[Congressional Record Volume 141, Number 180 (Tuesday, November 14, 1995)]
[Senate]
[Pages S17012-S17019]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

  Mr. THURMOND. Mr. President, pursuant to section 303 of the 
Congressional Accountability Act of 1995, 2 U.S.C. Sec. 1384(b), a 
notice of proposed rulemaking was submitted by the Office of 
Compliance, U.S. Congress. The notice relates to the procedures for 
consideration and resolution of alleged violations of the laws made 
applicable under part A of title II of the Congressional Accountability 
Act (P.L. 104-1).
  Section 304(b) requires this notice to be printed in the 
Congressional Record, therefore I ask unanimous consent that the notice 
be printed in the Record.
  There being no objection, the notice was ordered to be printed in the 
Record; as follows:

  Office of Compliance--The Congressional Accountability Act of 1995: 
                            Procedural Rules


                     NOTICE OF PROPOSED RULEMAKING

       Summary: The Executive Director of the Office of Compliance 
     is publishing proposed rules to govern the procedures for 
     consideration and resolution of alleged violations of the 
     laws made applicable under Part A of Title II of the 
     Congressional Accountability Act (P.L. 104-1). The proposed 
     rules have been approved by the Board of Directors, Office of 
     Compliance.
       Dates: Comments are due within 30 days after publication of 
     this notice in the Congressional Record.
       Addresses: Submit written comments to the Executive 
     Director, Office of Compliance, Room LA 200, 110 Second 
     Street, S.E., Washington, DC 20540-1999. Those wishing to 
     receive notification of receipt of comments are requested to 
     include a self-addressed, stamped post card. Comments may 
     also be transmitted by facsimile (``FAX'') machine to (202) 
     252-3115. This is not a toll-free call. Copies of comments 
     submitted by the public will be available for review at the 
     Law Library Reading Room, Room LM-201, Law Library of 
     Congress, James Madison Memorial Building, Washington, D.C., 
     Monday through Friday, between the hours of 9:30 a.m. and 
     4:00 p.m.
       For Further Information Contact: Executive Director, Office 
     of Compliance at (202) 252-3100. This notice is also 
     available in the following formats: large print, braille, 
     audio tape, and electronic file on computer disk. Requests 
     for this notice in an alternative format should be made to 
     Mr. Russell Jackson, Director, Service Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, (202) 224-
     2705.
       Supplementary Information: Background--General. The 
     Congressional Accountability Act of 1995 (``CAA''), PL 104-1, 
     was enacted into law on January 23, 1995. In general, the CAA 
     applies the rights and protections of eleven federal labor 
     and employment law statutes to covered employees and 
     employing offices within the legislative branch. Section 301 
     of the CAA establishes the Office of Compliance as an 
     independent office within that branch. Section 303 of the CAA 
     directs that the Executive Director, the chief operating 
     officer of the Office of Compliance, shall, subject to the 
     approval of the Board, adopt rules governing the procedures 
     for the Office of Compliance. The rules that follow establish 
     the procedures by which the Office of Compliance will provide 
     for the consideration and resolution of alleged violations of 
     the laws made applicable under Part A of Title II of the CAA. 
     The rules include procedures for counseling, mediation, and 
     for electing between filing a complaint with the Office of 
     Compliance and filing a civil action in a district court of 
     the United States. The rules also address the procedures for 
     the conduct of hearings held as a result of the filing of a 
     complaint and for appeals to the Board of Directors of the 
     Office of Compliance from Hearing Officer decisions, as well 
     as other matters of general applicability to the dispute 
     resolution process and to the operations of the Office of 
     Compliance.
       The Executive Director invites comment from interested 
     persons on the content of these proposed rules.

