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 § 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

§§ 1201.125, 1201.131, and 1201.140.

These provisions replace the procedure

in the former § 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 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
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48451

(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

§ 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

§ 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 §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.

§ 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

§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.

§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
48452 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations

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.

§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

§§ 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.

§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 §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.

§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

§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
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48453

party or the party’s representative one

copy of each of its pleadings, as defined

by §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.

§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

§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.

§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

§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.

§1201.131 Judge.

(a) The Board will assign a corrective

action complaint brought by the Special

Counsel to a judge, as defined at

§ 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

§§ 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.

§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).

§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

§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 §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
48454 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations

facsimile, by commercial overnight

delivery, or by personal delivery to each

party or the party’s representative, as

shown on the certificate of service.

§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.

§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

§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 §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.

§1201.138 Contents of complaint.

A complaint filed under this section

must describe with particularity the

facts that support the proposed agency

action.

§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.

§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
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48455

applicable provisions of §§ 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.

§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.

§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 § 1201.137

apply. Such complaints shall be

adjudicated in the same manner as

agency complaints under this subpart.

Removal From the Senior Executive

Service

§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 §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.

§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 §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.

§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 §1201.143(a) of this part.

The removal action will not be delayed

as a result of the hearing.

Requests for Protective Orders

§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

§1201.4(a) of this part, to rule on the

motion.

§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 §1201.55(d) of this part.

§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