[Federal Register: July 15, 2003 (Volume 68, Number 135)]
[Proposed Rules]
[Page 41742-41751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy03-20]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 41742]]
GENERAL ACCOUNTING OFFICE
4 CFR Parts 27, 28 and 29
Personnel Appeals Board; Procedural Rules
AGENCY: General Accounting Office Personnel Appeals Board.
ACTION: Proposed rule.
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SUMMARY: The General Accounting Office Personnel Appeals Board (PAB)
has authority with respect to employment practices within the General
Accounting Office (GAO or agency), pursuant to the General Accounting
Office Personnel Act of 1980. The PAB is proposing to revise its
procedural regulations. The changes are intended to clarify the meaning
of some sections, to correct a few provisions affected by changes in
law or agency structure, and to refine certain procedures. The Board
invites public comment on the proposed regulations.
DATES: Comments must be received on or before September 15, 2003, in
order to be considered.
ADDRESSES: Comments may be mailed to: Clerk of the Board, General
Accounting Office Personnel Appeals Board, Suite 560, Union Center
Plaza II, 441 G Street NW., Washington, DC 20548. Comments may also be
submitted by facsimile transmission to 202-512-7525.
FOR FURTHER INFORMATION CONTACT: Beth Don, Executive Director, or Susan
Inzeo, Solicitor, 202-512-6137.
SUPPLEMENTARY INFORMATION: The General Accounting Office Personnel
Appeals Board is authorized by Congress, pursuant to 31 U.S.C. 751-755,
to hear and decide cases brought by GAO employees concerning various
personnel matters including adverse or performance-based actions,
claims of discrimination, alleged prohibited personnel practices, and
labor-management relations. The Board also exercises oversight
authority over equal employment opportunity at the agency, and has
authority to consider, decide, and order corrective action in labor-
management representation matters. The Board's current procedural
regulations applicable to GAO appear at 4 CFR parts 27 and 28. The
Board is proposing to revise these regulations. The changes are
intended to clarify the meaning of some sections, to correct a few
provisions affected by changes in law or agency structure, and to
streamline certain procedures. The significant proposed changes are
described below.
The Board no longer has jurisdiction over claims concerning
employment practices at the Architect of the Capitol. As a result, the
regulations in part 29 are being repealed and the part reserved. This
also necessitates a few conforming changes to the provisions in parts
27 and 28.
Highlights of Significant Changes in the Proposed Regulations
The proposed revisions contain several significant refinements to
the Board's procedures. Over the last several years, the Board has
repeatedly observed that litigants not represented by the PAB Office of
General Counsel (PAB/OGC) have been confused by such terms as the
``Right to Appeal Letter'' issued by that Office following an
investigation and the ``Petition for Review'' to be filed with the
Board. Many individuals misinterpreted the previous terminology to mean
that the Board was reviewing the investigation or conclusion of its
Office of General Counsel, or where applicable, GAO's Office of
Opportunity and Inclusiveness, rather than exercising de novo authority
to review the underlying agency action that was the subject of
investigation. For this reason, the term ``Right to Petition Letter''
has been substituted for ``Right to Appeal Letter'' and the term
``Petition'' has been substituted for ``Petition for Review.''
Similarly, the revisions clarify that an ``appeal'' before the PAB is
the stage of a Board proceeding when the full Board reviews the
decision of a single member, panel of members, or appointed
administrative judge.
Other notable proposed changes to the Board's regulations are
summarized below:
Section 27.1 (The Board): Reference to part 29 is deleted, and the
last sentence is revised to reflect the Board's role of reviewing
rather than reconsidering the action of an individual member, panel or
appointed administrative judge; reconsideration refers to the process
whereby the same decisionmaker examines whether or not to change a
decision.
Section 28.2 (Jurisdiction): The introductory language of paragraph
(a) is streamlined. Subsection (b)(3) is revised to clarify that the
Board's jurisdiction extends to determination of the appropriateness of
a unit for collective bargaining.
Section 28.3 (General definitions): Several clarifying changes are
found in the definitions section. Definitions for Clerk of the Board,
Director of EEO Oversight, and Executive Director of the Personnel
Appeals Board are new. The definition of Charge is revised to clarify
that the term applies to requests for the PAB Office of General Counsel
to investigate a matter. References to Recommended Decisions and
Exceptions are deleted, in conformity with the Board's decision to
delete section 28.86. ``Notice of Appeal'' is substituted for ``Request
for Review'' to more clearly define the process of appealing an initial
decision to the full Board. The definition of Pleading is revised to
specifically include documents pertaining to a request for appellate
review by the full Board. Workforce Restructuring Action (WRA), as
defined by GAO Order 2351.1 (January 21, 2003), is added in the
definition section and substituted throughout the regulations for
Reduction in Force (RIF).
Section 28.8 (Informal procedural advice): This provision is
revised to expand the list of persons who provide informal procedural
advice at the Board.
Section 28.11 (Filing a charge with the Office of General Counsel):
The section is revised to clarify the options as to how to file a
charge. Subsection (d)(2) is revised to state that the PAB Office of
General Counsel investigates rather than reviews actions underlying a
charge.
Section 28.12 (General Counsel procedures): ``Right to Petition
Letter'' is substituted for ``Right to Appeal Letter,'' and
``Petition'' is substituted for ``Petition for Review,'' throughout
this section. Subsection (d) is reorganized and further divided into
subdivisions (1), (2) and (3). Subsection (d)(2) is amplified to
clarify that a charging party may file a Petition with the Board in
accordance with Sec. 28.18 even if the PAB Office of General Counsel
does not find
[[Page 41743]]
reasonable grounds to proceed on behalf of the charging party.
New subsection (i) is added to explain the PAB Office of General
Counsel policy on maintaining confidentiality of documents.
Section 28.13 (Special procedure for Workforce Restructuring
Action): This provision is revised to reflect the agency's change in
terminology, replacing ``Reduction in Force'' terminology with
``Workforce Restructuring Action'' and ``Civil Rights Office'' with
``Office of Opportunity and Inclusiveness.'' In addition, the provision
is revised to clarify that the streamlined procedure, where applicable,
may also extend to individuals raising civil rights claims.
Section 28.17 (Internal petitions of Board employees): Subsection
(a)(2) is revised to designate the Board's Executive Director or
General Counsel as alternate contact persons for Board employees who
believe they have charges involving employment discrimination. The
change also reflects that the employee may seek procedural advice from
either the Board's Solicitor or its Office of General Counsel.
Subsection (a)(3) is revised to specify that the PAB General Counsel
arranges for processing of an internal complaint through the Board's
Executive Director. The language of subsections (b)(1) and (2) is
streamlined. In addition, reference to section 28.86(c) is deleted from
subsection (c)(3) because of the Board's decision to delete 28.86.
Section 28.18 (Filing a petition with the Board): In addition to
conforming changes of terminology, the revision clarifies the methods
for filing and formalizes the 4 p.m. deadline that is Board operating
practice.
