5 CFR Part 1201 — Practices and Procedures

PART 1201—PRACTICES AND PROCEDURES Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. Source: 54 FR 53504, Dec. 29, 1989, unless otherwise noted. Subpart A—Jurisdiction and Definitions § 1201.1 General. The Board has two types of jurisdiction, original and appellate. § 1201.2 Original jurisdiction. The Board's original jurisdiction includes the following cases: (a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 1215, and 1216; (b) Requests, by persons removed from the Senior Executive Service for performance deficiencies, for informal hearings; and (c) Actions taken against administrative law judges under 5 U.S.C. 7521. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997] § 1201.3 Appellate jurisdiction. (a) Generally. (1) Adverse actions. (2) Retirement appeals. (3) Restoration to employment following recovery from a work-related injury. (4) Performance-based actions under chapter 43. (5) Reduction in force. (6) Employment practices appeal. (7) Denial of within-grade pay increase. (8) Various actions involving the Senior Executive Service. (9) Miscellaneous restoration and reemployment matters. (i) Failure to afford reemployment priority rights pursuant to a Reemployment Priority List following separation by reduction in force (5 CFR 330.214); (ii) Full recovery from a compensable injury after more than 1 year, because of the employment of another person (5 CFR 302.501); (iii) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508); (iv) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209); (v) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313); (vi) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707); or (vii) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807). (b)(1) Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act. (2) Appeals involving an allegation that the action was based on appellant's whistleblowing or other protected activity. (c) Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures: (1) For an employee covered by a collective bargaining agreement under 5 U.S.C. 7121, the negotiated grievance procedures contained in the agreement are the exclusive procedures for resolving any action that could otherwise be appealed to the Board, with the following exceptions: (i) An appealable action involving discrimination under 5 U.S.C. 2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or adverse action under 5 U.S.C. 7512, may be raised under the Board's appellate procedures, or under the negotiated grievance procedures, but not under both; (ii) An appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under not more than one of the following procedures: (A) The Board's appellate procedures; (B) The negotiated grievance procedures; or (C) The procedures for seeking corrective action from the Special Counsel under subchapters II and III of chapter 12 of title 5 of the United States Code. (iii) Except for actions involving discrimination under 5 U.S.C. 2302(b)(1) or any other prohibited personnel practice, any appealable action that is excluded from the application of the negotiated grievance procedures may be raised only under the Board's appellate procedures. (2) Choice of procedure. (3) Review of discrimination grievances. [54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001; 70 FR 30608, May 27, 2005; 72 FR 56884, Oct. 5, 2007; 74 FR 9343, Mar. 4, 2009; 77 FR 62363, Oct. 12, 2012; 78 FR 39545, July 2, 2013; 79 FR 48943, Aug. 19, 2014; 89 FR 24681, Apr. 9, 2024; 89 FR 72961, Sept. 9, 2024; 91 FR 8360, Feb. 23, 2026; 91 FR 51998, Aug. 12, 2026] § 1201.4 General definitions. (a) Judge. (b) Pleading. (c) Motion. (d) Appropriate regional or field office. (e) Party. (f) Appeal. (g) Petition for review. (h) Day. (i) Service. (j) Date of service. (k) Certificate of service. (l) Date of filing. (m) Electronic filing (e-filing). (n) E-filer. (o) Grievance. (p) Substantial evidence. (q) Preponderance of the evidence. (r) Harmful error. i.e. (s) Nonfrivolous allegation. (1) Is more than conclusory; (2) Is plausible on its face; and (3) Is material to the legal issues in the appeal. [54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, 1994; 68 FR 59860, Oct. 20, 2003; 69 FR 57628, Sept. 27, 2004; 73 FR 10129, Feb. 26, 2008; 77 FR 62364, Oct. 12, 2012; 80 FR 4496, Jan. 28, 2015] Subpart B—Procedures for Appellate Cases General § 1201.11 Scope and policy. The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in § 1201.13. The regulations in this subpart apply also to appellate proceedings and stay requests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board's policy that these rules will be applied in a manner that expedites the processing of each case. It is the Board's policy that these rules will be applied in a manner that ensures the fair and efficient processing of each case. [74 FR 9343, Mar. 4, 2009] § 1201.12 Revocation, amendment, or waiver of rules. The Board may revoke, amend, or waive any of these regulations. A judge may, for good cause shown, waive a Board regulation unless a statute requires application of the regulation. The judge must give notice of the waiver to all parties, but is not required to give the parties an opportunity to respond. § 1201.13 Appeals by Board employees. Appeals by Board employees will be filed with the Clerk of the Board and will be assigned to an administrative law judge for adjudication under this subchapter. The Board's policy is to insulate the adjudication of its own employees' appeals from agency involvement as much as possible. Accordingly, the Board will not disturb initial decisions in those cases unless the party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge or a clear error of law. In addition, the Board, as a matter of policy, will not rule on any interlocutory appeals or motions to disqualify the administrative law judge assigned to those cases until the initial decision has been issued. § 1201.14 Electronic filing procedures. (a) General. (b) System for electronic filing. https://www.mspb.gov (2) e-Appeal is a closed system that collects and maintains records as part of an MSPB system of records and is subject to the provisions of the Privacy Act of 1974. Access to cases in e-Appeal is limited to the parties participating in a Board proceeding who have registered as e-filers with the MSPB, and authorized individuals providing legal support to designated representatives. (c) Matters subject to electronic filing. (1) File any pleading, including a new appeal, in any matter within the MSPB's appellate jurisdiction (§ 1201.3); (2) File any pleading, including a new complaint, in any matter within the MSPB's original jurisdiction (§ 1201.2); (3) File a petition for enforcement of a final MSPB decision (§ 1201.182); (4) File a request for attorney fees (§ 1201.203); (5) File a request for compensatory, consequential, or liquidated damages (§ 1201.204); (6) Designate a representative, revoke such a designation, or change such a designation (§ 1201.31); (7) Notify the MSPB of a change in contact information such as address (geographic or email) or telephone number; or (8) Receive a requested subpoena from the Board for issuance to a witness (§ 1201.83). (d) Matters excluded from e-filing. (1) File a request to hear a case as a class appeal or any opposition thereto (§ 1201.27); (2) Serve a subpoena on a witness (§ 1201.83); (3) File a pleading with the Special Panel (§ 1201.137); (4) File a pleading that contains Sensitive Security Information (SSI) (49 CFR parts 15 and 1520); (5) File a pleading that contains classified information (32 CFR part 2001); or (6) File a request to intervene or participate as an amicus curiae (e) Registration as an e-filer. (1) The exclusive means to register as an e-filer is to follow the instructions at e-Appeal using a unique email address. (2) Registration as an e-filer constitutes consent to accept electronic service of pleadings filed by other e-filers and documents issued by the MSPB. No one may electronically file a new appeal or a pleading with the MSPB, or view the case record in an assigned appeal, unless registered as an e-filer. (3) Registration as an e-filer applies to all MSPB proceedings with which the e-filer is associated in their e-Appeal role (appellant, appellant representative, or agency representative). If an individual requires more than one e-Appeal role ( e.g., (4) All notices, orders, decisions, and other documents issued by the MSPB, as well as all pleadings filed by parties, will be made available for viewing and downloading at e-Appeal. Access to documents at e-Appeal is limited to the parties and representatives who are registered e-filers in the appeals in which they were filed. (5) Agency representatives and appellant attorney representatives must register as e-filers. (6) Each e-filer must promptly update their e-Appeal profile and notify the MSPB and other participants of any change in their address, telephone number, or email address by filing a pleading in each pending proceeding with which they are associated. (7) An appellant or an appellant non-attorney representative may withdraw their registration as an e-filer pursuant to requirements set forth in e-Appeal policies posted to the MSPB's website. Such withdrawal means that, effective upon the MSPB's processing of a proper withdrawal, pleadings and MSPB documents will no longer be served on that person electronically and that person will no longer have electronic access to their case records through e-Appeal. A withdrawal of registration as an e-filer may preclude future re-registering as an e-filer. (f) Pleadings by e-filers. i.e., (g) Agency Initial Contacts. (2) Agency initial contacts must be designated pursuant to requirements set forth in e-Appeal policies posted to the MSPB's website. (h) Form of electronic pleadings Electronic formats allowed. 