§ 1201.3 Appellate jurisdiction: Definition and application.

(a) Appellate jurisdiction generally. The Board has appellate jurisdiction over cases specified in the Act where there have been prior actions within an agency. This includes certain decisions of the Office of Personnel Management relating to retirement and insurance benefits. This appellate jurisdiction includes:

(1) Removal or reduction-in-grade of competitive or preference eligible employees;

(2) Denial of within-grade step increases;

(3) Actions based upon removal, suspension for more than 14 days, reduction-in-grade or pay, or furlough for 30 days or less;

(4) Certain actions relating to the Senior Executive Service;

(5) Actions otherwise appealable to the Board involving an allegation of discrimination;

(6) Determinations relating to disability retirement, health insurance and annuities;

(7) Actions involving reinstatement of preference eligibles; and

(8) Those actions for which jurisdiction may be properly granted by regulations of the Office of Personnel Management (OPM).

(b) Limitations on appellate jurisdiction, collective bargaining agreements and election of procedures. (1) Where an employee is covered by a collective bargaining agreement which provides for an exclusive negotiated grievance procedure for actions involving discrimination under 5 U.S.C. 7702, reduction in grade or adverse actions under either 5 U.S.C. 4303 or 7512, the employee may raise the matter under either the negotiated grievance procedure or under the Board's appellate procedures but not both. Other matters which are covered by a negotiated grievance procedure under 5 U.S.C. 7121 may not be appealed to the Board.

(2) Election of procedure. Where a covered employee has initially elected to utilize a nonexclusive negotiated grievance procedure, he/she may not appeal the matter to the Board. This election, however, does not prohibit an employee from requesting Board

review of a decision involving discrimination.

[44 FR 38349, June 29, 1979, as amended at 47 FR 15309, Apr. 9, 1982]

§ 1201.4 General definitions.

(a) Presiding official. Any person designated by the Board to preside over any hearing or to make a decision on the record, including an attorneyexaminer, an administrative law judge, the Board, or any of the Members of the Board.

(b) The Act. The Civil Service Reform Act of 1978 (Pub. L. 95-454). (c) Pleadings. Briefs, motions, petitions and attachments.

(d) Motions. A request to a presiding official to take a particular action.

(e) Appropriate field office. That office listed in Appendix II in the area where the appellant's duty station was located when the agency action was taken. This does not however, limit the Board from transferring the matter for adjudication to another regional office when to do so would facilitate processing.

(f) Party. An individual, agency, intervenor, the Office of Personnel Management, or the Special Counsel who is participating in an adjudication before the Board.

(g) Petition for appeal. The request filed with a Board field office for review of an agency action.

(h) Petition for review. The request filed with the three-member Board in Washington, D.C., for review of an initial decision of a presiding official. (i) Day. Calendar day.

[44 FR 38349, June 29, 1979, as amended at 46 FR 42437, Aug. 21, 1981]

Subpart B-Hearing Procedures for Appellate Cases

GENERAL

§ 1201.11 Scope and policy.

The rules in this subpart apply to appellate proceedings of the Board except as otherwise provided in § 1201.13. These rules also apply to original jurisdiction proceedings of the Board except as otherwise provided in Subpart C. It is the policy of the

The Board may revoke, amend or waive any of these regulations as they apply generally to all cases in accordance with the applicable procedures of the Administrative Procedure Act. A presiding official may waive a Board regulation in an individual case for good cause shown if application of the regulation is not required by statute.

§ 1201.13 Internal appeals of Board employees.

Appeals of actions taken against Board employees will be assigned to administrative law judges for adjudication pursuant to this subchapter, provided, however, that the policy of the Board will be to insulate such adjudications from agency involvement insofar as possible. Accordingly, initial decisions in such cases shall not be disturbed by the Board except in cases of demonstrated harmful procedural irregularity in the proceedings before the administrative law judge or clear error of law. In addition, the Board, as a matter of policy, will defer ruling on any interlocutory appeals or motions to disqualify the administrative law judge assigned to such cases until the initial decision has been issued. [47 FR 937, Jan. 8, 1982]

PETITIONS FOR REVIEW OF AGENCY
ACTION, PLEADINGS

§ 1201.21 Notice of appeal rights.

When an agency issues a decision notice to an employee on a matter appealable to the Board the agency shall provide:

(a) Notice of the time limits for appealing to the Board and the address of the appropriate Board office for filing the appeal;

(b) A copy of the Board's regulations;

(c) A copy of the appeal form contained in Appendix I; and

(d) Notice of any applicable rights to a grievance procedure.