            Part I--Office of Compliance Rules of Procedure

                     Subpart A--General Provisions

     Sec. 1.01 Scope and policy
     Sec. 1.02 Definitions
     Sec. 1.03 Filing and Computation of Time
     Sec. 1.04 Availability of Official Information
     Sec. 1.05 Designation of Representative
     Sec. 1.06 Maintenance of Confidentiality
     Sec. 1.01 Scope and policy.
       These rules of the Office of Compliance govern the 
     procedures for consideration and resolution of alleged 
     violations of the laws made applicable under Part A of title 
     II of the Congressional Accountability Act of 1995. The rules 
     include procedures for counseling, mediation, and for 
     electing between filing a complaint with the Office of 
     Compliance and filing a civil action in a district court of 
     the United States. The rules also address the procedures for 
     the conduct of hearings held as a result of the filing of a 
     complaint and for appeals to the Board of Directors of the 
     Office of Compliance from Hearing Officer decisions, as well 
     as other matters of general applicability to the dispute 
     resolution process and to the operations of the Office of 
     Compliance. It is the policy of the Office that these rules 
     shall be applied with due regard to the rights of all parties 
     and in a manner that expedites the resolution of disputes.
     Sec. 1.02 Definitions
       Except as otherwise specifically provided in these rules, 
     for purposes of this Part;
       (a) Act. The term ``Act'' means the Congressional 
     Accountability Act of 1995;
       (b) Covered Employee. The term ``covered employee'' means 
     any employee of
       (1) the House of Representatives;
       (2) the Senate;
       (3) The Capitol Guide Service;
       (4) the Capitol Police;
       (5) the Congressional Budget Office;
       (6) the Office of the Architect of the Capitol;
       (7) the Office of the Attending Physician;
       (8) the Office of Compliance; or
       (9) the Office of Technology Assessment.
       (c) Employee. The term ``employee'' includes an applicant 
     for employment and a former employee.
       (d) Employee of the Office of the Architect of the Capitol. 
     The term ``employee of the Office of the Architect of the 
     Capitol'' includes any employee of the Office of the 
     Architect of the Capitol, the Botanic Garden or the Senate 
     Restaurants.
       (e) Employee of the Capitol Police. The term ``employee of 
     the Capitol Police'' includes any member or officer of the 
     Capitol Police.
       (f) Employee of the House of Representatives. The term 
     ``employee of the House of Representatives'' includes an 
     individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (9) of paragraph 
     (b) above.
       (g) Employee of the Senate. The term ``employee of the 
     Senate'' includes any employee whose pay is disbursed by the 
     Secretary of the Senate, but not any such individual employed 
     by any entity listed in subparagraphs (3) through (9) of 
     paragraph (b) above.
       (h) Employing Office. The term ``employing office'' means:
       (1) the personal office of a Member of the House of 
     Representatives or a Senator;
       (2) a committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       (4) the Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment.
       (i) Party. The term ``party'' means the employee or the 
     employing office or the designated representatives of either 
     of them.
       (j) Office. The term ``Office'' means the Office of 
     Compliance.
       (k) Board. The term ``Board'' means the Board of Directors 
     of the Office of Compliance.
       (l) Chair. The term ``Chair'' means the Chair of the Board 
     of Directors of the Office of Compliance.
       (m) Executive Director. The term ``Executive Director'' 
     means the Executive Director of the Office of Compliance.
       (n) General Counsel. The term ``General Counsel'' means the 
     General Counsel of the Office of Compliance.
       (o) Hearing Officer. The term ``Hearing Officer'' means any 
     individual designated by the Executive Director to preside 
     over a hearing conducted on matters within the Office's 
     jurisdiction.
     Sec. 1.03  Filing and computation of time
       (a) Method of Filing. Documents may be filed in person or 
     by mail, including express, 

[[Page S 17013]]
     overnight and other expedited delivery. Requests for mediation under 
     Section 2.04 and complaints under Section 2.06 of these rules 
     may also be filed by facsimile (FAX) transmission. The 
     original copies of documents filed by FAX must also be mailed 
     to the office no later than the day following FAX 
     transmission. The filing of all documents is subject to the 
     limitations set forth below.
       (1) In Person. A document shall be deemed timely filed if 
     it is hand delivered to the Office in: Adams Building, Room 
     LA 200, 110 Second Street, S.E., Washington, D.C. 20540-1999, 
     before the expiration of the applicable time period.
       (2) Mailing. (a) If mailed, a request for mediation or a 
     complaint is deemed filed on the date of its receipt in the 
     Office of Compliance.
       (b) A document, other than a request for mediation or a 
     complaint, is deemed filed on the date of its postmark or 
     proof of mailing. Parties, including those using franked 
     mail, are responsible for ensuring that any mailed document 
     bears a postmark date or other proof of the actual date of 
     mailing. In the absence of a legible postmark a document will 
     be deemed timely if it is received by the Office at Adams 
     Building, Room LA 200, 110 Second Street, S.E., Washington, 