Section 28.19 (Content of response by charged party): Subsection
(a)(1) is revised to require that the pleading filed in response to a
Petition clearly identify the specific allegations to which each
responsive answer refers. This provision addresses the difficulty in
understanding responses that do not contain specific references to the
Petition, particularly where the response attempts to divide an answer.
In addition, the section is reorganized to provide separately in new
subsection (a)(2) that any other defenses shall be contained in the
response. Previous subsection (a)(2) becomes (a)(3).
Section 28.21 (Amendments to petitions and motions practice):
Previous Sec. 28.21(d) (General Counsel settlements) has been
moved and redesignated as Sec. 28.12(i).
Paragraph (b) is reorganized and further divided to more clearly
delineate the specific requirements of motions practice before the
Board. Section 28.21(b)(1), which includes filing requirements for
motions practice before a single administrative judge, is revised to
make clear that filings are made with the Clerk of the Board rather
than the administrative judge. New Sec. 28.22(b)(2) specifies the
number of copies required when a matter is before the full Board. Both
subsections (b)(1) and (b)(2) specify that responses must be filed in
the same number as required for motions and within 20 days of service
of the motion. New subsection (b)(3) requires that a motion for
extension of time or other procedural motion must include a statement
concerning the other party's position on the motion. New subsection
(b)(4) states the Board operating procedure that motions or related
submissions must be filed with the Board by 4 p.m. Subsection (b)(5)
states the requirement that written motions and responses include a
proposed order. Subsection (b)(6) states the governing standard that
extensions of time will be granted for good cause only. Subsection
(b)(7) provides that the administrative judge has discretion to allow
oral argument on a motion.
New subsection (c) specifies rules and standards applicable to
motions for summary judgment. The Board believes that written, specific
procedures on such motions will provide clarification to parties about
the method for seeking, the appropriateness of, and the standard
applicable to a motion for summary judgment.
Section 28.24 (Sanctions): The introductory text of subsection (a)
and subsection (a)(2) are revised to expressly include failure to
comply with a subpoena as cause for imposing sanctions.
Section 28.42 (Discovery procedures and protective orders):
Subsection (d)(5) is revised to set the discovery period to begin with
service of notice of filing rather than with filing of a Petition. This
change is necessary because of the unpredictable time accounted for
when a Petition is filed by mail.
Section 28.46 (Motion for subpoena): Subsection (d), providing a
procedure for obtaining a subpoena where the presiding administrative
judge is not a Board member, is deleted.
Section 28.57 (Public hearings): Subsection (b) is revised to
substitute ``management representative'' for ``technical
representative.''
Section 28.61 (Burden and degree of proof): The definition of
``harmful error'' is tightened for clarity.
Sections 28.62 (Decision on the record) and 28.63 (Closing the
record): Previous Sec. 28.62 is redesignated Sec. 28.63 to allow for
a new Sec. 28.62 specifying procedures to follow when the parties
agree to forego a hearing and have the case decided on the record
submitted. This streamlined procedure will save time and financial
resources where appropriate.
Section 28.66 (Admissibility): This section is revised to expressly
incorporate privilege as a grounds for exclusion of evidence. In
addition, the revision clarifies that formal rules of evidence are not
binding but may provide guidance in Board cases.
Section 28.86 (Board procedures; recommended decisions): This
section is repealed and reserved. The Board believes the provision on
initial decisions, 28.87, including the standard for full Board review,
adequately addresses the rare instance of decisionmaking by an
administrative judge who is not a Board member. In addition, providing
a unified procedure will simplify the Board process for parties
involved in adjudication.
Section 28.87 (Board procedures; initial decisions): Subsection (a)
is revised to include reference to a decision by an administrative
judge who is not a member of the Board. Subsection (g) is revised to
clarify the standard applicable when a case is heard by the full Board.
In particular, the Board's deference to demeanor-based credibility
determinations is made explicit.
Section 28.88 (Board procedures; enforcement): The provision on
compliance is revised for clarity and streamlining of requirements. The
revision includes specific reference to those settlement agreements
over which the Board retains jurisdiction.
Section 28.89 (Attorney's fees and costs): Reference to filing fee
requests with the administrative judge who heard the case is deleted,
as this provision did not encompass a request filed after an
administrative judge has left the Board.
Section 28.97 (Class actions in EEO cases): This section is revised
to clarify the different procedures for class actions in EEO cases. The
revision explains that while there is no right to a de novo Board
hearing in these cases, either party may request an evidentiary hearing
at the Board or the Board may on its own determine that such a hearing
is needed.
Section 28.101 (Termination of Board proceedings when suit is filed
in Federal District Court): This section is revised to clarify when a
proceeding before the Board will be terminated because of a suit
pending in Federal District Court on the same cause of action.
Section 28.112 (Who may file petitions): Subsection (a)(3) is
revised to
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clarify the standard applicable when GAO files a representation
petition.
Section 28.113 (Contents of representation petitions): Subsections
(a)(7), (b), and (c) are revised to clarify the required contents of a
representation petition.
Section 28.122 (Negotiability issues): Subsection (e) is revised to
refer to Sec. 28.87 for finality provisions, because of the repeal of
Sec. 28.86.
Section 28.132 (Disciplinary proceedings): Subsection (e) is
revised by streamlining the description of the process for appealing
from a final order involving disciplinary action.
Section 28.133 (Stay proceedings): This provision is revised
substantially.
Subsection (a) is revised to clarify the conditions when an ex
parte stay request may be filed.
Subsection (b) is revised to state the purpose for which either a
further temporary stay or a permanent stay may be requested.
Subsection (c) is revised to provide for the Board or its presiding
member to require further submissions or proceedings on a stay request,
and to provide for an additional 30-day period to decide a pending
request where necessary.
Subsection (d) is revised to clarify the standard applicable to a
request for a further temporary stay under paragraph (b)(1).
Subsection (e) is revised to streamline and clarify the balancing
test applicable to a request for permanent stay pending a decision on
the merits.
Subpart K--Access to Records
New Subpart K, including Sec. Sec. 28.160 and 28.161, is added to
state the procedures governing an individual's request for information
pertaining to himself or herself and maintained in the custody of the
Personnel Appeals Board Office of General Counsel.
List of Subjects in 4 CFR Parts 27, 28 and 29
Administrative practice and procedures, Equal employment
opportunity, Government employees, Labor management relations.
For the reasons stated in the preamble, the General Accounting
Office Personnel Appeals Board proposes to amend 4 CFR Chapter I,
Subchapter B, parts 27, 28, and 29 as follows:
PART 27--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD;
ORGANIZATION
1. The authority citation for part 27 continues to read as follows:
Authority: 31 U.S.C. 753.
Sec. 27.1 [Amended]
2. Amend Sec. 27.1 as follows:
a. Remove the words ``parts 28 and 29'' in the second sentence and
add in their place ``part 28'';
b. In the third sentence, remove the word ``reconsideration'' and
add in its place the word ``review''.