(e) In regions offering the use of appeals arbitration, notice of the opportunity to request such procedure set forth at § 1201.200 et seq., including a description of the procedure.

[44 FR 38349, June 29, 1979, as amended at 48 FR 11400, Mar. 18, 1983]

§ 1201.22 Filing of petitions for appeal and response.

(a) Place of filing. Petitions and responses shall be filed at the appropriate Board regional office.

(b) Time of Filing. Petitions for appeal must be filed during the period beginning with the day after the effective date of the action being appealed and ending on the twentieth (20th) day after the effective date. Agency responses to petitions for appeal must be filed within 15 days after agency receipt of the appellant's petition. The date of filing shall be determined by the date of mailing indicated by the postmark date. If the filing is by personal delivery, it shall be considered filed on the date it is received in the regional office.

(c) Method of Filing. Filing must be made either by personal delivery during normal business hours to the appropriate Board regional office or by mail addressed to that office

[44 FR 38349, June 29, 1979, as amended at 46 FR 42437, Aug. 21, 1981; 47 FR 54419, Dec. 3, 1982]

§ 1201.23 Computation of time.

To compute the number of days for filing, the first day counted shall be the day after the event from which the time period begins to run and the last day of filing shall be included in the computation.

Example: If an employee receives a decision notice which is effective on June 1, the 20 days for filing starts to run on June 2. The filing must be made by June 21. If June 21 is a Saturday, the last day for filing would be Monday, June 23.

§ 1201.24 Content of petition for appeal, right to hearing.

(a) Contents. Petitions for appeal must be filed by the employee, his/her designated representative or a party

property substituted under § 1201.35. Petitions may use any format, including letter form, but must contain the following:

(1) The name of the appellant and the acting agency;

(2) The action taken by the agency and its effective date;

(3) A request for hearing if desired; (4) A statement of the reasons why the appellant believes the agency action to be wrong;

(5) A statement of the action the appellant would like the presiding officer to order;

(6) The name of the appellant's representative, if any;

(7) Attachment of any relevant documents including the decision notice;

(8) A statement as to whether the appellant or anyone acting on his/her behalf has filed a grievance or complaint with any agency regarding this matter; and

(9) Signature by the appellant and representative, if any. 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 and unduly delay the proceedings.

(10) A request that the matter be processed under the appeals arbitration procedure set forth at § 1201.200 et seq., if such procedure is available.

(b) Use of the form. Completion of the form in Appendix I shall constitute compliance with paragraph (a) of this section and § 1201.31 if a representative is designated in the form. In regions allowing the use of appeals arbitration, the amended form in Appendix I-A containing an entry for the election of voluntary arbitration and an explanation thereof will be used.

(c) Right to hearing. Under 5 U.S.C. 7701, an appellant has a right to a hearing. Alternatively, the appellant may choose to have the determination based on the record. If the parties choose to utilize appeals arbitration, the procedures for a hearing shall be in accordance with § 1201.205.

[44 FR 38349, June 29, 1979, as amended at 48 FR 11401, Mar. 18, 1983]

§ 1201.25 Content of agency response, request for hearing.

(a) Content. Agency response to petitions for appeal shall contain the following:

(1) The name of the appellant and the acting agency;

(2) A statement of the agency action taken against the appellant and the reasons therefor;

(3) A specific response to each allegation of the appellant's petition admitting, denying or explaining each in whole or in part;

(4) All documents contained in the agency record of the proceeding;

(5) Request for hearing and the reasons therefor; and

(6) A declination by the agency, if appeals arbitration has been requested by the appellant and the agency declines to use the process;

(7) Designation of and signature by the authorized agency representative. (b) Request for hearing. The agency may request a hearing on the appeal which may be granted at the discretion of the presiding official.

[44 FR 38349, June 29, 1979, as amended at 48 FR 11401, Mar. 18, 1983]

§ 1201.26 Number of pleadings, service, and response.

(a) Number. One original and one copy of a petition for appeal or petition for review must be filed with the appropriate Board office. One original of all other subsequent pleadings must be filed.

(b) Service-(1) Service by the Board. The Board will serve copies of a petition for appeal or petition for review upon the parties to the proceeding by mail. The Board will attach a service list indicating the names and addresses of the parties to the proceeding or their designated representatives.

(2) Service by the parties. The parties shall serve on each other one copy of as all pleadings, defined by § 1201.4(c), with the exception of petitions for appeal or review. Service shall be made by mailing or by delivering personally a copy of the pleading to each party on the service list previously provided by the Board. Each pleading must be accompanied by a certificate of service specifying how

and when service was made. It shall be the duty of all parties to notify the Board and one another in writing of any changes in the names or addresses on the service list.