     D.C. 20540-1999, by mail within five (5) days of the 
     expiration of the applicable filing period.
       (3) Faxing documents. Documents transmitted by FAX machine 
     will be deemed filed on the date received at the Office of 
     Compliance at 202-252-3115. A FAX filing will be timely only 
     if the Office receives the document no later than 5:00 PM 
     Eastern Time on the day that it is due under the applicable 
     filing period. Any party using a FAX machine to file a 
     document bears the responsibility for ensuring both that the 
     document is timely and accurately transmitted and confirming 
     that the Office has received a facsimile of the document. The 
     party or individual filing the document may rely on its FAX 
     status report sheet to show that it filed the document in a 
     timely manner.
       (b) Computation of Time. All time periods in these rules 
     that are stated in terms of days are calendar days unless 
     otherwise noted. However, when the period of time prescribed 
     is five (5) days or less, intermediate Saturdays, Sundays and 
     Federal government holidays shall be excluded in the 
     computation. To compute the number of days for taking any 
     action required or permitted under these rules, the first day 
     shall be the day after the event from which the time period 
     begins to run and the last day for filing or service shall be 
     included in the computation. When the last day falls on a 
     Saturday, Sunday, or federal government holiday, the last day 
     for taking the action shall be the next regular federal 
     government workday.
       (c) Time Allowances for Mailing of Official Notices. 
     Whenever a person or party has the right or is required to do 
     some act within a prescribed period after the service of a 
     notice or other document upon him or her and the notice or 
     document is served by regular mail, five (5) days shall be 
     added to the prescribed period. Only two (2) days shall be 
     added if a document is served by express mail or other form 
     of expedited delivery. When documents are served by certified 
     mail, return receipt requested, the prescribed period shall 
     be calculated from the date of receipt as evidenced by the 
     return receipt.
     Sec. 1.04  Availability of official information
       (a) Policy. It is the policy of the Board, the Office and 
     the General Counsel, except as otherwise ordered by the 
     Board, to make available for public inspection and copying 
     final decisions and orders of the Board and the Office, as 
     specified and described in paragraph (d) below.
       (b) Availability. Any person may examine and copy items 
     described in paragraph (a) above at the Office of Compliance, 
     Adams Building, Room LA200, 110 Second Street, S.E., 
     Washington, D.C. 20540-1999, under conditions prescribed by 
     the Office, including requiring payment for copying costs, 
     and at reasonable times during normal working hours so long 
     as it does not interfere with the efficient operations of the 
     Office. As ordered by the Board, identifying details or other 
     necessary matters may be deleted and placed under seal, and, 
     in each case, the reason for the deletion shall be stated in 
     writing.
       (c) Copies of forms. Copies of blank forms prescribed by 
     the Office for the filing of complaints and other actions or 
     requests may be obtained from the Office.
       (d) Final decisions. Pursuant to Section 416(f) of the Act, 
     a final decision entered by a Hearing Officer or by the Board 
     under Section 405(g) or 406(e) of the Act, which is in favor 
     of the complaining covered employee or reverses a Hearing 
     Officer's decision in favor of a complaining covered 
     employee, shall be made public, except as otherwise ordered 
     by the Board.
     Sec. 1.05  Designation of Representative
       (a) An employee, a witness, or an employing office wishing 
     to be represented by another individual must file with the 
     Office a written notice of designation of representative. The 
     representative may be, but is not required to be, an 
     attorney.
       (b) Service where there is a representative. All service of 
     documents shall be directed to the representative, unless the 
     represented individual specifies otherwise and until such 
     time as that individual notifies the Executive Director of an 
     amendment or revocation of the designation of representative. 
     Where a designation of representative is outstanding, all 
     time limitations for receipt of materials by the represented 
     individual shall be computed in the same manner as for 
     unrepresented individuals with service of the documents, 
     however, directed to the representative, as provided.
     Sec. 1.06  Maintenance of confidentiality
       (a) Policy. In accord with Section 416 of the Act, it is 
     the policy of the Office to maintain, to the fullest extent 
     possible, the confidentiality of the proceedings and of the 
     participants in proceedings conducted under Sections 402, 
     403, 405 and 406 of the Act and these rules.
       (b) At the time that any individual, employing office or 
     party, including a designated representative, becomes a 
     participant in counseling under Section 402, mediation under 
     Section 403, the complaint and hearing process under Section 
     405, or an appeal to the Board under Section 406 of the Act, 
     or any related proceeding, the Office will advise the 
     participant of the confidentiality requirements of Section 
     416 of the Act and these rules and that sanctions might be 
     imposed for a violation of those requirements.