3. Amend Sec. 27.3 by revising the last sentence to read as
follows:
Sec. 27.3 The General Counsel.
* * * The General Counsel, at the request of the Board, shall
investigate matters under the jurisdiction of the Board, and otherwise
assist the Board in carrying out its functions.
PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD;
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT
THE GENERAL ACCOUNTING OFFICE
4. The authority citation continues to read as follows:
Authority: 31 U.S.C. 753.
Subpart A--Purpose, General Definitions, and Jurisdiction
5. Amend Sec. 28.1 by revising paragraphs (a), (b), and (c) to
read as follows:
Sec. 28.1 Purpose and scope.
(a) The regulations in this part implement the Board's authority
with respect to employment practices within the General Accounting
Office (GAO), pursuant to the General Accounting Office Personnel Act
of 1980 (GAOPA), 31 U.S.C. 751-755.
(b) The purpose of the rules in this part is to establish the
procedures to be followed by:
(1) The GAO, in its dealings with the Board;
(2) Employees of the GAO or applicants for employment with the GAO,
or groups or organizations claiming to be affected adversely by the
operations of the GAO personnel system;
(3) Employees or organizations petitioning for protection of rights
or extension of benefits granted to them under Subchapters III and IV
of Chapter 7 of Title 31, United States Code; and
(4) The Board, in carrying out its responsibilities under
Subchapters III and IV of Chapter 7 of Title 31, United States Code.
(c) The scope of the Board's operations encompasses the
investigation and adjudication of cases arising under 31 U.S.C. 753.* *
*
* * * * *
6. Amend Sec. 28.2 by revising paragraphs (a) introductory text,
and (b)(1) and (b)(3) to read as follows:
Sec. 28.2 Jurisdiction.
(a) The Board has jurisdiction to hear and decide the following:
* * * * *
(b) * * *
(1) An officer or employee petition involving a removal, suspension
for more than 14 days, reduction in grade or pay, or furlough of not
more than 30 days;
(2) * * *
(3) The appropriateness of a unit of employees for collective
bargaining;
* * * * *
7. Revise Sec. 28.3 to read as follows:
Sec. 28.3 General definitions.
In this part--
Charge means any request filed with the PAB Office of General
Counsel to investigate any matter within the jurisdiction of the Board,
under the provisions of Subchapter IV of Chapter 7 of Title 31, United
States Code.
Charging Party means any person filing a charge with the PAB Office
of General Counsel for investigation.
Clerk of the Board means the Clerk of the Personnel Appeals Board.
Comptroller General means the Comptroller General of the United
States.
Days means calendar days.
Director of EEO Oversight means the Personnel Appeals Board
Director of EEO Oversight.
Executive Director means the Executive Director of the Personnel
Appeals Board.
GAO means the General Accounting Office.
General Counsel means the General Counsel of the Board, as provided
for under 31 U.S.C. 752.
Initial Decision means the adjudicatory statement of a case that is
issued by an administrative judge who is a member of or appointed by
the Board.
Notice of Appeal means a request filed with the full Board
appealing from an initial decision.
Person means an employee, an applicant for employment, a former
employee, a labor organization or the GAO.
Petition means any request filed with the Board for action to be
taken on matters within the jurisdiction of the Board, under the
provisions of Subchapter IV of Chapter 7 of Title 31, United States
Code.
Petitioner means any person filing a petition for Board
consideration.
Pleading means a document that initiates a cause of action before
the
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Board, responds to a cause of action, amends a cause of action,
responds to an amended cause of action, requests reconsideration of a
decision, responds to such a request, requests appellate review by the
full Board or responds to such a request.
Request for Reconsideration means a request, filed with the
administrative judge who rendered the initial decision, to reconsider
that decision in whole or part.
Solicitor means the attorney appointed by the Board to provide
advice and assistance to the Board in carrying out its adjudicatory
functions and to otherwise provide assistance as directed by the Board.
Workforce Restructuring Action (WRA) means the release of an
employee from a job group by separation, demotion, reassignment
requiring displacement, or furlough for more than 30 days when the
cause of action is lack of work, shortage of funds, insufficient
personnel ceiling, reorganization or realignment, an individual's
exercise of reemployment or reinstatement rights, correction of skills
imbalances, or reduction of high-grade supervisor or managerial
positions.
8. Amend Sec. 28.4 by adding paragraph (d) to read as follows:
Sec. 28.4 Computation of time.
* * * * *
(d) No written submission shall be accepted by the Clerk of the
Board after 4:00 p.m., Monday through Friday.
Subpart B--Procedures
9. Amend Sec. 28.8 by revising paragraph (a) to read as follows:
Sec. 28.8 Informal procedural advice.
(a) Persons may seek informal advice on all aspects of the Board's
procedures by contacting the Board's Executive Director, Director of
EEO Oversight, Solicitor, General Counsel or the Clerk of the Board.
* * * * *
10. Amend Sec. 28.10 by revising the heading and the first
sentence of paragraph (a) and paragraph (b)(1) to read as follows:
Sec. 28.10 Notice of petition rights.
(a) The GAO shall be responsible for ensuring that employees are
routinely advised of their rights to petition the Board and that
employees who are the object of an adverse or performance-based action
are, at the time of the action, adequately advised of their rights to
petition the Board.* * *
(b) * * *
(1) Time limits for filing a petition with the Board and the
address of the Board;
* * * * *
11. Amend Sec. 28.11 by revising the heading and paragraphs (c),
(d)(2) and the last sentence of paragraph (e) to read as follows:
Sec. 28.11 Filing a charge with the Office of General Counsel.
* * * * *
(c) How to file. Charges may be filed with the Office of General
Counsel by personal delivery (including commercial carrier) or by mail.
The address to be used differs for the two kinds of filing.
(1) A charge may be filed by personal delivery at the Office of
General Counsel, Personnel Appeals Board, GAO, Suite 580, Union Center
Plaza II, 820 First Street, NE., Washington, DC 20002.
(2) A charge may be filed by mail addressed to the Office of
General Counsel, Personnel Appeals Board, Suite 580, Union Center Plaza
II, 441 G Street, NW., Washington, DC 20548 or Office of General
Counsel, Personnel Appeals Board, GAO, Suite 580, Union Center Plaza
II, 820 First Street, NE., Washington, DC 20002. When filed by mail,
the postmark shall be the date of filing for all submissions to the
Office of General Counsel.
(d) * * *
(2) The names and titles of persons, if any, responsible for
actions the charging party wishes to have the Office of General Counsel
investigate;
* * * * *
(e) * * * When attorney fees are the only issue raised in a charge
to the Office of General Counsel, the General Counsel shall transmit
the charge to the Board for processing under Sec. Sec. 28.18 through
28.88 as a petition.
12. Amend Sec. 28.12 as follows:
a. Revise paragraphs (c), (d), and (g).
b. Redesignate Sec. 28.21(d) as paragraph (h) and revise
redesignated paragraph (h).
c. Add new paragraph (i).