1/2 (2) Requirements for pleadings with electronic attachments. e.g., (3) Submission of audio and video evidence. (i) Service of electronic pleadings and MSPB documents. (2) Delivery of email can encounter failure points. E-filers are responsible for ensuring that email from mspb.gov (3) E-filers are responsible for monitoring case activity regularly at e-Appeal to ensure that they have received all case-related documents. (j) Documents requiring a signature. (k) Affidavits and declarations made under penalty of perjury. (l) Date electronic documents are filed and served. (2) MSPB documents served electronically on e-filers are deemed received on the date of electronic transmission. (m) Authority of MSPB to regulate e-filing. (2) A judge or the Clerk of the Board may require that any document filed electronically be submitted in non-electronic form and bear the written signature of the submitter. (3) The MSPB may order any party or authorized individual to cease participation as an e-filer or access to e-Appeal in circumstances that constitute a misuse of the system or a failure to comply with law, rule, regulation, or policy governing use of a U.S. government information system. (4) MSPB reserves the right to revert to traditional methods of service. The MSPB may serve documents via traditional means—postal mail, facsimile, commercial or personal delivery—at its discretion. Parties and their representatives are responsible for ensuring that the MSPB always has their current postal mailing addresses, even when they are e-filers. [88 FR 67056, Sept. 29, 2023] Appeal of Agency Action; Pleadings § 1201.21 Notice of appeal rights. When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following: (a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal; (b) A copy, or access to a copy, of the Board's regulations; (c) A copy, or access to a copy, of the MSPB appeal form available at the Board's Web site ( http://www.mspb.gov (d) Notice of any right the employee has to file a grievance or seek corrective action under subchapters II and III of 5 U.S.C. chapter 12, including: (1) Whether the election of any applicable grievance procedure will result in waiver of the employee's right to file an appeal with the Board; (2) Whether both an appeal to the Board and a grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board; (3) Whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.155 of this part; and (4) The effect of any election under 5 U.S.C. 7121(g), including the effect that seeking corrective action under subchapters II and III of 5 U.S.C. chapter 12 will have on the employee's appeal rights before the Board. (e) Notice of any right the employee has to file a complaint with the Equal Employment Opportunity Commission or to grieve allegations of unlawful discrimination, consistent with the provisions of 5 U.S.C. 7121(d) and 29 CFR 1614.301 and 1614.302. (f) The name or title and contact information for the agency official to whom the Board should send the Acknowledgment Order and copy of the appeal in the event the employee files an appeal with the Board. Contact information should include the official's mailing address, email address, telephone and fax numbers. [74 FR 9343, Mar. 4, 2009, as amended at 77 FR 62364, Oct. 12, 2012; 78 FR 21518, Apr. 11, 2013] § 1201.22 Filing an appeal and responses to appeals. (a) Place of filing. (b) Time of filing. (2) The time limit prescribed by paragraph (b)(1) of this section for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103-353), as amended; see part 1208 of this title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Pub. L. 105-339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests. (3) An appellant is responsible for keeping the agency informed of his or her current home address for purposes of receiving the agency's decision, and correspondence which is properly addressed and sent to the appellant's address via postal or commercial delivery is presumed to have been duly delivered to the addressee. While such a presumption may be overcome under the circumstances of a particular case, an appellant may not avoid service of a properly addressed and mailed decision by intentional or negligent conduct which frustrates actual service. The appellant may also be deemed to have received the agency's decision if it was received by a designated representative or a person of suitable age and discretion residing with the appellant. The following examples, while not controlling, illustrate potential application of this rule: Example A: An appellant who fails to pick up mail delivered to his or her post office box may be deemed to have received the agency decision. Example B: An appellant who did not receive his or her mail while in the hospital may overcome the presumption of actual receipt. Example C: An appellant may be deemed to have received an agency decision received by his or her roommate. (c) Timeliness of appeals. (d) Method of filing an appeal. (e) Filing a response. [54 FR 53504, Dec. 29, 1989] Editorial Note: For Federal Register www.govinfo.gov. § 1201.23 Computation of time. (a) Computation of deadlines. (1) Example 1: If an employee receives a decision notice that is effective on July 1, the 30-day period for filing an appeal starts to run on July 2. The filing ordinarily would be timely only if it is made by July 31. If July 31 is a Saturday, however, the last day for filing would be Monday, August 2. (2) Example 2: The judge orders the appellant to file a response to a jurisdictional order no later than October 15, 2012, and that the agency's response is due 10 days after the filing of the appellant's pleading. If the appellant serves the agency with a pleading via regular mail on October 15, the agency's deadline for filing a response will be October 30, not October 25. (b) Changes to the computation of deadlines. [77 FR 62364, Oct. 12, 2012, as amended at 89 FR 72961, Sept. 9, 2024] § 1201.24 Content of an appeal; right to hearing. (a) Content. (1) The name, address, telephone number, and email address of the appellant, and the name and address of the agency that took the action; (2) A description of the action the agency took and its effective date; (3) A request for hearing if the appellant wants one; (4) A statement of the reasons why the appellant believes the agency action is wrong; (5) A statement of the action the appellant would like the judge to order; (6) The name, address, telephone number, and email address of the appellant's representative, if the appellant has a representative; (7) Where applicable, a copy of the notice of proposed action, the agency decision being appealed and, if available, the SF-50 or similar notice of personnel action. No other attachments should be included with the appeal, as the agency will be submitting the documents required by 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed. An appellant should not miss the deadline for filing merely because he or she does not currently have all of the documents specified in this section. (8) A statement telling whether the appellant or anyone acting on his or her behalf has filed a grievance or a formal discrimination complaint with any agency regarding this matter; and (9) The signature of the appellant or, if the appellant has a representative, of the representative. If the appeal is electronically filed, compliance with § 1201.14 and the directions at e-Appeal satisfy the signature requirement. (b) An appellant may raise a claim or defense not included in the appeal at any time before the end of the conference(s) held to define the issues in the case. An appellant may not raise a new claim or defense after that time, except for good cause shown. However, a claim or defense not included in the appeal may be excluded if a party shows that including it would result in undue prejudice. (c) Use of Board form or electronic filing. http://www.mspb.gov (d) Right to hearing. (e) Timely request. [54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 27, 2004; 77 FR 62364, Oct. 12, 2012; 88 FR 67058, Sept. 29, 2023] § 1201.25 Content of agency response. The agency response to an appeal must contain the following: (a) The name of the appellant and of the agency whose action the appellant is appealing; (b) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action; (c) All documents contained in the agency record of the action; (d) Designation of and signature by the authorized agency representative; and (e) Any other documents or responses requested by the Board. § 1201.26 Service of pleadings and response. (a) Service Service by the Board. (2) Service by the parties. (b) Submission of documents. 1/2 (c) Submission of audio and video evidence. [88 FR 67058, Sept. 29, 2023] § 1201.27 Class appeals. (a) Appeal. (b) Procedure. (c) Standards. (d) Electronic filing. [54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004] § 1201.28 Case suspension procedures. (a) Suspension period. (b) Early termination of suspension period. (c) Termination of suspension period. (d) Mediation. [77 FR 62365, Oct. 12, 2012] § 1201.29 Dismissal without prejudice. (a) In general. (b) Procedure. (c) Refiling. (d) Waiver. [77 FR 62365, Oct. 12, 2012] Parties, Representatives, and Witnesses § 1201.31 Representatives. (a) Procedure. (b) A party may choose any representative as long as that person is willing and available to serve. The other party or parties may challenge the designation, however, on the ground that it involves a conflict of interest or a conflict of position. Any party who challenges the designation must do so by filing a motion with the judge within 15 days after the date of service of the notice of designation or 15 days after a party becomes aware of the conflict. The judge will rule on the motion before considering the merits of the appeal. These procedures apply equally to each designation of representative, regardless of whether the representative was the first one designated by a party or a subsequently designated representative. If a representative is disqualified, the judge will give the party whose representative was disqualified a reasonable time to obtain another one. (c) The judge, on his or her own motion, may disqualify a party's representative on the grounds described in paragraph (b) of this section. (d) As set forth in paragraphs (d) and (e) of § 1201.43 of this part, a judge may exclude a representative from all or any portion of the proceeding before him or her for contumacious conduct or conduct prejudicial to the administration of justice. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 62 FR 66815, Dec. 22, 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, Feb. 4, 2000; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62365, Oct. 12, 2012] § 1201.32 Witnesses; right to representation. Witnesses have the right to be represented when testifying. The representative of a nonparty witness has no right to examine the witness at the hearing or otherwise participate in the development of testimony. § 1201.33 Federal witnesses. (a) Every Federal agency or corporation, including nonparties, must make its employees or personnel available to furnish sworn statements or to appear at a deposition or hearing when ordered by the judge to do so. When providing those statements or appearing at a deposition or at the hearing, Federal employee witnesses will be in official duty status ( i.e. (b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written request that the judge order the employing agency to provide such official time. The judge will act on such a request promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section. (c) An order obtained under paragraph (b) of this section may be enforced as provided under subpart F of this part. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997; 77 FR 62365, Oct. 12, 2012; 89 FR 72961, Sept. 9, 2024] § 1201.34 Intervenors and amicus curiae. (a) Explanation of Intervention. (b) Intervenors as a matter of right. (2)(i) Except as provided in paragraph (b)(2)(ii) of this section, the Special Counsel may intervene as a matter of right under 5 U.S.C. 1212(c). The motion to intervene must be filed at the earliest practicable time. (ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed. (c) Permissive intervenors. (2) A motion for permission to intervene will be granted where the requester will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may request permission to intervene. A judge's denial of a motion for permissive intervention may be appealed to the Board under § 1201.91 of this part. (d) Role of intervenors. (1) Intervenors do not have an independent right to a hearing; and (2) Permissive intervenors may participate only on the issues affecting them. The judge is responsible for determining the issues on which permissive intervenors may participate. (e) Amicus curiae. (2) A request to file an amicus curiae brief must include a statement of the person's or organization's interest in the appeal and how the brief will be relevant to the issues involved. (3) The request may be granted, in the discretion of the judge or the Board, if the person or organization has a legitimate interest in the proceedings, and such participation will not unduly delay the outcome and may contribute materially to the proper disposition thereof. (4) The amicus curiae shall submit its brief within the time limits set by the judge or the Board and must comply with any further orders by the judge or the Board. (5) An amicus curiae is not a party to the proceeding and may not participate in any way in the conduct of the hearing, including the presentation of evidence or the examination of witnesses. The Board, in its discretion, may invite an amicus curiae to participate in oral argument in proceedings in which oral argument is scheduled. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62365, Oct. 12, 2012] § 1201.35 Substituting parties. (a) If an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. Substitution will not be permitted where the interests of the appellant have terminated because of the appellant's death or other disability. (b) The representative or proper party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown. (c) In the absence of a timely substitution of a party, the processing of the appeal may continue if the interests of the proper party will not be prejudiced. § 1201.36 Consolidating and joining appeals. (a) Explanation. (2) Joinder occurs when one person has filed two or more appeals and they are united for consideration. For example, a judge might join an appeal challenging a 30-day suspension with a pending appeal challenging a subsequent removal if the same appellant filed both appeals. (b) Action by judge. (1) Expedite processing of the cases; and (2) Not adversely affect the interests of the parties. (c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62365, Oct. 12, 2012] § 1201.37 Witness fees. (a) Federal employees. (b) Other witnesses. (c) Payment of witness fees and travel costs. (d) A witness who is denied the witness fees and travel costs required by paragraphs (b) and (c) of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs (b) and (c) of this section. (e) An order obtained under paragraph (d) of this section may be enforced as provided under subpart F of this part. [54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997; 73 FR 6833, Feb. 6, 2008] Judges § 1201.41 Judges. (a) Exercise of authority. (b) Authority. (1) Administer oaths and affirmations; (2) Issue subpoenas under § 1201.81 of this part; (3) Rule on offers of proof and receive relevant evidence; (4) Rule on discovery motions under § 1201.73 of this part; (5) Grant an appellant's request for a hearing;

case; (6) Convene a hearing by appropriate method, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing; (7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part; (8) Rule on all motions, witness and exhibit lists, and proposed findings; (9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law; (10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious; (11) Impose sanctions as provided under § 1201.43 of this part; (12) Hold prehearing conferences for the settlement and simplification of issues; (13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication; (14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F; (15) Issue initial decisions; and (16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate. (c) Settlement Settlement discussion. ex parte (2) Agreement. (i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement. (ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance. (iii) The judge may rescind a settlement agreement and reinstate the underlying matter on appeal in accordance with § 1201.183(a)(8)(ii). [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998; 77 FR 62366, Oct. 12, 2012; 89 FR 72961, Sept. 9, 2024] § 1201.42 Disqualifying a judge. (a) If a judge considers himself or herself disqualified, he or she will withdraw from the case, state on the record the reasons for doing so, and another judge will be promptly assigned. (b) A party may file a motion asking the judge to withdraw on the basis of personal bias or other disqualification. This motion must be filed as soon as the party has reason to believe there is a basis for disqualification. The reasons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) (c) If the judge denies the motion, the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under § 1201.91 of this part. Failure to request certification is considered a waiver of the request for withdrawal. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012] § 1201.43 Sanctions. The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of this section. Before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record. (a) Failure to comply with an order. (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) Prohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information; (3) Permit the requesting party to introduce secondary evidence concerning the information sought; and (4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order. (b) Failure to prosecute or defend appeal. (c) Failure to make timely filing. (d) Exclusion of a representative or other person. (e) Cancellation, suspension, or termination of hearing. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012] Hearings § 1201.51 Scheduling the hearing. (a) The hearing will be scheduled not earlier than 15 days after the date of the hearing notice unless the parties agree to an earlier date. The agency, upon request of the judge, must provide appropriate hearing space. (b) The judge may change the time, date, or place of the hearing, or suspend, adjourn, or continue the hearing. The change will not require the 15-day notice provided in paragraph (a) of this section. (c) Either party may file a motion for postponement of the hearing. The motion must be made in writing and must either be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must describe the reasons for the request. The judge will grant the request for postponement only upon a showing of good cause. (d) The Board has established certain approved hearing locations, which are listed on the Board's public Web site ( www.mspb.gov [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012] § 1201.52 Public hearings. (a) Closing the hearing. (b) Electronic devices. [77 FR 62366, Oct. 12, 2012] § 1201.53 Record of proceedings. (a) Recordings. (b) Transcripts. (c) Copies. https://foia.mspb.gov. (d) Corrections to transcript. (e) Official record. [77 FR 62366, Oct. 12, 2012] § 1201.55 Motions. (a) Form. (b) Objection. (c) Motions for extension of time. (d) Motions for protective orders. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997] § 1201.56 Burden and degree of proof. Link to an amendment published at 91 FR 56574, Sept. 3, 2026. (a) Applicability. (1) An individual right of action appeal under the Whistleblower Protection Act, 5 U.S.C. 1221; (2) An appeal under the Veterans Employment Opportunities Act, 5 U.S.C. 3330a(d); (3) An appeal under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and (4) An appeal under 5 CFR 353.304, in which the appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence. (b) Burden and degree of proof Agency. (i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence (as defined in § 1201.4(p)); or (ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence (as defined in § 1201.4(q)). (2) Appellant. (A) Issues of jurisdiction, except for cases in which the appellant asserts a violation of his right to reemployment following military duty under 38 U.S.C. 4312-4314; (B) The timeliness of the appeal; and (C) Affirmative defenses. (ii) In appeals from final decisions of the Office of Personnel Management (OPM) involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence (as defined in § 1201.4(q)), entitlement to the benefits. (c) Affirmative defenses of the appellant. (1) Shows harmful error in the application of the agency's procedures in arriving at its decision (as defined in § 1201.4(r)); (2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or (3) Shows that the decision was not in accordance with law. (d) Administrative judge. [80 FR 4496, Jan. 28, 2015, as amended at 89 FR 72961, Sept. 9, 2024] § 1201.57 Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review. (a) Applicability. (1) An individual right of action (IRA) appeal under the Whistleblower Protection Act, 5 U.S.C. 1221; (2) A request for corrective action under the Veterans Employment Opportunities Act (VEOA), 5 U.S.C. 3330a(d); (3) A request for corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and (4) An appeal under 5 CFR 353.304, in which an appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence (denial of restoration appeal). (b) Matters that must be supported by nonfrivolous allegations. (c) Matters that must be proven by a preponderance of the evidence. (1) When applicable, exhaustion of a statutory complaint process that is preliminary to an appeal to the Board; (2) Timeliness of an appeal under 5 CFR 1201.22; (3) Standing to appeal, when disputed by the agency or questioned by the Board. (An appellant has “standing” when he or she falls within the class of persons who