Subpart B--Procedures Applicable to Consideration of Alleged Violations 
 of Part A of Title II of the Congressional Accountability Act of 1995

     Sec. 2.01  Matters Covered by Subpart B
     Sec. 2.02  Requests for Advice and Information
     Sec. 2.03  Counseling
     Sec. 2.04  Mediation
     Sec. 2.05  Election of Proceedings
     Sec. 2.06  Complaints
     Sec. 2.07  Appointment of the Hearing Officer
     Sec. 2.08  Filing, Service and Size Limitations of Motions, 
         Briefs, Responses and other Documents
     Sec. 2.09  Dismissal of Complaint
     Sec. 2.10  Confidentiality
     Sec. 2.11  Filing of Civil Action

     Sec. 2.01  Matters covered by subpart B
       (a) These rules govern the processing of any allegation 
     that Sections 201 through 206 of the Act have been violated 
     and any allegation of intimidation or reprisal prohibited 
     under Section 207 of the Act. Sections 201 through 206 apply 
     to covered employees and employing offices certain rights and 
     protections of the following laws:
       (1) The Fair Labor Standards Act of 1938
       (2) Title VII of the Civil Rights Act of 1964
       (3) The Americans with Disabilities Act of 1990
       (4) The Age Discrimination in Employment Act of 1967
       (5) The Family and Medical Leave Act of 1993
       (6) The Employee Polygraph Protection Act of 1988
       (7) The Worker Adjustment and Retraining Notification Act
       (8) The Rehabilitation Act of 1973
       (9) Chapter 43 (relating to veterans' employment and 
     reemployment) of title 38, United States Code.
       (b) This subpart applies to the covered employees and 
     employing offices as defined in Section 1.02(b) and (h) of 
     these rules and any activities within the coverage of the 
     laws referred to in Section 2.01(a).
     Sec. 2.02  Requests for advice and information
       At any time, an employee or an employing office may seek 
     from the Office informal advice and information on the 
     procedures of the Office and under the Act and information on 
     the protections, rights and responsibilities under the Act 
     and these rules. The Office will maintain the confidentiality 
     of requests for such advice or information.
     Sec. 2.03  Counseling
       (a) Initiating a proceeding; formal request for counseling. 
     In order to initiate a proceeding under these rules, an 
     employee who believes that he or she is covered by the Act 
     shall formally request counseling from the Office regarding 
     an alleged violation of the Act, as referred to in Section 
     2.01(a), above. All formal requests for counseling shall be 
     confidential, unless the employee agrees to waive his or her 
     right to confidentiality under Section 2.03(e)(2), below.
       (b) Who may request counseling. A covered employee who 
     believes that he or she has been or is the subject of a 
     violation of the Act as referred to in Section 2.01(a) may 
     formally request counseling.
       (c) When, how and where to request counseling. A formal 
     request for counseling:
       (1) Shall be made not later than 180 days after the date of 
     the alleged violation of the Act;
       (2) May be made to the Office in person, by telephone, or 
     by written request;
       (3) A request for counseling shall be directed to: Office 
     of Compliance, Adams Building, Room LA 200, 110 Second 
     Street, S.E., Washington, D.C. 20540-1999; telephone: (202) 
     252-3100; FAX (202) 252-3115.
       (d) Purpose of counseling period. The purpose of the 
     counseling period shall be: to discuss the employee's 
     concerns and elicit information regarding the matter(s) which 
     the employee believes constitute a violation(s) of the Act; 
     to advise the employee of his or her rights and 
     responsibilities under the Act and the procedures of the 
     Office under these rules; to evaluate the matter; and to 
     assist the employee in achieving an early resolution of the 
     matter, if possible.
       (e) Confidentiality and waiver. (1) Absent a waiver under 
     paragraph 2, below, all counseling shall be strictly 
     confidential. Nothing in these rules shall prevent a 
     counselor from consulting with personnel within the Office 
     concerning a matter in counseling, except 

