[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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