may file an appeal under the law applicable to the appeal.); and (4) The merits of an appeal, if the appeal is within the Board's jurisdiction and was timely filed. (d) Scope of the appeal. (e) Notice of jurisdictional, timeliness, and merits elements. (f) Additional information. (g) For additional information on denial of restoration appeals, the reader should consult 5 CFR part 353, subparts A and C. [80 FR 4496, Jan. 28, 2015] § 1201.58 Order of hearing. (a) In cases in which the agency has taken an action against an employee, the agency will present its case first. (b) The appellant will proceed first at hearings convened on the issues of: (1) Jurisdiction; (2) Timeliness; or (3) Office of Personnel Management disallowance of retirement benefits, when the appellant applied for those benefits. (c) The judge may vary the normal order of presenting evidence. [54 FR 53504, Dec. 29, 1989. Redesignated at 80 FR 4496, Jan. 28, 2015] § 1201.59 Closing the record. (a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identified for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose. (b) If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties. (c) Once the record closes, additional evidence or argument will ordinarily not be accepted unless: (1) The party submitting it shows that the evidence or argument was not readily available before the record closed; or (2) It is in rebuttal to new evidence or argument submitted by the other party just before the record closed. (d) The judge will include in the record any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012. Redesignated at 80 FR 4496, Jan. 28, 2015] Evidence § 1201.61 Exclusion of evidence and testimony. Any evidence and testimony that is offered in the hearing and excluded by the judge will be described, and that description will be made a part of the record. § 1201.63 Stipulations. The parties may stipulate to any matter of fact. The stipulation will satisfy a party's burden of proving the fact alleged. § 1201.64 Official notice. Official notice is the Board's or judge's recognition of certain facts without requiring evidence to be introduced establishing those facts. The judge, on his or her own motion or on the motion of a party, may take official notice of matters of common knowledge or matters that can be verified. The parties may be given an opportunity to object to the taking of official notice. The taking of official notice of any fact satisfies a party's burden of proving that fact. Discovery § 1201.71 Purpose of discovery. Proceedings before the Board will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party's case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention. Discovery requests and responses thereto are not to be filed in the first instance with the Board. They are only filed with the Board in connection with a motion to compel discovery under 1201.73(c) of this part, with a motion to subpoena discovery under 1201.73(d) of this part, or as substantive evidence to be considered in the appeal. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62367, Oct. 12, 2012] § 1201.72 Explanation and scope of discovery. (a) Explanation. (b) Scope. (c) Methods. (d) Limitations. (1) The discovery sought is cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) The party seeking discovery has had sufficient opportunity through discovery in the action to obtain the information sought; or (3) The burden or expense of the proposed discovery outweighs its likely benefit. [68 FR 54651, Sept. 18, 2003, as amended at 73 FR 18150, Apr. 3, 2008; 73 FR 21415, Apr. 21, 2008; 89 FR 72961, Sept. 9, 2024] § 1201.73 Discovery procedures. (a) Initiating discovery. (b) Responses to discovery requests. (c) Motions to compel or issue a subpoena. (i) A copy of the original request and a statement showing that the information sought is discoverable under section 1201.72; (ii) A copy of the response to the request (including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the statement (See appendix IV to part 1201); and (iii) A statement that the moving party has discussed or attempted to discuss the anticipated motion with the nonmoving party or nonparty and made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. (2) The party or nonparty from whom discovery was sought may respond to the motion to compel or the motion to issue a subpoena within the time limits stated in paragraph (d)(3) of this section. (d) Time limits. (2) A party or nonparty must serve a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed by the judge. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place. (3)(i) Any motion for an order to compel or to issue a subpoena must be filed with the judge: (A) Within 20 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired; or (B) Within 10 days of notice that a nonmoving party or nonparty provided an evasive or incomplete answer or response to a discovery request. (ii) A party may request an extension of the time limit to file a motion to compel with respect to any discovery dispute pursuant to § 1201.55. Any pleading in opposition to a motion to compel or subpoena discovery must be filed with the judge within 10 days of the date of service of the motion. (4) Discovery must be completed within the time period designated by the judge or, if no such period is designated, no later than the prehearing or close of record conference. (e) Limits on the number of discovery requests. (2) Absent prior approval by the judge, requests for documents served by parties upon another party or nonparty may not exceed 25 in number, including all discrete subparts. (3) Absent prior approval by the judge, requests for admission served by parties upon another party or nonparty may not exceed 25 in number, including all discrete subparts. (4) Absent prior approval by the judge or agreement by the parties, each party may not take more than 10 depositions. (5) Requests to exceed the limitations set forth in paragraphs (e)(1) through (4) of this section may be granted at the discretion of the judge. In considering such requests, the judge shall consider the factors identified in § 1201.72(d) of this part. [77 FR 62367, Oct. 12, 2012, as amended at 89 FR 72961, Sept. 9, 2024] § 1201.74 Orders for discovery. (a) Motion for an order compelling discovery. (b) Content of order. (1) A provision that the person to be deposed must be notified of the time and place of the deposition; (2) Any conditions or limits concerning the conduct or scope of the proceedings or the subject matter that may be necessary to prevent undue delay or to protect a party or other individual or entity from undue expense, embarrassment, or oppression; (3) Limits on the time for conducting depositions, answering written interrogatories, or producing documentary evidence; and (4) Other restrictions upon the discovery process that the judge sets. (c) Noncompliance. [54 FR 53504, Dec. 29, 1989, as amended at 73 FR 18151, Apr. 3, 2008; 78 FR 23458, Apr. 19, 2013] § 1201.75 Taking depositions. Depositions may be taken by any method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements. Subpoenas § 1201.81 Requests for subpoenas. (a) Request. (b) Form. (c) Relevance. (d) Rulings. [54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30608, May 27, 2005; 77 FR 62367, Oct. 12, 2012; 89 FR 72962, Sept. 9, 2024] § 1201.82 Motions to quash subpoenas. Any person to whom a subpoena is directed, or any party, may file a motion to quash or limit the subpoena. The motion must include reasons why compliance with the subpoena should not be required or the subpoena's scope should be limited. A party must file the motion with the judge and serve it on the other parties. A non-party must file the motion with the judge, who will enter the motion into the record and serve the motion on all parties. For purposes of this section, judges may provide a method by which nonparties may file the motion electronically, including by email, notwithstanding § 1201.14(d). Any party may file a response to the motion within 10 days after the motion has been entered into the record, and the judge will specify the method of service of any such response upon a non-party. [89 FR 72962, Sept. 9, 2024] § 1201.83 Serving subpoenas. (a) Any person who is at least 18 years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who requested the subpoena, and to whom the subpoena has been issued, is responsible for serving the subpoena. (b) A subpoena directed to an individual outside the territorial jurisdiction of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country. (c) A party requesting the presence of a non-federal employee witness must pay that witness' fees and travel expenses in accordance with 5 U.S.C. 1204(b)(3) and 28 U.S.C. 1821. Those fees must be paid or offered to the witness at the time the subpoena is served. [54 FR 53504, Dec. 29, 1989, as amended at 89 FR 72962, Sept. 9, 2024] § 1201.84 Proof of service. The person who has served the subpoena must certify that he or she did so: (a) By delivering it to the witness in person, (b) By registered or certified mail, (c) By delivering the subpoena to a responsible person (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended, or The document in which the party makes this certification also must include a statement that the prescribed fees have been paid or offered. (d) By any other method that is in accordance with applicable State law. [54 FR 53504, Dec. 29, 1989, as amended at 89 FR 72962, Sept. 9, 2024] § 1201.85 Enforcing subpoenas. (a) If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. A written motion must be served upon the person who is alleged to be in noncompliance. (b) The person who is alleged to be in noncompliance may file a response within 10 days. A party must file the response with the judge and serve it on the other parties. Non-parties must file their response with the judge, who will enter the response into the record. The judge may waive § 1201.14(d) to accept a nonparty's response by email. Any party may file a reply to the response within 10 days after the response has been entered into the record. (c) In ruling on a motion to quash, judges may rely on Fed.R.Civ.P. 45 and applicable case law. Upon a finding by the judge of failure to obey a subpoena, the Board, in accordance with 5 U.S.C. 1204(c), may then ask an appropriate U.S. district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country. (d) Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3). [89 FR 72962, Sept. 9, 2024] Interlocutory Appeals § 1201.91 Explanation. An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she determines that the issue presented in it is of such importance to the proceeding that it