[[Page S 17014]]
     that, when the person being counseled is an employee of the Office, the 
     counselor shall not consult with any individual within the 
     Office who might be a party or witness without the consent of 
     the person requesting counseling. Nothing contained in these 
     rules shall prevent the Executive Director from reporting 
     statistical information to the Senate and House of 
     Representatives, so long as that statistical information does 
     not reveal the identity of the employees involved or of 
     employing offices that are the subject of a request for 
     counseling.
       (2) The employee and Office may agree to waive 
     confidentiality of the counseling process for the limited 
     purpose of contacting the employing office to obtain 
     information to be used in counseling the employee or to 
     attempt a resolution of any disputed matter(s). Such a 
     limited waiver must be written on the form supplied by the 
     Office and signed by both the counselor and the employee.
       (f) Role of Counselor in informing employee of his or her 
     rights and responsibilities. The counselor will provide the 
     employee with appropriate information concerning rights and 
     responsibilities under the Act and these rules.
       (g) Role of Counselor in defining concerns. The counselor 
     may:
       (1) obtain the name, home and office mailing addresses, and 
     home and office telephone numbers of the person being 
     counseled;
       (2) obtain the name and title of the person(s) whom the 
     employee claims has engaged in a violation of the Act and the 
     employing office in which this person(s) works;
       (3) obtain a detailed description of the action(s) at 
     issue, including all relevant dates, and the covered 
     employee's reason(s) for believing that a violation may have 
     occurred;
       (4) inquire as to the relief sought by the covered 
     employee;
       (5) obtain the name, address and telephone number of the 
     employee's representative, if any, and whether the 
     representative is an attorney.
       (h) Role of Counselor in attempting informal resolution. In 
     order to attempt to resolve the matter brought to the 
     attention of the counselor, the counselor must obtain a 
     waiver of confidentiality pursuant to Section 2.03(e)(2) of 
     this chapter. If the employee executes such a waiver, the 
     counselor may:
       (1) conduct a limited inquiry for the purpose of obtaining 
     any information necessary to attempt an informal resolution 
     or formal settlement;
       (2) reduce to writing any formal settlement achieved and 
     secure the signatures of the employee, his or her 
     representative, if any, and a member of the employing office 
     who is authorized to enter into a settlement on the employing 
     office's behalf; and, pursuant to Section 414 of the Act and 
     Section 9.03 of these rules, seek the approval of the 
     Executive Director.
       (i) Counselor not a representative. The counselor shall 
     inform the person being counseled that the counselor does not 
     represent either the employing office or the employee. The 
     counselor provides information and may act as a third-party 
     intermediary with the goals of increasing the individual's 
     understanding of his or her rights and responsibilities under 
     the Act and of promoting the early resolution of the matter.
       (j) Duration of counseling period. The period for 
     counseling shall be 30 days, beginning on the date that the 
     request for counseling is received by the Office unless the 
     employee and the Office agree to reduce the period.
       (k) Duty to proceed. An employee who initiates a proceeding 
     under this part shall be responsible at all times for 
     proceeding, regardless of whether he or she has designated a 
     representative. An employee, however, may withdraw from 
     counseling at any time without prejudice to the employee's 
     right to reinstate counseling regarding the same matter, 
     provided that counseling on a single matter will not last 
     longer than a total of 30 days.
       (l) Conclusion of the counseling period and notice. The 
     Executive Director shall notify the employee in writing of 
     the end of the counseling period, by certified mail, return 
     receipt requested. The Executive Director, as part of the 
     notification of the end of the counseling period, shall 
     inform the employee of the right to file with the Office a 
     request for mediation within 15 days after receipt by the 
     employee of the notice of the end of the counseling period.
       (m) Employees of the Office of the Architect of the Capitol 
     and Capitol Police.
       (1) Where an employee of the Office of the Architect of the 
     Capitol or of the Capitol Police requests counseling under 
     the Act and these rules, the Executive Director may recommend 
     that the employee use the grievance procedures of the 
     Architect of the Capitol or the Capitol Police. Pursuant to 
     Section 401 of the Act and by agreement with the Architect of 
     the Capitol and the Capitol Police Board, when the Executive 
     Director makes such a recommendation, the following 
     procedures shall apply:
       (A) The Executive Director shall recommend to the employee 
     that the employee use the procedures of the Architect or of 
     the Capitol Police Board, as appropriate, for a period 
     generally up to 90 days, unless the Executive Director 
     determines a longer period is appropriate for resolution of 
     the employee's complaint through the internal procedures of 
     the Architect or the Capitol Police Board;
       (B) After having contacted the Office and having utilized 
     the grievance procedures of the Architect or to the Capitol 
     Police Board, the employee may return to the procedures under 
     these rules:
       (i) after the expiration of the period recommended by the 
     Executive Director, if the matter has not been resolved; or
       (ii) within 20 days after receiving a final decision as a 
     result of the procedures of the Architect or of the Capitol 
     Police Board.
       (C) The period during which the matter is pending in the 
     internal procedure shall not count against the time available 
     for counseling or mediation under the Act. If the grievance 
     is resolved to the employee's satisfaction, the Office will 
     consider the case to be closed in its official files.
       (2) Notice to employees who have not initiated counseling 
     with the Office. When an employee of the Architect of the 
     Capitol or the Capitol Police raises in the internal 
     procedures of the Architect or of the Capitol Police Board an 
     allegation which may also be raised under the procedures set 
     forth in this subpart, the Architect or the Capitol Police 
     Board should advise the employee in writing that a request 
     for counseling about the allegation must be initiated with 
     the Office within 180 days after the alleged violation of law 
     occurred if the employee intends to use the procedures of the 
     Office.
       (3) Notice in final decisions when employees have not 
     initiated counseling with the Office. When an employee raises 
     in the internal procedures of the Architect or of the Capitol 
     Police Board an allegation which may also be raised under the 
     procedures set forth in this subpart, any final decision 
     pursuant to the procedures of the Architect of the Capitol or 
     of the Capitol Police Board should include notice to the 
     employee of his or her right to initiate the procedures under 
     these rules within 180 days after the alleged violation 
     occurred.
       (4) Notice in final decisions when there has been a 
     recommendation by the Executive Director. When the Executive 
     Director has made a recommendation under paragraph 1 above, 
     the Architect or the Capitol Police Board should include 
     notice to the employee of his or her right to resume the 
     procedures under these rules within 20 days after service on 
     the employee of the final decision and shall transmit a copy 
     of the final decision, settlement agreement, or other final 
     decision, settlement agreement, or other final disposition of 
     the case to the Executive Director.
     Sec. 2.04  Mediation
       (a) Explanation. Mediation is a process in which employees, 
     employing offices and their representatives meet separately 
     and/or jointly with a neutral trained to assist them in 
     resolving disputes. As parties to the mediation, employees, 
     employing offices and their representatives openly discuss 
     alternatives to continuing their dispute, including any and 
     all possibilities of reaching a voluntary, mutually 
     satisfactory resolution. The neutral has no power to impose a 
     specific resolution, and the mediation process, whether or 
     not a resolution is reached, is strictly confidential, 
     pursuant to Section 416 of the Act.
       (b) Initiation. Not more than 15 days after receipt by the 
     employee of the notice of the conclusion of the counseling 
     period under Section 2.03(l), the employee may file with the 
     Office a written request for mediation. The request for 
     mediation shall contain the employee's name, address, and 
     telephone number, and the name of the employing office. 
     Failure to request mediation within the prescribed period 
     will preclude the employee's further pursuit of his or her 
     claim.
       (c) Notice of commencement of the mediation period. The 
     Office shall notify the employing office or its designated 
     representative of the commencement of the mediation period.
       (d) Selection of Neutrals; Disqualification. Upon receipt 
     of the request for mediation, the Executive Director shall 
     assign one or more neutrals to commence the mediation 
     process. In the event that a neutral considers him or herself 
     unable to perform in a neutral role in a given situation, he 
     or she shall withdraw from the matter and immediately shall 
     notify the Office of the withdrawal. Any party may ask the 
     Office to disqualify a neutral by filing a written request, 
     including the reasons for such request, with the Executive 
     Director. This request shall be filed as soon as the party 
     has reason to believe there is a basis for disqualification. 
     The Executive Director's decision on this request shall be 
     final and unreviewable.
       (e) Duration and Extension. (1) The mediation period shall 
     be 30 days beginning on the date the request for mediation is 
     received, unless the Office grants an extension.
       (2) The Office may extend the mediation period upon the 
     joint request of the parties. The request shall be written 
     and filed with the Office no later than the 28th day of the 
     mediation period. The request shall set forth the joint 
     nature of the request and the reasons therefor, and specify 
     when the parties expect to conclude their discussions. 
     Requests for additional extensions may be made in the same 
     manner. Approval of any extensions shall be within the sole 
     discretion of the Office.
       (f) Procedures. (1) The Neutral's Role. After assignment of 
     the case, the neutral will promptly contact the parties. The 
     neutral has the responsibility to conduct the mediation, 
     including deciding how many meetings are necessary and who 
     may participate in each meeting. The neutral may accept 
     written submissions from the parties.
       (2) The Agreement to Mediate. At the commencement of the 
     mediation, the neutral 