(c) Time limitations for response to pleadings. Unless otherwise specified by the presiding official or these regulations, a party shall have 10 days from receipt to respond to a pleading served by another party.

(d) Paper size. Pleadings and attachments must be submitted on 81⁄2×11 inch paper size to comply with standards established for U.S. Courts.

[46 FR 62045, Dec. 22, 1981, as amended at 47 FR 36801, Aug. 24, 1982; 47 FR 54419, Dec. 3, 1982]

(a) Petition. One or more employees may file an appeal as representatives of a class of employees. The presiding official shall hear the case as a class action if he/she finds a class action will be the most efficient and fair way to adjudicate the appeal and will adequately protect the interests of all parties.

(b) Procedure. The presiding official shall determine within 30 days whether to hear the appeal as a class action and will consider any opposition thereto.

(c) Standards. For the purpose of determining whether it is appropriate to treat an appeal as a class action, the presiding official will be guided but not controlled by the applicable provisions of the Federal Rules of Civil Procedure.

PARTIES, PRACTITIONERS AND WITNESSES

§ 1201.31 Representation.

(a) All parties to an appeal may be represented in any matter relating to the appeal. The parties shall designate their representatives, if any, in the petition for appeal or responsive pleading. Any subsequent changes in representation shall also be in writing and submitted to the presiding official.

(b) A party may choose any representative so long as the person is willing and available to serve. However, the other party or parties may challenge the representative on the

grounds of conflict of interest or conflict of position. This challenge must be made by motion to the presiding official within 10 days after receipt of the notice of designation, and shall be ruled upon prior to consideration of the case on the merits. These procedures apply equally to original and subsequent designations of representatives. In the event the selected representative is disqualified, the party affected shall be given a reasonable time to obtain another representative.

(c) The presiding official, on his/her own motion, may disqualify a party's representative on the grounds described in subsection (b) above.

(a) Explanation. Intervenors are persons who want to participate in a proceeding because they feel what takes place at the proceeding, or its outcome, may affect their rights or duties. Intervenors as a "matter of right" are those parties who have a statutory right to participate. "Permissive" intervenors are those parties who may be permitted to participate if the proceeding will affect them directly and is otherwise appropriate under law. A request to intervene may be made by motion to the presiding official under §1201.55.

(b) Intervenors as a matter of right. (1) The Director of OPM may intervene as a matter of right under 5 U.S.C. 7701(d)(1). Such intervention shall be made at the earliest practicable time.

(2) The Special Counsel may intervene as a matter of right under 5 U.S.C. 1206(i). Such intervention shall

be made at the earliest practicable time.

(c) Permissive intervenors. (1) Any person may, by motion, request the presiding official for permission to intervene. The motion shall state the reasons why the person should be permitted to intervene.

(2) A motion for permission to intervene will be granted where the requestor will be affected directly by the outcome of the proceeding, including any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b). Denial of a motion for permissive intervention may be appealed to the Board under § 1201.91.

(d) Role of intervenors. Intervenors will be considered full parties to the hearing and will have the same rights and duties as a party with two exceptions:

(1) Intervenors will not have an independent right to a hearing; and

(2) Permissive intervenors may participate only on the issues affecting them, as determined by the presiding official.

appeal pending challenging a subsequent dismissal might have the cases joined.

(b) Action by presiding official. A presiding official may consolidate or join cases on his/her own motion or on the motion of a party if to do so would:

(1) Expedite processing of the cases; and

(2) Not adversely affect the interests of the parties.

§ 1201.37 Fees.

(a) Attorney fees. Except as provided in subsection (a)(1) of this section, the presiding official may require payment by the agency of reasonable attorney fees if the appellant is the prevailing party and payment is warranted in the interests of justice. This shall include but not be limited to any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.

(1) If an appellant is the prevailing party and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1), the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).

(2) Requests for payment of attorney fees shall be made by motion within 10 days of final date of a decision under § 1201.113 in favor of the appellant. The agency may file a responsive pleading within 10 days of receipt of the motion. The ruling of the presiding official on such motions shall be made an addendum to the final decision. A petition for review by the Board of this issue alone shall be submitted within 30 days of the receipt of the presiding official's determination if the case is not reviewed or reopened.

(b) Witness fees. (1) Federal employees: Employees of a Federal agency testifying in any proceeding before the Board of making a statement for the record shall be in official duty status and shall not receive witness fees. Payment of travel and per diem expenses