[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1201]
[Page 32-40]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
PART 1201--PRACTICES AND PROCEDURES--Table of Contents
Subpart D--Procedures for Original Jurisdiction Cases
Source: 62 FR 48451, Sept. 16, 1997, unless otherwise noted.
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.
(c) The provisions of this subpart do not apply to appeals alleging
non-compliance with the provisions of chapter 43 of title 38 of the
United States Code relating to the employment or reemployment rights or
benefits to which a person is entitled after service in the uniformed
services, in which the Special Counsel appears as the designated
representative of the appellant. Such appeals are governed by part 1208
of this title.
[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997;
65 FR 5409, Feb. 4, 2000]
[[Page 33]]
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 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.
[[Page 34]]
(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 or, if the filing party shows that
the recommended decision was received more than 5 days after the date of
service, within 30 days after the date the filing party received 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.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]
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
[[Page 35]]
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 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
[[Page 36]]
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 under this subpart 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.
[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]
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).
[[Page 37]]
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. The Board may delegate to a member of the
Board the authority to rule on any matter related to a stay that has
been granted to the Special Counsel, including a motion for extension or
termination of the 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 facsimile, by
commercial overnight delivery, or by personal delivery to each party or
the party's representative, as shown on the certificate of service.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]
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. Any request for an extension of a stay under
5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no
later than 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 received by the Board no later than 8 days before the
expiration date of the stay.
(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.
[[Page 38]]
(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.
[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]
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;
[[Page 39]]
(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 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
[[Page 40]]
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.
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