[[Page S 17015]]
     will ask the parties to sign an agreement ("the Agreement to Mediate") 
     to adhere to the confidentiality of the process. The 
     Agreement to Mediate will also provide that the parties to 
     the mediation will not seek to have the counselor or the 
     neutral testify or otherwise present evidence in any 
     subsequent civil action under Section 408 of the Act or any 
     other proceeding.
       (g) Who may participate. The covered employee, the 
     employing office, their respective representatives, and the 
     Office may meet, jointly or separately, with the neutral. A 
     representative of an employing office who has actual 
     authority to agree to a settlement agreement on behalf of the 
     employing office must be present at the mediation or must be 
     immediately accessible by telephone during the mediation.
       (h) Conclusion of the Mediation Period and Notice. If, at 
     the end of the mediation period, the parties have not 
     resolved the matter that forms the basis of the request for 
     mediation, the Office shall provide the employee and the 
     employing office, and their representatives, with written 
     notice that the mediation period has concluded. At the same 
     time, the Office will notify the employee of his or her right 
     to elect to file a complaint with the Office in accordance 
     with Section 405 of the Act and Section 2.06 of these rules 
     or to file a civil action pursuant to Section 408 of the Act 
     and Section 2.11 of these rules.
       (i) Independence of the Mediation Process and the Neutral. 
     The Office will maintain the independence of the mediation 
     process and the neutral. No individual, who is appointed by 
     the Executive Director to mediate, may conduct or aid in a 
     hearing conducted under Section 405 of the Act with respect 
     to the same matter or shall be subject to subpoena or any 
     other compulsory process with respect to the same matter.
       (j) Confidentiality. Except as necessary to consult with 
     the parties, their counsel or other designated 
     representatives, the parties to the mediation, the neutral, 
     and the Office shall not disclose, in whole or in part, any 
     information or records obtained through, or prepared 
     specifically for, the mediation process. This rule shall not 
     preclude a neutral from consulting with the Office, except 
     that a neutral shall not consult with a party or witness 
     within the Office when the covered employee is an employee of 
     the Office. This rule shall also not preclude the Office from 
     reporting statistical information that does not reveal the 
     identity of the employees or employing offices involved in 
     the mediation. All parties to the action and their 
     representatives will be advised of the confidentiality 
     requirements of this process and of the sanctions that might 
     be imposed for violating these requirements.
     Sec. 2.05  Election of proceeding
       (a) Pursuant to Section 404 of the Act, not later than 90 
     days after a covered employee receives notice of the end of 
     mediation under Section 2.04(h) of these rules, but no sooner 
     than 30 days after that date, the covered employee may 
     either:
       File a complaint with the Office in accordance with Section 
     405 of the Act and the procedure set out in Section 2.06, 
     below; or
       File a civil action in accordance with Section 408 of the 
     Act and Section 2.11 below in the United States District 
     Court for the district in which the employee is employed or 
     for the District of Columbia.
       (b) A covered employee who files a civil action pursuant to 
     Section 2.11, may not thereafter file a complaint under 
     Section 2.06 on the same matter.
     Sec. 2.06  Complaints
       (a) Who may file. An employee who has completed mediation 
     under Section 2.04 may timely file a complaint with the 
     Office.
       (b) When to file. A complaint may be filed no sooner than 
     30 days after the date of receipt of the notice under Section 
     2.04(h), but no later than 90 days after that notice.
       (c) Form and Contents. A complaint shall be written or 
     typed on a complaint form available from the Office. All 
     complaints shall be signed by the covered employee, or his or 
     her representative, and shall contain the following 
     information:
       (1) the name, mailing address, and telephone number(s) of 
     the complainant;
       (2) the name(s) and title(s) of the individual(s) involved 
     in the action that the employee claims is a violation of the 
     Act;
       (3) the name, address and telephone number of the employing 
     office involved;
       (4) a description of the conduct being challenged, 
     including the date(s) of the conduct;
       (5) a brief description of why the complainant believes the 
     challenged conduct is a violation of the Act and the 
     Section(s) of the Act involved;
       (6) a statement of the relief or remedy sought; and
       (7) the name, address, and telephone number of the 
     representative, if any, who will act on behalf of the 
     complainant.
       (d) Amendments. Amendments to the complaint may be 
     permitted by the Office or, after assignment, by a Hearing 
     Officer, on the condition that all parties to the proceeding 
     have adequate notice to prepare to meet the new allegations, 
     and so long as the amendments relate to the violations for 
     which the employee has completed counseling and mediation and 
     permitting such amendments will not unduly prejudice the 
     rights of the employing office or other parties, unduly delay 
     the completion of the hearing or otherwise interfere with or 
     impede the proceedings.
