§ 1201.103 Placement in the record; sanctions. (a) Any communication made in violation of this section shall be made a part of the record and an opportunity for rebuttal allowed. If the communication was oral, a memorandum stating the substance of the discussion shall be placed in the record. (b) The following sanctions shall be available: (1) Parties: The presiding official may, in the interest of justice, require the offending party to show cause why his/her claim, interest or motion should not be dismissed, denied or otherwise adversely affected. (2) Board personnel: Offending Board personnel will be treated in accordance with the Board's standards of conduct. (3) Other persons: The presiding official may invoke such sanctions against offending parties as may be appropriate under the circumstances. FINAL DECISIONS § 1201.111 Initial decision by presiding official. (a) The presiding official shall prepare an initial (or recommended) decision within 25 days of the closing of the record. Such initial decision shall be immediately transmitted to the Secretary of the Board, to the Director of OPM and to all parties to the appeal, including named parties and intervenors, whether permissive or of right. (b) Each initial decision shall contain: (1) Findings of fact and conclusions, as well as the reasons or bases therefor, upon all the material issues of fact and law presented on the record; (2) An order as to the final disposition of the case, including appropriate relief; (3) The date upon which the decision will become effective, which, for purposes of this section, shall be deemed to be effective 35 days after issuance; and (4) A statement of further right to appeal, including petition for review and judicial review. § 1201.112 Jurisdiction of presiding official. After filing the initial decision, the presiding official shall retain jurisdiction over the case only to the limited extent necessary to correct the transcript, rule on a request by the appellant for attorney fees and take that action necessary to ensure compliance with the final decision. 8 1201.113 Finality of decision. The initial decision of the presiding official shall become final 35 days after issuance. (a) Exceptions. The initial decision shall not become final if any party files a petition for review or if the Board reopens the case on its own motion within 35 days after issuance of the decision. (b) Petition for review denied. If the Board denies all petitions for review, the initial decision shall become final five days after the issuance of the last denial. (c) Petition for review granted or case reopened. If the Board grants a petition for review or reopens a case, the decision of the Board shall be the final decision. (d) Extensions. The Board may extend the 35 day time limit for filing a petition for good cause shown. (e) Exhaustion. Administrative remedies are considered exhausted when a decision becomes final in accordance within this section. § 1201.114 Filing of petition for review. (a) Who may file. Any party to the proceeding, the Director of OPM, and the Special Counsel may file a petition for review. The Director may request review only if he/she is of the opinion that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office (5 U.S.C. 7701(e)(2)). (b) Time for filing. A petition for review may be filed within 35 days of issuance of the initial decision. (c) Place for filing. A petition for review shall be filed with the Secretary of the Merit Systems Protection Board, Washington, D.C. 20419. 81201.115 Contents of petition for review. The petition for review shall set forth objections to the initial decision, supported by references to applicable laws or regulations, and with specific reference to the record. After providing an opportunity for response by other parties, the Board may grant a petition for review when it is established that: (a) New and material evidence is available that, despite due diligence, was not available when the record was closed; or (b) The decision of the presiding official is based on an erroneous interpretation of statute or regulation. 81201.116 Procedure for review or reopening. (a) In any case reopened or reviewed, the Board shall inform the parties of the reopening and review and may: (1) Hear oral arguments; (3) Remand the proceedings to the presiding official to take further testimony or evidence or make further findings or conclusions; or (4) Take any other action necessary for final disposition of the case. (b) The Board may affirm, reverse, remand, modify or vacate the decision of the presiding official, in whole or in part. Where appropriate, the Board shall issue a final decision and order a date for compliance. § 1201.117 Board reopening and reconsideration of case. The Board may reopen and reconsider a decision of a presiding official on its own motion at any time, notwithstanding any other provisions of this part. § 1201.118 Judicial review. Any employee or applicant for employment adversely affected by a final order or decision of