The additions and revisions read as follows:
Sec. 28.12 General Counsel procedures.
* * * * *
(c) Following the investigation, the Office of General Counsel
shall provide the charging party with a Right to Petition Letter.
Accompanying this letter will be a statement of the General Counsel
advising the charging party of the results of the investigation. This
statement of the General Counsel is not subject to discovery and may
not be introduced into evidence before the Board.
(d)(1) If the General Counsel determines that there are reasonable
grounds to believe that the charging party's rights under Subchapters
III and IV of Chapter 7 of Title 31, United States Code, have been
violated, then the General Counsel shall represent the charging party
unless the charging party elects not to be represented by the Office of
General Counsel.
(2) If, following the investigation, the General Counsel determines
that there are not reasonable grounds to believe that the charging
party's rights under Subchapters III and IV of Chapter 7 of Title 31,
United States Code, have been violated, then the General Counsel shall
not represent the charging party. The charging party may nonetheless
file a petition with the Board in accordance with Sec. 28.18.
(3) Any charging party may represent him or herself or obtain other
representation.
* * * * *
(g) If 180 days have elapsed since the filing of the charge, and
the Office of General Counsel has not completed the investigation and
issued a Right to Petition Letter, the charging party may bring his or
her case directly to the Board by filing a petition in accordance with
Sec. 28.18. If a charging party exercises this option to file a
petition with the Board without waiting for the completion of the
investigation, the Office of General Counsel shall not represent the
charging party in proceedings before the Board. The charging party may
represent him- or herself or obtain other representation. The Office of
General Counsel shall close the investigation of the charge upon being
notified by the Clerk of the Board that the charging party has filed a
petition with the Board under this paragraph (g).
(h) Office of General Counsel settlement: Where the General Counsel
under paragraph (a) of this section transmits a settlement which has
been agreed to by the parties, the settlement agreement shall be the
final disposition of the case.
(i) Confidentiality: (1) It is the Office of General Counsel's
policy to protect against the disclosure of documents obtained during
the investigation, as a means of ensuring that Office's continuing
ability to obtain all relevant information. However, if the Office of
General Counsel files a petition with the Personnel Appeals Board on
behalf of a charging party pursuant to this section, that Office may
disclose the identity of witnesses and a synopsis of their
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expected testimony. Documents to be offered into evidence at the
hearing may be disclosed as required by the prehearing disclosure
requirements of Sec. 28.56.
(2) Unless so ordered by a court of competent jurisdiction, no
employee of the Personnel Appeals Board Office of General Counsel shall
produce or disclose any information or records acquired as part of the
performance of his/her official duties or because of his/her official
status. Before producing or disclosing such information or records
pursuant to court order, an employee shall notify the General Counsel.
13. Revise Sec. 28.13 to read as folows:
Sec. 28.13 Special procedure for Workforce Restructuring Action.
In the event of a Workforce Restructuring Action (WRA) resulting in
an individual's separation from employment, an aggrieved employee may
choose to file a petition directly with the Personnel Appeals Board,
without first filing the charge with the PAB's Office of General
Counsel pursuant to Sec. 28.11. Pursuant to Sec. 28.98, individuals
raising discrimination issues in connection with a WRA action need not
file a complaint with GAO's Office of Opportunity and Inclusiveness
before pursuing a WRA challenge alleging discrimination, either by
filing directly with the PAB or by filing a charge with the Board's
Office of General Counsel.
Hearing Procedures for Cases Before the Board--General
14. Amend Sec. 28.15 by removing the word ``appeals'' and adding
in its place the word ``petitions'' in the first sentence.
15. Amend Sec. 28.17 by revising the heading, paragraphs (a)(2)
and (a)(3), paragraphs (b)(1) and (b)(2) and paragraphs (c)(1), (c)(2),
and (c)(3) to read as follows:
Sec. 28.17 Internal petitions of Board employees.
(a) * * *
(2) When an employee of the Board believes that he or she has been
denied his or her right to equal employment opportunity, the employee
shall bring this matter to the attention of the Board's Executive
Director or General Counsel. If the matter cannot be resolved within 10
days, the Executive Director shall notify the employee of his or her
right to file an EEO complaint. The employee may consult with either
the Board's Solicitor or General Counsel and seek advice with regard to
procedural matters concerning the filing of an EEO charge. The employee
shall have 20 days from service of this notice to file an EEO charge
with the PAB Office of General Counsel. Upon receipt of an EEO charge,
the General Counsel shall arrange with the Executive Director for
processing in accordance with paragraph (b) of this section. If the EEO
allegations involve challenge to a WRA-based separation, the employee
may choose to expedite the procedures by filing a petition directly
with the Board.
(3) When an employee of the Board wishes to raise any other issue
that would be subject to the Board's jurisdiction, the employee shall
file a charge with the General Counsel and the General Counsel shall
arrange with the Executive Director for processing in accordance with
paragraph (b) of this section. If the challenged action is a WRA-based
separation from employment, the employee may choose to expedite the
procedures by filing a petition directly with the Board.
(b) * * *
(1) If agreed to by the Office of Special Counsel or the EEOC, as
appropriate, that body will appoint and detail a person from among its
attorneys to perform the functions of the General Counsel.
(2) If the Special Counsel or the EEOC does not agree to such a
procedure, an appointment of an attorney will be sought from the
Federal Mediation and Conciliation Service (FMCS).
(3) * * *
(c) * * *
(1) If agreed to by the MSPB or the EEOC, as appropriate, that body
will appoint and detail one of its administrative law judges (ALJ) or
administrative judges (AJ) to perform the Board's adjudicative
functions.
(2) If neither the MSPB nor the EEOC agrees to such a procedure, an
appointment of an arbitrator will be sought from the FMCS.
(3) In any event, whoever is so appointed shall possess all of the
powers and authority possessed by the Board in employee cases. The
decision of the administrative law judge, administrative judge or
arbitrator shall be a final decision of the Board. The procedure for
judicial review of the decision shall be the same as that described in
Sec. 28.90.
* * * * *
16. Amend Sec. 28.18 by revising paragraphs (a), (b), (c), (d),
introductory text, (e) and (f) to read as follows:
Sec. 28.18 Filing a petition with the Board.
(a) Who may file. Any person who is claiming to be affected
adversely by GAO action or inaction that is within the Board's
jurisdiction under Subchapter IV of Chapter 7 of Title 31, United
States Code, or who is alleging that GAO or a labor organization
engaged or is engaging in an unfair labor practice, may file a petition
if one of the following is met:
(1) The person has received a Right to Petition Letter from the
Board's Office of General Counsel; or
(2) At least 180 days have elapsed from the filing of the charge
with the Board's Office of General Counsel and that Office has not
issued a Right to Petition Letter; or
(3) The person was separated due to a Workforce Restructuring
Action and chooses to file a petition directly with the Board, without
first filing with the Board's Office of General Counsel, as provided in
Sec. 28.13.