       (e) Service of Complaint. Upon receipt of a complaint or an 
     amended complaint, the Office shall serve the employing 
     office named in the complaint, or its designated 
     representative, with a copy of the complaint or amended 
     complaint and a copy of these rules. The Office shall include 
     a service list containing the names and addresses of the 
     parties and their designated representatives.
       (f) Answer. Within 15 days after service of a copy of a 
     complaint or an amended complaint, the respondent employing 
     office shall file an answer with the Office and serve one 
     copy on the complainant. The answer shall contain a statement 
     of the position of the respondent employing office on each of 
     the issues raised in the complaint, including admissions, 
     denials, or explanations of each allegation made in the 
     complaint and any other defenses to the complaint. Failure to 
     raise a claim or defense in the answer shall not bar its 
     submission later unless to do so would unduly prejudice the 
     rights of the other party or unduly delay or otherwise 
     interfere with or impede the proceedings.
     Sec. 2.07  Appointment of the Hearing Officer
       Upon the filing of a complaint, the Executive Director will 
     appoint an independent Hearing Officer, who shall have the 
     authority specified in Section 7.01(b) below. The Hearing 
     Officer shall not be the neutral who mediated the matter 
     under Section 2.04 of these rules.
     Sec. 2.08  Filing, service, and size limitations of motions, 
         briefs, responses or other documents
       (a) Filing with the Office; Number. One original and three 
     copies of all motions, briefs, responses, or other documents, 
     must be filed, whenever required, with the Office or Hearing 
     Officer. However, when a party aggrieved by the decision of a 
     Hearing Officer files an appeal with the Board, one original 
     and seven copies of both any appeal brief and any responses 
     must be filed with the Office.
       (b) Service. The parties shall serve on each other one copy 
     of all briefs or motions filed with the Office, other than 
     the Complaint, which the Office will serve pursuant to 
     Section 2.06(e) of these rules. Service shall be made by 
     mailing or by hand delivering a copy of the motion, brief, 
     response or other document to each party on the service list 
     previously provided by the Office. Each of these documents, 
     other than the Complaint, must be accompanied by a 
     certificate of service specifying how and when service was 
     made. It shall be the duty of all parties to notify the 
     Office and one another in writing of any changes in the names 
     or addresses on the service list.
       (c) Time limitations for response to motions or briefs and 
     reply. Unless otherwise specified by the Hearing Officer or 
     these rules, a party shall file a response to a motion or 
     brief within 15 days of the service of the motion or brief 
     upon the party. Any reply to such response shall be filed and 
     served within 5 days of the service of the response.
       (d) Size limitations. Except as otherwise specified by the 
     Hearing Officer or these rules, no brief, motion, response, 
     or supporting memorandum filed with the Office shall exceed 
     35 pages, or 8,750 words, exclusive of attachments. The 
     Board, the Office or Hearing Officer may waive, raise or 
     reduce this limitation for good cause shown or on its own 
     initiative. Briefs, motions, responses, and supporting 
     memoranda shall be on standard letter-size paper (8\1/2\'' x 
     11'').
     Sec. 2.09  Dismissal of complaints
       (a) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss any claim that the Hearing Officer finds 
     to be frivolous or that fails to state a claim upon which 
     relief may be granted.
       (b) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss a complaint because it fails to comply 
     with the applicable time limits or other requirements under 
     these rules.
       (c) If any employee fails to proceed with an action, the 
     Hearing Officer may dismiss the complaint with prejudice.
       (d) Appeal. A dismissal by the Hearing Officer made under 
     Section 7.17 of these rules may be subject to appeal before 
     the Board if the aggrieved party files a timely petition for 
     review under Section 8.01.
       (e) Withdrawal of Complaint by Complainant. At any time an 
     employee may withdraw his or her own complaint by filing a 
     notice with the Office for transmittal to the Hearing Officer 
     and by serving a copy on the employing office or 
     representative. Any such withdrawal must be approved by the 
     Executive Director.
     Sec. 2.10  Confidentiality
       Pursuant to Section 416(c) of the Act, all proceedings and 
     deliberations of Hearing Officers and the Board, including 
     any related records, shall be confidential. A violation of 
     the confidentiality requirements of the Act and these rules 
     could result in the imposition of sanctions. Nothing in these 
     rules shall prevent the Executive Director from reporting 
     statistical information to the Senate and House of 
     Representatives, so long as that statistical information does 
     not reveal the identity of the employees involved or of 
     employing offices that are the subject of a matter.
     Sec. 2.11 Filing of civil action
       (a) Filing. Section 4.04 of the Act provides that as an 
     alternative to filing a complaint under Section 2.06, an 
     employee who receives notice of the end of mediation pursuant 
     to Section 2.04(h) may elect to file a civil action in 
     accordance with Section 408 of the Act in the United States 
     district court for 