the Board may obtain judicial review under the provisions of 5 U.S.C. 7703. Subpart C-Hearing Procedures for Original Jurisdiction Cases ACTIONS BROUGHT BY THE SPECIAL COUNSEL § 1201.121 Scope and compliance with Subpart B. (a) Scope. The Board has original jurisdiction over actions brought by the Special Counsel and requests made by the Special Counsel for stays of certain personnel actions. The following sections of these regulations govern the proceedings concerning actions brought by the Special Counsel. (b) Compliance with Subpart B. Except as otherwise expressly provided by this subpart, the Special Counsel shall comply with the regulations regarding hearing procedures set forth in Subpart B of this part in all complaints or requests he/she files with the Board. § 1201.122 Filing and service in Special Counsel actions. (a) Filing. Two copies of all complaints and requests, together with numbered and tabbed exhibits or attachments, must be filed with the Office of the Secretary, and a copy must be served on all parties along with a certificate of service. (b) Service. Service may be by mail or by personal delivery. Service by mail is accomplished by mailing by certified mail to all parties or their representatives at the last known address a copy of the complaint or request, together with exhibits or attachments, and a certificate of service. Personal delivery is accomplished by delivering the documents described above to the business office or home of the person to whom it is addressed and leaving it with that person, or with a responsible person at that address. § 1201.123 Special Counsel complaints. If the Special Counsel determines that any of the actions set out below should be taken, he/she shall file a written complaint setting forth with particularity the supporting facts and any alleged violations of law or regulation. (a) Action to require an agency to take corrective action (5) U.S.C. 1206(cX1XB)); (b) Action to correct a pattern of prohibited personnel practices not otherwise appealable to the Board (5 U.S.C. 1206(g)); (c) Action to discipline an employee (5 U.S.C. 1207); and (d) Action to discipline an employee under the Federal Employees Flexible and Compressed Work Schedule Act (5 U.S.C. 6101 note). The Board may order the Special Counsel and the responding party to file briefs and/or memoranda in any action the Special Counsel may bring before the Board. 81201.124 Rights of employees. When the Special Counsel files a complaint proposing a disciplinary action against an employee under 5 U.S.C. 1206(g), the affected employee shall have the right: (a) To file an answer, supported by affidavits and documentary evidence; (b) To be represented; (c) To a hearing on the record before the Board or an administrative law judge; (d) To a written decision by the Board, setting forth the reasons for its conclusion, issued at the earliest practicable date; and (e) A copy of any final order imposing disciplinary actions. (a) Filing and default: A party named in a Special Counsel complaint shall file an answer with the Secretary of the Board within 30 days of receipt of the complaint. In the absence of good cause shown, a party failing to answer waives the right to contest the allegations in the complaint. Unanswered allegations shall be considered admitted and shall form the basis of an initial or final decision as appropriate. (b) Content: An answer shall contain a specific denial, admission or explanation of each fact alleged in the complaint. If the respondent is without knowledge of a fact, he/she shall so state. Statements of fact and appropriate documentation may be included to support each denial or defense. Allega tions unanswered or admitted in the answer shall be considered true and may not be denied later. § 1201.126 Final orders of the Board. (a) In any action seeking correction of a prohibited personnel practice, the Board may order such corrective actions as it considers appropriate after providing an opportunity for comment by the agency and OPM. 5 U.S.C. 1206(cX1XB)). (b) In any action seeking correction of a pattern of prohibited personnel practices not otherwise appealable to the Board, the Board may order an agency or employee to take whatever measures the Board may determine to be necessary or appropriate (5 U.S.C. 1206(h)). (c) In any action to discipline an employee, including one brought to enforce 5 U.S.C. 7324, the Board may order a removal, reduction in grade, debarment (not to exceed five years), suspension, reprimand, or an assessment of civil penalty not to exceed $1,000 (5 U.S.C. 1207). (d) In any action seeking the withholding of Federal funds under 5 U.S.C. 1506(a)(2) in which a State or local employee has engaged in prohibited political activities, the Board may order the Federal agency administering loans or grants to a State or local agency that reappoints the offending employee within a period of 18 months to withhold a sum not to exceed two years' pay of the offending employee at the rate he/she was receiving at