(b) When to file. (1) Petitions filed pursuant to paragraph (a)(1)
of this section must be filed within 30 days after receipt by the
charging party of the Right to Petition Letter from the Board's Office
of General Counsel.
(2) Petitions filed pursuant to paragraph (a)(2) of this section
may be filed at any time after 180 days have elapsed from the filing of
the charge with the Board's Office of General Counsel, provided that
that Office has not issued a Right to Petition Letter concerning the
charge.
(3) Petitions filed pursuant to paragraph (a)(3) of this section
must be filed within 30 days after the effective date of the separation
due to a Workforce Restructuring Action.
(c) How to file. (1) A petition may be filed by hand delivery at
the office of the Board, Suite 560, Union Center Plaza II, 820 First
Street NE., Washington, DC 20002. It must be received by 4 p.m., Monday
through Friday, on the date that it is filed.
(2) A petition may be filed by mail addressed to the Personnel
Appeals Board, GAO, Suite 560, Union Center Plaza II, 441 G Street NW.,
Washington, DC 20548 or Personnel Appeals Board, GAO, Suite 560, Union
Center Plaza II, 820 First Street NE., Washington, DC 20002. When filed
by mail, the postmark shall be the date of filing for all submissions
to the Board.
(d) What to file. The petition shall include the following
information:
* * * * *
(e) Failure to raise a claim or defense. Failure to raise a claim
or defense in the petition shall not bar its submission later unless to
do so would prejudice the rights of the other parties or unduly delay
the proceedings.
(f) Non-EEO class actions. One or more persons may file a petition
as representatives of a class in any matter
[[Page 41747]]
within the Board's jurisdiction. For the purpose of determining whether
it is appropriate to treat a petition as a class action, the
administrative judge will be guided, but not controlled, by the
applicable provisions of the Federal Rules of Civil Procedure. See
Sec. 28.97 for EEO class actions.
17. Revise Sec. 28.19(a) to read as follows:
Sec. 28.19 Content of response by charged party.
(a) Within 20 days after service of a copy of a petition, the GAO
or other charged party shall file a response containing at least the
following:
(1) A statement of the position of the charged party on each
allegation set forth therein, including admissions, denials or
explanations. If the petition contains numbered paragraphs, the
responses should reference the paragraph numbers. If the petition does
not contain numbered paragraphs, the responses should quote or
otherwise clearly identify the specific allegations of the petition.
(2) Any other defenses to the petition.
(3) Designation of, and signature by, the representative authorized
to act for the charged party in the matter.
* * * * *
18. Amend Sec. 28.20 by revising the first and last sentences of
paragraph (b)(1) and the first two sentences of paragraph (b)(2) to
read as follows:
Sec. 28.20 Number of pleadings, service and response.
* * * * *
(b) Service. (1) The Board will serve copies of a petition upon the
parties to the proceeding by mail and/or by facsimile. * * * The Board
will not serve copies of any pleadings, motions, or other submissions
by the parties after the initial petition.
(2) The parties shall serve on each other one copy of all pleadings
other than the initial petition. Service shall be made by mailing, by
facsimile or by delivering personally a copy of the pleading to each
party on the service list previously provided by the Board. * * *
* * * * *
19. Revise Sec. 28.21 to read as follows:
Sec. 28.21 Amendments to petitions and motions practice.
(a) Amendments to petitions. The Board, at its discretion, may
allow amendments to a petition as long as all persons who are parties
to the proceeding have adequate notice to prepare for the new
allegations and if to do so would not prejudice the rights of the other
parties or unduly delay the proceedings.
(b) Motions practice. (1) When an action is before an
administrative judge, motions of the parties shall be filed with the
Clerk of the Board and shall be in writing except for oral motions made
during the hearing. An original and 3 copies of written motions shall
be filed with the Clerk of the Board. An original and 3 copies of
responses in opposition to written motions must be filed with the Clerk
of the Board within 20 days of service of the motion unless the
administrative judge requires a shorter time.
(2) When an action is before the full Board, an original and 7
copies of any motion shall be filed with the Clerk of the Board. An
original and 7 copies of any responses in opposition to motions must be
filed with the Clerk of the Board within 20 days of service of the
motion unless the Board requires a shorter time.
(3) A party filing a motion for extension of time, a motion for
postponement of a hearing, or any other procedural motion must first
contact the other party to determine whether there is any objection to
the motion and must state in the motion whether the other party has any
objection.
(4) No motions, responses or other submissions will be accepted for
filing by the Clerk of the Board after 4:00 p.m., Monday through
Friday. All written submissions shall be served simultaneously upon the
other parties to the proceeding. A certificate of service must be
attached showing service by mail, facsimile or personal delivery of the
submission to the other parties. Further submissions by either party
may be filed only with the approval of the administrative judge or full
Board.
(5) All written motions and responses thereto shall include a
proposed order, where applicable.
(6) Motions for extension of time will be granted only upon a
showing of good cause.
(7) Oral argument. The administrative judge may allow oral argument
on the motion at his or her discretion.
(c) Motions for summary judgment. (1) Either party may move for
summary judgment by filing a written motion no later than 14 days prior
to the commencement of the hearing or as otherwise ordered by the
administrative judge.
(2) Motions for summary judgment must be accompanied by a statement
of material facts for which there is no genuine dispute and a statement
of reasons in support of the motion. The motion may be supported by
documents, affidavits, or other evidence.
(3) Summary judgment will be granted if the pleadings, depositions,
answers to interrogatories, admissions, affidavits, if any, and other
documents show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.
(4) A party moving for summary judgment must make a showing
sufficient to establish the existence of each element essential to that
party's cause of action and for which that party bears the burden of
proof.
(5) When a party moves for summary judgment, the Board will
evaluate the motion on its own merits, resolving all reasonable
inferences against the moving party.
Sec. 28.22 [Amended]
20. Amend Sec. 28.22 by removing the words ``File recommended or''
and adding the word ``Issue'' in their place in paragraph (b)(12).
21. Amend Sec. 28.24 as follows:
a. Revise paragraph (a), introductory text, and paragraph (a)(2)
and
b. In paragraph (b), remove the words ``an appeal'' and add the
words ``a petition''.
The revision reads as follows:
Sec. 28.24 Sanctions.
* * * * *
(a) Failure to comply with an order or subpoena. When a party fails
to comply with an order or subpoena (including an order for the taking
of a deposition, for the production of evidence within the party's
control, for an admission, or for production of witnesses), the
administrative judge may:
(1) * * *
(2) Prohibit the party failing to comply with such order or
subpoena from introducing, or otherwise relying upon, evidence relating
to the information sought.
* * * * *
Parties, Practitioners and Witnesses
22. Revise the first two sentences of paragraph (a) of Sec. 28.25
to read as follows:
Sec. 28.25 Representation.