requires the Board's immediate attention. Either party may make a motion for certification of an interlocutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board's decision. § 1201.92 Criteria for certifying interlocutory appeals. The judge will certify a ruling for review only if the record shows that: (a) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and (b) An immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public. § 1201.93 Procedures. (a) Motion for certification. (b) Certification and review. (c) Stay of appeal. [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62367, Oct. 12, 2012] Ex Parte Communications § 1201.101 Explanation and definitions. (a) Explanation. (b) Definitions for purposes of this section Interested party (i) Any party or representative of a party involved in a proceeding before the Board; and (ii) Any other person who might be affected by the outcome of a proceeding before the Board. (2) Decision-making official [54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62367, Oct. 12, 2012] § 1201.102 Prohibition on ex parte communications. Except as otherwise provided in § 1201.41(c)(1) of this part, ex parte communications that concern the merits of any matter before the Board for adjudication, or that otherwise violate rules requiring written submissions, are prohibited from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter. § 1201.103 Placing communications in the record; sanctions. (a) Any communication made in violation of § 1201.102 of this part will be made a part of the record. If the communication was oral, a memorandum stating the substance of the discussion will be placed in the record. (b) If there has been a violation of § 1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a response. (c) The following sanctions are available: (1) Parties. (2) Other persons. [54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30609, May 27, 2005] Final Decisions § 1201.111 Initial decision by judge. (a) The judge will prepare an initial decision after the record closes and will serve that decision on all parties to the appeal, including named parties, permissive intervenors, and intervenors of right. The Board satisfies its legal obligation under 5 U.S.C. 7701(b)(1) by making electronic copies of initial decisions available to the Office of Personnel Management. (b) Each initial decision will contain: (1) Findings of fact and conclusions of law upon all the material issues of fact and law presented on the record; (2) The reasons or bases for those findings and conclusions; (3) An order making final disposition of the case, including appropriate relief; (4) A statement, if the appellant is the prevailing party, as to whether interim relief is provided effective upon the date of the decision, pending the outcome of any petition for review filed by another party under subpart C of this part; (5) The date upon which the decision will become final (a date that, for purposes of this section, is 35 days after issuance); and (6) A statement of any further process available, including, as appropriate, a petition for review under § 1201.114 of this part, a petition for enforcement under § 1201.182, a motion for attorney fees under § 1201.203, a motion to initiate an addendum proceeding for consequential damages or compensatory damages under § 1201.204, and a petition for judicial review. (c) Interim relief. (2) An initial decision that orders interim relief shall include a section which will provide the appellant specific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the initial decision requires the agency to effect an appointment, the notice required by this section will so state, will specify the title and grade of the appointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant's return to or presence in the workplace would be unduly disruptive. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997; 63 FR 41179, Aug. 3, 1998; 64 FR 27900, May 24, 1999; 77 FR 62367, Oct. 12, 2012] § 1201.112 Jurisdiction of judge. (a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to: (1) Correct the transcript; when one is obtained; (2) Rule on a request by the appellant for attorney fees, consequential damages, or compensatory damages under subpart H of this part; (3) Process any petition for enforcement filed under subpart F of this part; (4) Vacate an initial decision to accept into the record a settlement agreement that is filed prior to the deadline for filing a petition for review, even if the settlement agreement is not received until after the date when the initial decision becomes final under § 1201.113 of this part. (b) Nothing is this section affects the time limits prescribed in § 1201.113 regarding the finality of an initial decision or the time allowed for filing a petition for review. [59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997; 70 FR 30609, May 27, 2005; 77 FR 62368, Oct. 12, 2012; 78 FR 23458, Apr. 19, 2013] § 1201.113 Finality of decision. The initial decision of the judge will become the Board's final decision 35 days after issuance. Initial decisions are not precedential. (a) Exceptions. (b) Petition for review denied. (c) Petition for review granted or case reopened. (d) Extensions. (e) Exhaustion. (f) When the Board, by final decision or order, finds there is reason to believe a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215. [54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997; 77 FR 62368, Oct. 12, 2012; 78 FR 39545, July 2, 2013; 89 FR 72962, Sept. 9, 2024] Subpart C—Petitions for Review of Initial Decisions § 1201.114 Petition for review—content and procedure. (a) Pleadings allowed. (1) A petition for review is a pleading in which a party contends that an initial decision was incorrectly decided in whole or in part. (2) A response to a petition for review may respond only to the arguments and assertions raised in the petition for review and does not contend that the initial decision was incorrectly decided in whole or in part. A response to another party's petition for review must be filed separately from a party's own petition for review. (3) A reply to a response to a petition for review is limited to the factual and legal issues raised by another party in the response to the petition for review. It may not raise new allegations of error. (4) No pleading other than the ones described in this paragraph is permitted unless the party files a motion with and obtains leave from the Clerk of the Board. The motion must briefly describe the nature of and need for the requested pleading, i.e., (b) Contents of petition for review. (c) Who may file. (d) Place for filing. (e) Time for filing. (f) Extension of time to file. (g) Late filings. (h) Length limitations. (i) Intervention. By Director of OPM. (2) By Special Counsel. (ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed. (3) Permissive intervenors. (j) Service. (k) Closing the record. (l) Rejection for failure to comply. [77 FR 62368, Oct. 12, 2012, as amended at 78 FR 23458, Apr. 19, 2013; 89 FR 72962, Sept. 9, 2024] § 1201.115 Criteria for granting petition for review. The Board normally will consider only issues raised in a timely filed petition for review. Situations in which the Board may grant a petition for review include, but are not limited to, a showing that: (a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing. (b) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case. (c) The judge's rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case. (d) New and material evidence or legal argument is available that, despite the petitioner's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. (e) Notwithstanding the above provisions in this section, the Board reserves the authority to consider any issue in an appeal before it. [77 FR 62369, Oct. 12, 2012, as amended at 89 FR 72963, Sept. 9, 2024] § 1201.116 Compliance with orders for interim relief. (a) Certification of compliance. (i) Providing the required interim relief; or (ii) Satisfying the requirements of 5 U.S.C. 7701 (2) Evidence of its compliance must accompany its petition for review. Failure by an agency to provide the certification and evidence required by this section with its petition for review may result in the dismissal of the agency's petition for review. (b) Allegation of noncompliance in petition for review. 7701 (c) Request for dismissal for noncompliance with interim relief order. (d) Back pay and attorney fees. [89 FR 72963, Sept. 9, 2024] § 1201.117 Board decisions; procedures for review or reopening. (a) In any case that is reviewed, or reopened at the Board's discretion pursuant to § 1201.118, the Board may: (1) Issue a decision that decides the case; (2) Hear oral arguments; (3) Require that briefs be filed; (4) Remand the appeal so that the judge may take further testimony or evidence or make further findings or conclusions; or (5) Take any other action necessary for final disposition of the case. (b) The Board may affirm, reverse, modify, or vacate the initial decision of the judge, in whole or in part. The Board may issue a final decision and, when appropriate, order a date for compliance with that decision. (c) The Board may issue a decision in the form of a precedential Opinion and Order or a nonprecedential Order. (1) Opinion and Order. (2) Nonprecedential Orders. [76 FR 60707, Sept. 30, 2011, as amended at 77 FR 62370, Oct. 12, 2012; 89 FR 72964, Sept. 9, 2024] § 1201.118 Board reopening of final decisions. Regardless of any other provision of this part, the Board may at any time reopen any appeal in which it has issued a final order or in which an initial decision has become the Board's final decision by operation of law. The Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances and generally within a short period of time after the decision becomes final. The parties have no right to request reopening and no right to a response from the Board on a request for reopening. Any response to a request for reopening from the Office of the Clerk of the Board does not constitute a final order or decision of the Board, and thus is not subject to judicial review under 5 U.S.C. 7703 or § 1201.120. [89 FR 72964, Sept. 9, 2024] § 1201.119 OPM petition for reconsideration. (a) Criteria. (1) That the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management, and (2) That the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. (b) Time limit. (c) Briefs. (d) Stays. [54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994, as amended at 77 FR 62370, Oct. 12, 2012] § 1201.120 Judicial review. Any employee or applicant for employment who is adversely affected by a final order or decision of the Board under the provisions of 