the time of the violation. (e) In any action to discipline an employee under the Federal Employees Flexible and Compressed Work Schedule Act, a final order of the Board may impose disciplinary action consisting of: (1) Removal from Federal employment for any period of time the Board may prescribe; (2) Suspension; or (3) Such other discipline as the Board shall deem appropriate. § 1201.127 Request for stay. Under 5 U.S.C. 1208, the Special Counsel may request a Member of the Board to stay any personnel action if he/she determines that there are reasonable grounds to believe that the action was or is about to be taken as a result of a prohibited personnel practice. (a) Content of request. Each request must be signed by the Special Counsel or his/her representative, and must set forth: (1) The names of the parties; (2) The agency and officials involved; (3) The nature of the action to be stayed; (4) A concise statement of facts justifying the charge that the personnel action was or is to be the result of a prohibited personnel practice; and (5) The laws or regulations that were or will be violated if the stay is not issued. (b) Filing and serving of request. The request for stay shall be filed and served on all parties in accordance with 1201.122. (c) Action on the request for stay-(1) Initial stay. Within three calendar days after the filing of a request, excluding Saturdays, Sundays and legal holidays any Member of the Board shall grant a request for a stay of 15 calendar days under 5 U.S.C. 1208(a)(1), unless the Member determines that, under the facts and circumstances, the requested stay would not be appropriate. Unless denied within the three-day period, the stay shall be considered granted. (2) Extension of initial stay. Upon request filed by the Special Counsel, any Member of the Board may extend the period of any stay ordered under 5 U.S.C. 1208(a) for a period of not more than 30 days. If the agency involved files with the Board its written views on the granting of the extension of a stay under this provision, the Board, in its discretion, may consider them. (3) Indefinite stay. Upon request of the Special Counsel, the Board may extend any stay granted under 5 U.S.C. 1208(a) for whatever time it considers appropriate, but only after providing to the Special Counsel and the agency an opportunity to comment, and after the Board has concurred in the request of the Special Counsel. Simultaneously with filing a request for an extension of stay under 5 U.S.C. 1208(c), the Special Counsel shall file a brief setting forth the facts and any relevant legal authority that the Board should consider in reaching its determination. The agency shall respond in accordance with any order of the Board. (d) Additional information. At any time, the Board, or a Member of the Board, where appropriate, may require the Special Counsel and/or the agency to appear and present further information or explanation on a request for a stay, to file supplemental briefs or memoranda, or to supply factual information needed by the Board in making a determ:nation regarding a stay. § 1201.128 Administrative appeal, judicial review. No administrative appeal lies from an order of the Board. An employee subject to a final order imposing disciplinary action under 5 U.S.C. 1207 may obtain judicial review of the order of the Board in an appropriate United States Court of Appeals (5 U.S.C. 1207(c)). script shall be made of the proceeding. The appointee shall not be entitled to any other procedural rights. However, the Board will refer a copy of the record to the Special Counsel, the Board's Office of Merit Studies, the Office of Personnel Management and the employing agency for whatever action may be appropriate. § 1201.143 Right to appeal. There is no right to appeal under 5 U.S.C. 7703. The removal action shall not be delayed as a result of the hearing. Subpart D-Procedures for Cases Involving Allegations of Discrimination § 1201.151 Scope and policy. (a) Scope. (1) The rules in this subpart implement 5 U.S.C. 7702, and apply in any case where an employee or applicant for employment alleges that a personnel action appealable to the Board was taken, in whole or in part, on the basis of prohibited discrimination. (2) "Prohibited discrimination" as used in this subpart means discrimination prohibited by: (i) Section 717 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(a); (ii) Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)); (iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791); (iv) Sections 12 and 15 of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 631, 633a); or (v) Any rule, regulation or policy directive prescribed under any provision of law described in (i) through (iv) above. (b) Policy. It is the policy of the Board to adjudicate impartially, thoroughly and fairly all issues raised under this subpart in the course of an action brought before the Board. In doing so the Board will allow appellants an opportunity to raise allegations of discrimination during the ap |