(a) All parties to a petition may be represented in any matter
relating to the petition. The parties shall designate their
representatives, if any, in the petition or responsive pleading. * * *
* * * * *
23. Amend Sec. 28.27 by revising the first two sentences of
paragraph (c) to read as follows:
Sec. 28.27 Intervenors.
* * * * *
[[Page 41748]]
(c) A motion for permission to intervene will be granted where a
determination is made by the administrative judge or the Board, where
the case is being heard en banc, that the requestor will be affected
directly by the outcome of the proceeding. Denial of a motion for
intervention may be appealed to the full Board. * * *
* * * * *
Sec. 28.28 [Amended]
24. Amend Sec. 28.28 by removing the word ``appeal'' and adding
the word ``petition'' in its place in paragraph (a).
25. Amend Sec. 28.29 by revising paragraph (a)(2) as follows:
Sec. 28.29 Consolidation or joinder.
(a) * * *
(2) Joinder may occur where one person has two or more petitions
pending and they are united for consideration. For example, a single
petitioner who has one petition pending challenging a 30-day suspension
and another petition pending challenging a subsequent dismissal might
have the cases joined.
* * * * *
Discovery
26. Amend Sec. 28.41 by removing the word ``appeal'' in the first
sentence and add in its place the word ``review'' in paragraph (b).
27. Amend Sec. 28.42 by revising the first sentence of paragraph
(d)(5) to read as follows:
Sec. 28.42 Discovery procedures and protective orders.
* * * * *
(d) * * *
(5) Discovery shall be completed by the time designated by the
administrative judge, but no later than 65 days after the service of
the notice of filing of a petition. * * *
Subpoenas
28. Amend Sec. 28.46 as follows:
a. Revise paragraph (b).
b. Remove paragraph (d).
The revision reads as follows:
Sec. 28.46 Motion for subpoena.
* * * * *
(b) Motion. (1) A motion for the issuance of a subpoena requiring
the attendance and testimony of witnesses or the production of
documents or other evidence under Sec. 28.46(a) shall be submitted to
the administrative judge at least 15 days in advance of the date
scheduled for the commencement of the hearing.
(2) If the subpoena is sought as part of the discovery process, the
motion shall be submitted to the administrative judge at least 15 days
in advance of the date set for the attendance of the witness at a
deposition or the production of documents.
* * * * *
Hearings
29. Amend Sec. 28.56 by adding a second sentence in paragraph (f)
to read as follows:
Sec. 28.56 Hearing procedures, conduct and copies of exhibits.
* * * * *
(f) * * * Multiple exhibits shall be indexed and tabbed.
* * * * *
30. Amend Sec. 28.57 by revising paragraph (b) to read as follows:
Sec. 28.57 Public hearings.
* * * * *
(b) At the hearing, the petitioner, the petitioner's
representative, GAO's legal representative, and a GAO management
representative, who is not expected to testify, each have a right to be
present. The Agency management representative shall be designated prior
to the hearing.
31. Amend Sec. 28.61 as follows:
a. In paragraph (b) introductory text, remove the word ``may'' and
add in its place the word ``shall,''
b. Revise the definition of harmful error in paragraph (d).
The revision reads as follows:
Sec. 28.61 Burden and degree of proof.
* * * * *
(d) Definitions. For purposes of this section, the following
definitions shall apply:
Harmful error means error by the agency in the application of its
procedures which, in the absence or cure of the error, might have
caused the agency to reach a conclusion different from the one reached.
* * * * *
32. Redesignate Sec. 28.62 as Sec. 28.63, and add a new Sec.
28.62 to read as follows:
Sec. 28.62 Decision on the record.
(a) The parties may agree to forego a hearing and request that the
matter be decided by the presiding administrative judge based upon the
record submitted.
(b) If the parties agree to forego a hearing under this subpart,
the record will close on the date that the administrative judge sets as
the final date for the receipt or filing of submissions of the parties.
Once the record closes, no additional evidence or argument will be
accepted unless the party seeking to submit it demonstrates that the
evidence was not available before the record closed.
(c) In matters submitted for decision on the record under this
section, the parties bear the same burdens of proof set forth in Sec.
28.61.
(d) A decision obtained under this section is a decision on the
merits of the case and is appealable as if the matter had been
adjudicated in an evidentiary hearing.
Sec. 28.63 Closing the record. [Redesignated from Sec. 28.62]
Evidence
33. Revise Sec. 28.66 to read as follows:
Sec. 28.66 Admissibility.
Evidence or testimony may be excluded from consideration by the
administrative judge if it is irrelevant, immaterial, unduly
repetitious or protected by privilege. The administrative judge is not
bound by formal evidentiary rules but may rely on the Federal Rules of
Evidence for guidance.
34. Revise Sec. 28.69 to read as follows:
Sec. 28.69 Judicial notice.
The administrative judge on his or her own motion or on motion of a
party, may take judicial notice of a fact which is not subject to
reasonable dispute because it is either: A matter of common knowledge;
or A matter capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Judicial notice
taken of any fact satisfies a party's burden of proving the fact
noticed.
Board Decisions, Attorney's Fees and Judicial Review
Sec. 28.86 [Removed and reserved]
35. Remove and reserve Sec. 28.86.
36. Amend Sec. 28.87 by revising paragraphs (a) and (b) and
paragraph (g), introductory text,to read as follows:
Sec. 28.87 Board procedures; initial decisions.
(a) When a case is heard in the first instance by a single Board
member, a panel of members, or a non-member appointed by the Board, an
initial decision shall be issued by that member, panel or individual
and served upon the parties.
(b) An aggrieved party may seek reconsideration of or may appeal
the initial decision in the following manner:
(1) Within 10 days of the service of the initial decision, such a
party may file and serve a request for reconsideration with the
administrative judge or panel rendering that decision. Filing of the
request for reconsideration shall toll the commencement of the 15 day
period for filing a notice of appeal
[[Page 41749]]
with the full Board, pending disposition of the request for
reconsideration by the administrative judge or panel. The
administrative judge or panel shall determine if a response is
required, and if so, will fix by order the time for the filing of the
response. A motion for reconsideration will not be granted without
providing an opportunity for response.
(2) Within 15 days of the service of the initial decision, such a
party may appeal to the full Board by filing and serving a notice of
appeal to the Board.
* * * * *
(g) In conducting its examination of the initial decision, the
Board may substitute its own findings of fact and conclusions of law,
but the Board generally will defer to demeanor-based credibility
determinations made in the initial decision. In determining whether
some action other than affirmance of the initial decision is required,
the Board will also consider whether:
* * * * *
37. Amend Sec. 28.88 as follows:
a. Revise paragraphs (a), (b), and (d),
b. Add paragraphs (e) and (f).
The revisions and additions read as follows:
Sec. 28.88 Board procedures; enforcement.
(a) All decisions and orders of the Board shall be complied with
promptly. Whenever a Board decision or order requires a person or party
to take any action, the Board may require such person or party to
provide the Board and all parties with a compliance report.
