[Code of Federal Regulations]
[Title 4, Volume 1]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 4CFR28.133]

[Page 61-62]
 
                            TITLE 4--ACCOUNTS
 
               CHAPTER I--GOVERNMENT ACCOUNTABILITY OFFICE
 
PART 28_GOVERNMENT ACCOUNTABILITY OFFICE PERSONNEL APPEALS BOARD; PROCEDURES 
 
     Subpart G_Corrective Action, Disciplinary and Stay Proceedings
 
Sec.  28.133  Stay proceedings.

    (a) Prior to the effective date of any proposed personnel action, 
the Board's 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 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;

[[Page 62]]

    (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
    (3) Balance the assessments conducted under paragraphs (e)(1) and 
(2) of this section.
    (f) Any order issued by a member of the Board granting or denying, 
in whole or in part, a stay request under paragraph (b) shall be subject 
to review by the Board en banc on the filing and service of a notice of 
appeal, accompanied by a supporting brief, within 10 days of the service 
of that order. Responsive briefs shall be filed and served within 10 
days of service of the appeal.
    (g) A motion to vacate a stay order may be filed at any time. A stay 
order issued by the Board en banc may not be vacated by a single Board 
member.

[58 FR 61992, Nov. 23, 1993, as amended at 68 FR 69304, Dec. 12, 2003]