5 U.S.C. 7703 may obtain judicial review as provided by 5 U.S.C. 7703. As § 1201.175 of this part provides, an appropriate United States district court has jurisdiction over a request for judicial review of cases involving the kinds of discrimination issues described in 5 U.S.C. 7702. [78 FR 39545, July 2, 2013] Subpart D—Procedures for Original Jurisdiction Cases Source: 62 FR 48451, Sept. 16, 1997, unless otherwise noted. General § 1201.121 Scope of jurisdiction; application of subparts B, F, and H. (a) Scope. (b) Application of subparts B, F, and H. (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] Special Counsel Disciplinary Actions § 1201.122 Filing complaint; serving documents on parties. (a) Place of filing. (b) Initial filing and service. (c) Subsequent filings and service. [62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62370, Oct. 12, 2012] § 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 § 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. § 1201.124 Rights; answer to complaint. (a) Responsibilities of Clerk of the Board. (b) Rights. (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. (c) Filing and default. (d) Content. § 1201.125 Administrative law judge. (a) An administrative law judge will hear a disciplinary action complaint brought by the Special Counsel. (b) The administrative law judge will issue an initial decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 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 63 FR 42686, Aug. 11, 1998; 70 FR 30609, May 27, 2005; 78 FR 39545, July 2, 2013] § 1201.126 Final decisions. (a) In any action to discipline an employee, except as provided in paragraph (b) 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 a civil penalty not to exceed $1,365, 5 U.S.C. 1215(a)(3), 7326; 28 U.S.C. 2461 note. (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. [62 FR 48451, Sept. 16, 1997, as amended at 70 FR 30609, May 27, 2005; 78 FR 39545, July 2, 2013; 82 FR 25716, June 5, 2017; 83 FR 1174, Jan. 10, 2018; 84 FR 5584, Feb. 22, 2019; 85 FR 12724, Mar. 4, 2020; 86 FR 7798, Feb. 2, 2021; 87 FR 3176, Jan. 21, 2022; 88 FR 4080, Jan. 24, 2023; 89 FR 1330, Feb. 14, 2024; 90 FR 34348, July 22, 2025] § 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 § 1201.128 Filing complaint; serving documents on parties. (a) Place of filing. (b) Initial filing and service. (c) Subsequent filings and service. [62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62370, Oct. 12, 2012] § 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 § 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 Counsel and the respondent agency to file briefs, memoranda, or both in any corrective action complaint the Special Counsel brings before the Board. § 1201.130 Rights; answer to complaint. (a) Rights. (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. (c) Content. § 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 § 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 §§ 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] § 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) or 2302(b)(9)(A)(i), (B), (C), or (D), the judge, or the Board on petition for review, will order appropriate corrective action if the Special Counsel demonstrates that a disclosure or protected activity described under 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) 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 or protected activity. 5 U.S.C. 1214(b)(4)(B). [62 FR 48451, Sept. 16, 1997, as amended at 78 FR 39545, July 2, 2013] § 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 as provided by 5 U.S.C. 7703. [78 FR 39545, July 2, 2013] Special Counsel Requests for Stays § 1201.134 Deciding official; filing stay request; serving documents on parties. (a) Request to stay personnel action. (b) Deciding official. (c) Place of filing. (d) Initial filing and service. (e) Subsequent filings and service. [62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998; 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62370, Oct. 12, 2012] § 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. § 1201.136 Action on stay request. (a) Initial stay. (b) Extension of stay. (c) Evidence of compliance with a stay. (d) Termination of stay. (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. [62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998] Actions Against Administrative Law Judges § 1201.137 Covered actions; filing complaint; serving documents on parties. (a) Covered actions. (1) Removal; (2) Suspension; (3) Reduction in grade; (4) Reduction in pay; and (5) Furlough of 30 days or less. (b) Place of filing. (c) Initial filing and service. (d) Subsequent filings and service. [62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62370, Oct. 12, 2012] § 1201.138 Contents of complaint. A complaint filed under this section must describe with particularity the facts that support the proposed agency action. § 1201.139 Rights; answer to complaint. (a) Responsibilities of Clerk of the Board. (b) Rights. (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. (c) Filing and default. (d) Content. § 1201.140 Judge; requirement for finding of good cause. (a) Judge. (2) The judge will issue an initial decision pursuant to 5 U.S.C. 557. The applicable provisions of §§ 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. § 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. § 1201.142 Actions filed by administrative law judges. An administrative law judge who alleges a constructive removal or other action by an agency in violation of 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The filing and service requirements of § 1201.137 of this part apply. Such complaints shall be adjudicated in the same manner as agency complaints under this subpart. [77 FR 62370, Oct. 12, 2012] Removal From the Senior Executive Service § 1201.143 Right to hearing; filing complaint; serving documents on parties. (a) Right to hearing. (b) Place of filing. (c) Initial filing and service. (d) Subsequent filings and service. [62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62371, Oct. 12, 2012] § 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 § 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. § 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 § 1201.143(a) of this part. The removal action will not be delayed as a result of the hearing. Requests for Protective Orders § 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 § 1201.4(a) of this part, to rule on the motion. § 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 § 1201.55(d) of this part. § 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. Subpart E—Procedures for Cases Involving Allegations of Discrimination § 1201.151 Scope and policy. (a) Scope. (2) “Prohibited discrimination,” as that term is 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 paragraphs (a)(2) (i) through (iv) of this section. (b) Policy. § 1201.152 Compliance with subpart B procedures. Unless this subpart expressly provides otherwise, all actions involving allegations of prohibited discrimination must comply with the regulations that are included in subpart B of this part. § 1201.153 Contents of appeal. (a) Contents. (1) The appeal must state that there was discrimination in connection with the matter appealed, and it must state specifically how the agency discriminated against the appellant; and (2) The appeal must state whether the appellant has filed a grievance under a negotiated grievance procedure or a formal discrimination complaint with any agency regarding the matter being appealed to the Board. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the complaint or grievance. (b) Use of Board form or Internet filing option. https://e-appeal.mspb.gov http://www.mspb.gov [54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004; 77 FR 62371, Oct. 12, 2012] § 1201.154 Time for filing appeal. For purposes of this section, the date an appellant receives the agency's decision is determined according to the standard set forth at 1201.22(b)(3) of this part. Appellants who file appeals raising issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits: (a) Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision on the appealable action, whichever is later. (b) If the appellant has filed a timely formal complaint of discrimination with the agency: (1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or (2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue. (c) If the appellant files an appeal prematurely under this subpart, the judge will dismiss the appeal without prejudice to its later refiling under § 1201.22 of this part. If holding the appeal for a short time would allow it to become timely, the judge may hold the appeal rather than dismiss it. [54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 65 FR 25624, May 3, 2000; 73 FR 6834, Feb. 6, 2008; 77 FR 62371, Oct. 12, 2012] § 1201.155 Requests for review of final grievance or arbitrator's decisions. (a) Source and applicability. (2) This section does not apply to employees of the Postal Service or to other employees excluded from the coverage of the Federal labor management laws at chapter 71 of title 5, United States Code. (b) When filed. (c) Scope of Board review. (d) Contents. (1) A statement of the grounds on which review is requested; (2) References to evidence of record or rulings related to the issues before the Board; (3) Arguments in support of the stated grounds that refer specifically to relevant documents and that include relevant citations of authority; and (4) Legible copies of the final grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or recording of the hearing. (e) Development of the record. (f) Closing of the record. (g) Petition for enforcement. [77 FR 62371, Oct. 12, 2012, as amended at 89 FR 72964, Sept. 9, 2024] § 1201.156 Time for processing appeals involving allegations of discrimination. (a) Issue raised in appeal. (b) Issue not raised in appeal. (c) Discrimination issue remanded to agency. § 1201.157 Notice of right to judicial review. Any final decision of the Board under 5 U.S.C. 7702 will notify the appellant of his or her right, within 30 days after receiving the Board's final decision, to petition the Equal Employment Opportunity Commission to consider the Board's decision, or to file a civil action in an appropriate United States district court. If an appellant elects to waive the discrimination issue, an appeal may be filed with the United States Court of Appeals for the Federal Circuit as stated in § 1201.120 of this part. [54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998] Review of Board Decision § 1201.161 Action by the Equal Employment Opportunity