(b) When the Board does not receive a report of compliance in
accordance with paragraph (a) of this section, the Solicitor shall make
inquiries to determine the status of the compliance report and shall
report upon the results of the inquiry to the Board.
* * * * *
(d) Upon receipt of a non-compliance report from its Solicitor or
of a petition for enforcement of a final decision, the Board may issue
a notice to any person to show cause why there was non-compliance.
Apart from remedies available to the parties, the Board may seek
judicial enforcement of a decision or order issued pursuant to a show
cause proceeding.
(e) If the parties enter into a settlement agreement that has been
reviewed and approved by the administrative judge, the Board retains
jurisdiction to enforce the terms of such settlement agreement.
(f) Any party to a settlement agreement over which the Board
retains jurisdiction may petition the Board for enforcement of the
terms of such settlement agreement.
38. Revise Sec. 28.89 to read as follows:
Sec. 28.89 Attorney's fees and costs.
Within 20 days after service of a final decision by the Board, or
within 20 days after the date on which an initial decision becomes
final pursuant to Sec. 28.87(d), the petitioner, if he or she is the
prevailing party, may submit a request for the award of reasonable
attorney's fees and costs. GAO may file a response within 20 days after
service of the request. Motions for attorney's fees shall be filed in
accordance with Sec. 28.21 of these regulations. Rulings on attorney's
fees and costs shall be consistent with the standards set forth at 5
U.S.C. 7701(g). The decision of the administrative judge concerning
attorney's fees and costs shall be subject to review and shall become
final according to the provisions of Sec. 28.87.
Subpart D--Special Procedures; Equal Employment Opportunity (EEO)
Cases
39. Amend Sec. 28.95 by revising paragraphs (a) and (d) to read as
follows:
Sec. 28.95 Purpose and scope.
* * * * *
(a) Section 717 of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e-16), prohibiting discrimination based on race, color,
religion, sex or national origin;
* * * * *
(d) Title I of the Americans with Disabilities Act of 1990 (42
U.S.C. 12101 et seq.) and sections 501 and 505 of the Rehabilitation
Act of 1973 (29 U.S.C. 791, 794a) prohibiting discrimination on the
basis of disability; or
* * * * *
40. Amend Sec. 28.97 by revising paragraph (b), introductory text,
the first sentence of paragraph (c), paragraphs (d), and (e) to read as
follows:
Sec. 28.97 Class actions in EEO cases.
* * * * *
(b) An appeal from GAO's disposition of any EEO class complaint may
be submitted to the Board at the following times:
* * * * *
(c) In EEO class actions, employees shall not file charges with the
Board's Office of General Counsel and that Office shall not undertake
an independent investigation of a class complaint that has been filed
with GAO. * * *
(d) An appeal of a GAO disposition of an EEO class complaint shall
be decided by the Board based upon a review of the administrative
record, including any recommended findings and conclusions, developed
in the GAO class complaint process. In such cases, the Board will
employ the same standards of review set forth in Sec. 28.87.
(e) The parties to an EEO class complaint do not have a right to a
de novo evidentiary hearing before the Board. However, either the class
representative or GAO may file a motion requesting an evidentiary
hearing, rather than having the Board decide the case upon review of
the administrative record already developed by GAO. The Board, in its
discretion, may grant such motion or, upon its own review of the
administrative record, may direct that a new hearing be conducted. If
the Board orders a new evidentiary hearing, the class representative
shall file a petition on behalf of the class and the case shall be
adjudicated before an administrative judge of this Board pursuant to
the procedures applicable to an individual EEO complaint processed
under Sec. 28.98 of these regulations. For the purpose of determining
whether it is appropriate to treat a petition as a class action, the
administrative judge will be guided, but not controlled, by the
applicable provisions of the Federal Rules of Civil Procedure.
41. Amend Sec. 28.98 by revising paragraphs (d) and (e)(1) to read
as follows:
Sec. 28.98 Individual charges in EEO cases.
* * * * *
(d) Special rules for WRA based actions. An individual alleging
discrimination issues in connection with a WRA-based separation may
follow the procedures outlined above in paragraph (c) of this section
for adverse and performance based actions, or may choose instead a
third option. In accordance with the provisions of Sec. 28.13, such an
individual may challenge that action by filing directly with the PAB,
thus bypassing both the Office of Opportunity and Inclusiveness and the
Board's Office of General Counsel.
(e)(1) The charging party shall file the charge with the Board's
Office of General Counsel in accordance with Sec. 28.11. That Office
shall investigate the charge in accordance with Sec. 28.12.
* * * * *
Sec. 28.99 [Amended]
42. Amend Sec. 28.99 as follows:
a. Remove ``for review'' in the heading,
b. In paragraph (b)(1), add ``Agency'' after ``Provision for.''
43. Revise Sec. 28.101to read as follows:
[[Page 41750]]
Sec. 28.101 Termination of Board proceedings when suit is filed in
Federal District Court.
Any proceeding before the Board shall be terminated when an
employee or applicant who is alleging violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, Title I of
the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq.,
the Age Discrimination in Employment Act, 29 U.S.C. 633a, or the
Rehabilitation Act, 29 U.S.C. 791, files suit in Federal District Court
on the same cause of action pending before the Personnel Appeals Board.
44. Amend Sec. 28.112 by revising paragraph (a)(3) to read as
follows:
Sec. 28.112 Who may file petitions.
(a) * * *
(3) The GAO if it has a good faith reason to doubt that a majority
of employees in the bargaining unit wish to be represented by the labor
organization which is currently the exclusive representative of those
employees;
* * * * *
45. Amend Sec. 28.113 by revising paragraph (a)(7), the second
sentence of paragraph (b), and the first sentence of paragraph (c) to
read as follows:
Sec. 28.113 Contents of representation petitions.
(a) * * *
(7) Membership cards, dues records, or signed statements by
employees indicating their desire to support the petition of the labor
organization, or similar evidence acceptable to the Board, showing that
at least 30 percent of the employees in the proposed unit support the
representation petition.
(b) * * * Additionally, a petition under Sec. 28.112(a)(2) shall
include evidence satisfactory to the Board that at least 30 percent of
the employees in the unit support the petition to determine whether the
employees wish to continue to be represented by the labor organization
currently having bargaining rights.
(c) The contents of petitions filed under Sec. 28.112(a)(3) shall
conform to those provided in petitions under paragraph (a) of this
section except that the information required by paragraphs (a)(4) and
(a)(7) of this section need not be supplied. * * *
* * * * *
Subpart F--Special Procedures; Unfair Labor Practices
46. Amend Sec. 28.121(c) as follows:
a. Remove ``for review'' after the word ``petition'',
b. Remove the term ``14b'' and add in its place the term ``15e'',
c. Add the words ``Office of `` before the phrase ``General
Counsel''.
47. Amend Sec. 28.122 as follows:
a. Remove ``; compelling need'' from the heading,
b. In paragraph (e) remove ``Sec. Sec. 28.86-28.87'' and in its
place add ``Sec. 28.87''.
48. Amend Sec. 28.123 as follows:
a. Revise paragraph (a)(4),
b. In paragraph (c), remove the words ``Labor/Management
Relations'' and add the words ``Employment Standards'' in their place.
The revision reads as follows:
Sec. 28.123 Standards of conduct for labor organizations.
(a) * * *
(4) Fiscal integrity.
* * * * *
Subpart G--Corrective Action, Disciplinary and Stay Proceedings
Sec. 28.131 [Amended]
49. Amend paragraph (d) of Sec. 28.131 by removing the words ``for
review'' after ``petition'' and adding the words ``Board's Office of''
before the phrase ``General Counsel''.
Sec. 28.132 [Amended]
50. Amend Sec. 28.132 by removing the first sentence in paragraph
(e).
51. Amend Sec. 28.133 by revising paragraphs (a), (b), (c), (d),
and (e) to read as follows:
Sec. 28.133 Stay proceedings.
(a) Prior to the effective date of any proposed personnel action,
the Board's Office of General Counsel may request, ex parte, the
issuance of an initial stay of the proposed personnel action for a
period not to exceed 30 days if the General Counsel believes that the
proposed personnel action arises out of a prohibited personnel
practice. The request shall be in writing and shall specify the nature
of the action to be stayed and the basis for the General Counsel's
belief. The Board's Office of General Counsel shall serve a copy of the
request on the GAO. Within three business days of its filing, the
request shall be granted by the Board member designated by the Board
Chair to entertain the request unless that Board member determines that
the request either:
(1) Fails to satisfy the requirements of this paragraph or
(2) On its face, conclusively establishes that the proposed
personnel action did not arise out of an alleged prohibited personnel
practice as specified by the General Counsel.
(b) The Board's Office of General Counsel may request the issuance
of either:
(1) Further temporary stays for the purpose of allowing additional
time to pursue its investigation or
(2) A permanent stay for the purpose of staying the proposed
personnel action until a final decision is rendered.
(c) Requests for stays under paragraph (b) of this section shall be
received by both the Board and the GAO no less than 10 days before the
expiration of any stay then in effect. Any response from GAO to the
request shall be received by both the Board and the Board's Office of
General Counsel no less than three days before the expiration of any
stay then in effect. Any request for stay under this paragraph shall be
decided by the Board member who issued the prior stay under paragraph
(a) of this section, unless the Board Chair determines that it should
be decided by the Board en banc. The Board member, or Board en banc,
may require further briefing, oral argument, submission of affidavits
or other documentary evidence, or may conduct an evidentiary hearing
before rendering a decision. Any stay then in effect may be extended,
sua sponte, for a period not to exceed 30 days to enable the Board
member, or Board en banc, a reasonable opportunity to render a
decision.
(d) A temporary stay under paragraph (b)(1) of this section may be
issued if the Board member, or Board en banc, determines that under all
of the circumstances the interests of justice would be served by
providing more time for the Board's Office of General Counsel to pursue
the investigation. However, the duration of any single temporary stay
shall not exceed the amount of time reasonably necessary to acquire
sufficient information to support a request for a permanent stay in the
exercise of a high degree of diligence and, in no event, shall any
single temporary stay exceed 60 days except as provided under paragraph
(c) of this section for the purpose of allowing time to render a
decision.
(e) In determining whether a permanent stay under paragraph (b)(2)
of this section should be issued, the Board member, or Board en banc,
shall:
(1) Assess the evidence adduced by each side as to whether the
proposed personnel action arises out of an alleged prohibited personnel
practice as specified by the Board's General Counsel;
(2) Assess the nature and gravity of any harm that could inure to
each side if the request for permanent stay is either granted or
denied; and
[[Page 41751]]
(3) Balance the assessments conducted under paragraphs (e)(1) and
(2) of this section.
* * * * *
Subpart I--Ex Parte Communications
52. Amend Sec. 28.146 by revising the second sentence of paragraph
(a) to read as follows:
Sec. 28.146 Explanation and definitions.
(a) * * * The only ex parte communications that are prohibited are
those that involve the merits of the case or those that violate other
rules requiring submissions to be in writing. * * *
* * * * *
53. Add Subpart K, consisting of Sec. Sec. 28.160 and 28.161 to
read as follows:
Subpart K--Access to Records
Sec.
28.160 Request for records.
28.161 Denial of access to information--Appeals.
Subpart K--Access to Records
Sec. 28.160 Request for records.
(a) Individuals may request access to records pertaining to them
that are maintained as described in 4 CFR part 83, by addressing an
inquiry to the PAB General Counsel either by mail or by appearing in
person at the Personnel Appeals Board Office of General Counsel, 820
First Street, NE., Suite 580, Washington, DC 20002, during business
hours on a regular business day. Requests in writing should be clearly
and prominently marked ``Privacy Act Request.'' Requests for copies of
records shall be subject to duplication fees set forth in 4 CFR 83.17.
(b) Individuals making a request in person shall be required to
present satisfactory proof of identity, preferably a document bearing
the individual's photograph. Requests by mail or submitted other than
in person should contain sufficient information to enable the General
Counsel to determine with reasonable certainty that the requester and
the subject of the record are one and the same. To assist in this
process, individuals should submit their names and addresses, dates and
places of birth, social security number, and any other known
identifying information such as an agency file number or identification
number and a description of the circumstances under which the records
were compiled.
(c) Exemptions from disclosure. The Personnel Appeals Board General
Counsel and the Personnel Appeals Board, in deciding what records are
exempt from disclosure, will follow the policies set forth in 4 CFR
part 83.
Sec. 28.161 Denial of Access to Information--Appeals.
(a) If a request for access to information under Sec. 28.150 is
denied, the General Counsel shall give the requester the following
information:
(1) The General Counsel's name and business mailing address;
(2) The date of the denial;
(3) The reasons for the denial, including citation of appropriate
authorities; and
(4) The individual's right to appeal the denial as set forth in
paragraphs (b) and (c) of this section.
(b) Any individual whose request for access to records of the PAB
General Counsel has been denied in whole or part by the General Counsel
may, within 30 days of receipt of the denial, challenge that decision
by filing a written request for review of the decision with the
Personnel Appeals Board, 820 First Street, NE., Suite 560, Washington,
DC 20002.
(c) The appeal shall describe:
(1) The initial request made by the individual for access to
records;
(2) The General Counsel's decision denying the request; and
(3) The reasons why that decision should be modified by the Board.
(d) The Board, en banc, may in its discretion render a decision
based on the record, may request oral argument, or may conduct an
evidentiary hearing.
PART 29--[REMOVED AND RESERVED]
54. Remove and reserve Part 29.
Anne M. Wagner,
Chair, Personnel Appeals Board, General Accounting Office.
[FR Doc. 03-17785 Filed 7-14-03; 8:45 am]
BILLING CODE 1610-02-P