Commission; judicial review. (a) Time limit for determination. (b) Judicial review. (1) The date on which the decision is issued, if the appellant does not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or (2) The date of the Commission's decision that it will not consider the petition filed under 5 U.S.C. 7702(b)(2). (c) Commission processing and time limits. (1) Concur in the decision of the Board; or (2) Issue in writing and forward to the Board for its action under § 1201.162 of this subpart another decision, which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law: (i) The decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive related to prohibited discrimination; or (ii) The evidence in the record as a whole does not support the decision involving that provision. (d) Transmittal of record. (e) Development of additional evidence. (f) Commission concurrence in Board decision. § 1201.162 Board action on the Commission decision; judicial review. (a) Board decision. (1) Concur and adopt in whole the decision of the Commission; or (2) To the extent that the Board finds that, as a matter of law: (i) The Commission decision is based on an incorrect interpretation of any provision of any civil service law, rule, regulation, or policy directive, or (ii) The evidence in the record as a whole does not support the Commission decision involving that provision, it may reaffirm the decision of the Board. In doing so, it may make revisions in the decision that it determines are appropriate. (b) Judicial review. Special Panel § 1201.171 Referral of case to Special Panel. If the Board reaffirms its decision under § 1201.162(a)(2) of this part with or without modification, it will certify the matter immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon certification, the Board, within 5 days (excluding Saturdays, Sundays, and Federal holidays), will transmit the administrative record in the proceeding to the Chairman of the Special Panel and to the Commission. That record will include the following: (a) The factual record compiled under this section, which will include a transcript of any hearing; (b) The decisions issued by the Board and the Commission under 5 U.S.C. 7702; and (c) A transcript of oral arguments made, or legal briefs filed, before the Board or the Commission. § 1201.172 Organization of Special Panel; designation of members. (a) A Special Panel is composed of: (1) A Chairman, appointed by the President with the advice and consent of the Senate, whose term is six (6) years; (2) One member of the Board, designated by the Chairman of the Board each time a Panel is convened; (3) One member of the Commission, designated by the Chairman of the Commission each time a Panel is convened. (b) Designation of Special Panel members Time of designation. (2) Manner of designation. § 1201.173 Practices and procedures of Special Panel. (a) Scope. (b) Suspension of rules. (c) Time limit for proceedings. (d) Administrative assistance to the Special Panel. (2) Assistance will include, but is not limited to, processing vouchers for pay and travel expenses. (3) The Board and the Commission are responsible for all administrative costs the Special Panel incurs, and, to the extent practicable, they will divide equally the costs of providing administrative assistance. If the Board and the Commission disagree on the manner in which costs are to be divided, the Chairman of the Special Panel will resolve the disagreement. (e) Maintaining the official record. (f) Filing and service of pleadings. (2) A certificate of service specifying how and when service was made must accompany all submissions of the parties. (3) Service may be made by mail or by personal delivery during the Board's normal business hours (8:30 a.m. to 5:00 p.m.). Because of the short statutory time limit for processing these cases, parties must file their submissions by overnight Express Mail, provided by the U.S. Postal Service, if they file their submissions by mail. (4) A submission filed by Express Mail is considered to have been filed on the date of the Express Mail Order. A submission that is delivered personally is considered to have been filed on the date the Office of the Clerk of the Board receives it. (g) Briefs and responsive pleadings. (h) Oral argument. (i) Postargument submission. (j) Procedural matters. (k) Electronic filing. [54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004] § 1201.174 Enforcing the Special Panel decision. The Board, upon receipt of the decision of the Special Panel, will order the agency concerned to take any action appropriate to carry out the decision of the Panel. The Board's regulations regarding enforcement of a final order of the Board apply to this matter. These regulations are set out in subpart F of this part. § 1201.175 Judicial review of cases decided under 5 U.S.C. 7702. (a) Place and type of review. (b) Time for filing request. Subpart F—Enforcement of Final Decisions and Orders § 1201.181 Authority and explanation. (a) Authority. (b) Requirements for parties. [77 FR 62371, Oct. 12, 2012] § 1201.182 Petition for enforcement. (a) Appellate jurisdiction. (b) Original jurisdiction. (c) Petition by an employee other than a party. (2) Under § 1201.33(c) of this part, a nonparty witness who has obtained an order from a judge that his or her employing agency provide the witness with official time may petition the Board for enforcement of the order. (3) Under § 1201.37(e) of this part, a nonparty witness who has obtained an order requiring the payment of witness fees and travel costs may petition the Board for enforcement of the order. (4) Under § 1201.55(d) of this part, a nonparty witness or other individual who has obtained a protective order from a judge during the course of a Board proceeding for protection from harassment may petition the Board for enforcement of the order. (5) A petition for enforcement under paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party's representative. If the petition is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the petition. [54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994; 62 FR 48935, Sept. 18, 1997; 73 FR 6834, Feb. 6, 2008; 77 FR 62371, Oct. 12, 2012; 89 FR 72964, Sept. 9, 2024] § 1201.183 Procedures for processing petitions for enforcement. (a) Initial processing of a petition for enforcement. (i) Evidence of compliance, including a narrative explanation of the calculation of back pay and other benefits, and supporting documents; (ii) Evidence and/or a statement of the compliance actions that are in process and/or remain to be taken, along with a schedule for accomplishing full compliance within a reasonable period; or (iii) A statement showing good cause for the failure to comply completely with the final decision or order of the Board, or with the terms of an applicable settlement agreement. (2) The party that filed the petition may respond to the alleged noncomplying party's submission within 10 days after the date of service of the submission. The parties must serve copies of their pleadings on each other as required under § 1201.26(b)(2). (3) If a party files a petition for enforcement seeking compliance with a final Board decision or order, the alleged noncomplying party generally has the burden of proving its compliance by a preponderance of the evidence. However, if any party files a petition for enforcement seeking compliance with the terms of a settlement agreement that has been entered into the Board's record for purposes of enforcement, that party has the burden of proving the other party's breach of the settlement agreement by a preponderance of the evidence. (4) If the agency is the alleged noncomplying party, it shall submit the name, title, grade, and address of the agency official charged with complying with the Board's final decision or order, and inform such official in writing of the potential sanction for noncompliance as set forth in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts that it is has fully complied. The agency must further submit a current initial contact email address that is regularly checked to ensure receipt of all information regarding the allegations of compliance. The agency must advise the Board of any subsequent change to the identity and/or location of the designated agency official during the pendency of any compliance proceeding. In the absence of this information, the Board will presume that the highest-ranking agency official who is not appointed by the President by and with the consent of the Senate, is charged with compliance. (5) Discovery may be pursued in accordance with the procedures set forth at §§ 1201.71 through 1201.75, except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement. (6) The judge may convene a hearing to resolve compliance issues. (7) If the judge finds that the alleged noncomplying party has fully complied with the final Board decision or order at issue, or with the applicable settlement agreement entered into the Board's record for purposes of enforcement, he or she will issue an initial decision to that effect. That decision will be subject to the procedures for petitions for review by the Board under subpart C of this part, and subject to judicial review under § 1201.120. (8) If the judge finds that the alleged noncomplying party has not complied, in whole or in part, with the final Board decision or order at issue, or with the applicable settlement agreement entered into the Board's record for purposes of enforcement, he or she will issue an initial decision: (i) Directing the noncomplying party to take the specific actions required by the final Board decision or order at issue, or required under the applicable settlement agreement entered into the Board's record for purposes of enforcement; or (ii) Upon the request of the party seeking compliance where the judge finds a material breach, rescinding the applicable settlement agreement and reinstating the underlying matter on appeal. (9) An initial decision issued under paragraph (a)(8) of this section will be subject to the procedures for petitions for review by the Board under subpart C of this part, but not subject to judicial review under § 1201.120. (10) A copy of an initial decision finding full or partial noncompliance with a final Board decision or order, or a settlement agreement that has been entered into the Board's record for purposes of enforcement will be served on the designated agency official. (b) Processing after a finding of noncompliance that directs specific action. (i) To the extent that the noncomplying party agrees to take some or all of the actions required by the initial decision, the party must, within the time limit for filing a petition for review under § 1201.114(e), provide the Clerk of the Board with a statement of compliance certifying that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions. The narrative statement must explain in detail why the evidence of compliance satisfies the requirements set forth in the initial decision. The party seeking compliance may file evidence and argument in response to any statement of compliance within 20 days of the date of service of the statement of compliance. (ii) To the extent that the noncomplying party declines to take some or all of the actions required by the initial decision, the party must file a petition for review under the provisions of §§ 1201.114 and 1201.115. (iii) A statement of compliance and a petition for review, as described in the two preceding paragraphs, may be filed separately or as part of a single pleading. (2) If an initial decision described under paragraph (a)(8)(i) of this section is issued, the party seeking compliance may also file a petition for review of an initial decision's finding of partial compliance with the Board's final decision or order, or with an applicable settlement agreement entered into the Board's record for purposes of enforcement. (c) Consideration by the Board. (2) The Board's final decision on the issues of compliance is subject to judicial review under 1201.120 of this part. (d) Burdens of proof. (e) Certification to the Comptroller General. (f) Effect of Special Counsel's action or failure to act. (g) Requests for attorney fees. [54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998; 77 FR 62372, Oct. 12, 2012; 80 FR 21153, Apr. 17, 2015; 80 FR 66788, Oct. 30, 2015; 89 FR 72964, Sept. 9. 2024] Subpart G—Savings Provisions § 1201.191 Savings provisions. (a) Civil Service Reform Act of 1978 (Pub.L. 95-454) Scope. (2) Administrative proceedings and appeals therefrom. (3) Explanation. i.e. (b) Whistleblower Protection Act of 1989 (Pub. L. 101-12) Scope. (2) Administrative proceedings and appeals therefrom. Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Consequential, Liquidated, and Compensatory) Source: 63 FR 41179, Aug. 3, 1998, unless otherwise noted. § 1201.201 Statement of purpose. (a) This subpart governs Board proceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, compensatory damages, and liquidated damages. (b) There are seven statutory provisions covering attorney fee awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most requests for attorney fees will be governed by § 1201.202(a)(1). There are, however, other attorney fee provisions that apply only to specific kinds of cases. For example, § 1201.202(a)(4) applies only to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6) apply only to corrective and disciplinary action cases brought by the Special Counsel. Section 1201.202(a)(7) applies only to appeals brought under the Uniformed Services Employment and Reemployment Rights Act. (c) An award of consequential damages is authorized in only two situations: Where the Board orders corrective action in a whistleblower appeal under 5 U.S.C. 1221, and where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. Consequential damages include such items as medical costs and travel expenses, and other costs as determined by the Board through case law. (d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an award of compensatory damages to a prevailing party who is found to have been intentionally discriminated against based on race, color, religion, sex, national origin, or disability. The Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective action. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. (e) An award equal to back pay shall be awarded as liquidated damages under 5 U.S.C. 3330c when the Board or a court determines an agency willfully violated an appellant's veterans' preference rights. [63 FR 41179, Aug. 3, 1998, as amended at 77 FR 62372, Oct. 12, 2012; 78 FR 39545, July 2, 2013] § 1201.202 Authority for awards. (a) Awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable). (1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701 or an agency action against an administrative law judge under 5 U.S.C. 7521, and an award is warranted in the interest of justice; (2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C. 7121(d), or an agency action against an administrative law judge under 5 U.S.C. 7521, and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1); (3) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(2), where the appellant is the prevailing party in an appeal under 5 U.S.C. 7701 and the Board's decision is based on a finding of a prohibited personnel practice; (4) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(1)(B), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies; (5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214; (6) Attorney fees, costs and damages as authorized by 5 U.S.C. 1214(h) where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214 and determines that the employee has been subjected to an agency investigation that was commenced, expanded or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action. (7) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the respondent is the prevailing party in a Special Counsel complaint for disciplinary action under 5 U.S.C. 1215; (8) Attorney fees, expert witness fees, and litigation expenses, as authorized by the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324(c)(4); and (9) Attorney fees, expert witness fees, and other litigation expenses, as authorized by the Veterans Employment Opportunities Act; 5 U.S.C. 3330c(b). (b) Awards of consequential damages. (1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies; and (2) As authorized by 5 U.S.C. 1221(g)(4) where the Board orders corrective action to correct a prohibited personnel practice and determines that the employee has been subjected to an agency investigation that was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action. (3) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. (4) As authorized by 5 U.S.C. 1214(h) where the Board orders corrective action to correct a prohibited personnel practice and determines that the employee has been subjected to an agency investigation that was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action. (c) Awards of compensatory damages. (d) Awards of liquidated damages. (e) Definitions. (1) A proceeding on the merits (2) An addendum proceeding [63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000; 77 FR 62373, Oct. 12, 2012; 78 FR 39546, July 2, 2013] § 1201.203 Proceedings for attorney fees. (a) Form and content of request. (1) Accurate and current time records; (2) A copy of the terms of the fee agreement (if any); (3) A statement of the attorney's customary billing rate for similar work, with evidence that that rate is consistent with the prevailing community rate for similar services in the community in which the attorney ordinarily practices; and (4) An established attorney-client relationship. (b) Addendum proceeding. (c) Place of filing. (d) Time of filing. (e) Service. (f) Hearing; applicability of subpart B. (g) Initial decision; review by the Board. [63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000] § 1201.204 Proceedings for consequential, liquidated, or compensatory damages. (a) Addendum proceeding. (2) A judge may, either on their own motion or on the motion of a party, consider a request for damages in a proceeding on the merits when the judge determines that such action is in the interest of the parties and will promote efficiency and economy in adjudication. (b) Initiation of addendum proceeding Time for making request. (2) Place of filing. (3) Form and content of request. (4) Service. (5) Hearing; applicability of subpart B. (6) Initial decision; review by the Board. (7) Request for damages made in proceeding before the Board. (i) Consider both the merits of the case and the request for damages and issue a final decision; or (ii) Remand the case to a judge for a new initial decision, either on the request for damages only or on both the merits and the request for damages. (8) EEOC review of decision on compensatory damages. [89 FR 72965, Sept. 9, 2024] § 1201.205 Judicial review. A final Board decision under this subpart is subject to judicial review as provided under 5 U.S.C. 7703. Appendix I to Part 1201 [Reserved] Appendix II to Part 1201—Appropriate Regional or Field Office for Filing Appeals All submissions shall be addressed to the Regional Director, if submitted to a regional office, or the Chief Administrative Judge, if submitted to a field office, Merit Systems Protection Board, at the addresses listed below, according to geographic region of the employing agency or as required by § 1201.4(d) of this part. Address of Appropriate Regional or Field Office and Area Served: 1. Atlanta Regional Office, 401 West Peachtree Street NW, 10th floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, (Alabama; Florida; Georgia; Mississippi; South Carolina; and Tennessee). 2. Central Regional Office, 230 South Dearborn Street, 31st Floor, Chicago, Illinois 60604-1669, Facsimile No.: (312) 886-4231, (Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin). 3. Northeastern Regional Office, 1601 Market Street, Suite 1700, Philadelphia, PA 19103, Facsimile No.: (215) 597-3456, (Connecticut; Delaware; Maine; Maryland—except the counties of Montgomery and Prince George's; Massachusetts; New Hampshire; New Jersey; New York; Pennsylvania; Puerto Rico; Rhode Island; Vermont; Virgin Islands; and West Virginia). 4. Washington Regional Office, 1615 M Street NW, Washington, DC 20419, Facsimile No.: (703) 313-2031, (Maryland—counties of Montgomery and Prince George's; North Carolina; Virginia; Washington, DC; and all overseas areas not otherwise covered). 5. Western Regional Office, 1301 Clay Street, Suite 1380N, Oakland, California 94612-5217, Facsimile No.: (510) 273-7136, (Alaska; California; Hawaii; Idaho; Nevada; Oregon; Washington; and Pacific overseas areas). 5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228-2211, Facsimile No.: (303) 969-5109, (Arizona; Colorado; Kansas—except Kansas City; Montana; Nebraska; New Mexico; North Dakota; South Dakota; Utah; and Wyoming). 6. Dallas Regional Office, 1100 Commerce Street, Room 620, Dallas, Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas; Louisiana; Oklahoma; and Texas). [90 FR 59041, Dec. 18, 2025] Appendix III to Part 1201 [Reserved] Appendix IV to Part 1201—Sample Declaration Under 28 U.S.C.1746 Declaration I, ___________, do hereby declare: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on Date Signature

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