[[Page S 17016]]
     the district in which the employee is employed or for the District of 
     Columbia.
       (b) Time for filing. A covered employee may file such a 
     civil action no earlier than 30 days after receipt of the 
     notice under the Section 2.04(h), but no later than 90 days 
     after that receipt.

    Subpart C--[Reserved (part B--Section 210--ADA Public Services)]

           Subpart D--[Reserved (Part C--Section 215--OSHA)]

            Subpart E--[Reserved (Part D--Section 220--LMR)]

                   Subpart F--Discovery and Subpoenas

     Sec. 6.01  Discovery
     Sec. 6.02  Requests for Subpoenas
     Sec. 6.03  Service
     Sec. 6.04  Return of Service
     Sec. 6.05  Motion to Quash
     Sec. 6.06  Enforcement
     Sec. 6.01  Discovery
       (a) Explanation. Discovery is the process by which a party 
     may obtain relevant information, not privileged, from another 
     person, including a party, for the purpose of assisting that 
     party in developing, preparing and presenting its case at the 
     hearing.
       (b) Office policy regarding discovery. It is the policy of 
     the Office to encourage the early and voluntary exchange of 
     relevant and material nonprivileged information between the 
     parties, including the names and addresses of witnesses and 
     copies of relevant and material documents, and to encourage 
     Hearing Officers to develop procedures which allow for the 
     greatest exchange of relevant and material information and 
     which minimize the need for parties to formally request such 
     information.
       (c) Discovery availability. Pursuant to Section 405(e) of 
     the Act, the Hearing Officer in his or her discretion may 
     permit reasonable prehearing discovery. In exercising that 
     discretion, the Hearing Officer may be guided by the Federal 
     Rules of Civil Procedure.
       (1) The Hearing Officer may authorize discovery by one or 
     more of the following methods: depositions upon oral 
     examination or written questions; written interrogatories; 
     production of documents or things or permission to enter upon 
     land or other property for inspection or other purposes; 
     physical and mental examinations; and requests for admission.
       (2) The Hearing Officer may make any order setting forth 
     the forms and extent of discovery, including orders limiting 
     the number of depositions and interrogatories and requests 
     for production of documents, and may also limit the length of 
     depositions.
       (3) The Hearing Officer may issue any other order to 
     prevent discovery or disclosure of confidential or privileged 
     materials or information, as well as hearing or trial 
     preparation materials and any other information deemed not 
     discloseable, or to protect a party or person from annoyance, 
     embarrassment, oppression, or undue burden or expense.
       (d) Claims of privilege. Whenever a party withholds 
     information otherwise discoverable under these rules by 
     claiming that it is privileged or confidential or subject to 
     protection as hearing or trial preparation materials, the 
     party shall make the claim expressly and shall describe the 
     nature of the documents, communications or things not 
     produced or disclosed in a manner that, without revealing the 
     information itself privileged or protected, will enable other 
     parties to assess the applicability of the privilege or 
     protection.
     Sec. 6.02  Request for subpoena
       (a) Authority to issue subpoenas. At the request of a 
     party, a Hearing Officer may issue subpoenas for the 
     attendance and testimony of witnesses and for the production 
     of correspondence, books, papers, documents, or other 
     records. The attendance of witnesses and the production of 
     records may be required from any place within the United 
     States.
       (b) Request. A request for the issuance of a subpoena 
     requiring the attendance and testimony of witnesses or the 
     production of documents or other evidence under paragraph (a) 
     above shall be submitted to the Hearing Officer at least 15 
     days in advance of the date scheduled for the commencement of 
     the hearing. If the subpoena is sought as part of the 
     discovery process, the request shall be submitted to the 
     Hearing Officer at least 10 days in advance of the date set 
     for the attendance of the witness at a deposition or the 
     production of documents.
       (c) Forms and showing. Requests for subpoenas shall be 
     submitted in writing to the Hearing Officer and shall specify 
     with particularity the witness, correspondence, books, 
     papers, documents, or other records desired and shall be 
     supported by a showing of general relevance and reasonable 
     scope.
       (d) Rulings. The Hearing Officer shall promptly rule on the 
     request.
     Sec. 6.03  Service
       Service of a subpoena may be made by any person who is over 
     18 years of age and not a party to the proceeding. Service 
     may be made either:
       (a) In person,
       (b) By registered or certified mail, or express mail with 
     return receipt, or
       (c) By delivery to a responsible person (named) at the 
     residence or place of business (as appropriate) of the person 
     to be served.
     Sec. 6.04  Return of service
       When service of a subpoena is effected, the person serving 
     the subpoena shall certify on the return of service the date 
     and the manner of service.
     Sec. 6.05  Motion to quash
       Any person against whom a subpoena is directed may file a 
     motion to quash or limit the subpoena setting forth the 
     reasons why the subpoena should not be complied with or why 
     it should be limited in scope. This motion shall be filed 
     with the Hearing Officer within 10 days after service of the 
     subpoena.
     Sec. 6.06  Enforcement
       (a) Objections and Requests for enforcement. If a person 
     has been served with a subpoena pursuant to Section 6.03 but 
     fails or refuses to comply with its terms or otherwise 
     objects to it, the party or person objecting or the party 
     seeking compliance may seek a ruling from the Hearing 
     Officer. The request for a ruling should be submitted in 
     writing to the Hearing Officer. However, it may be made 
     orally on the record at the hearing at the Hearing Officer's 
     discretion. The party seeking compliance shall present the 
     return of service and, except where the witness was required 
     to appear before the Hearing Officer, shall submit evidence, 
     by affidavit or declaration, of the failure or refusal to 
     obey the subpoena.
       (b) Ruling by Hearing Officer. (1)The Hearing Officer shall 
     promptly rule on the request for enforcement and/or the 
     objection(s).
       (2) On request of the objecting witness or any party, the 
     Hearing Officer shall, or on the Hearing Officer's own 
     initiative the Hearing Officer may, refer the ruling to the 
     Board for review.
       (c) Review by the Board. The Board may overrule, modify, 
     remand or affirm the ruling of the Hearing Officer and in its 
     discretion, may direct the General Counsel to apply in the 
     name of the Office for an order from a United States district 
     court to enforce the subpoena.
       (d) Application to an appropriate court; civil contempt. If 
     a person fails to comply with a subpoena, the Board may 
     direct the General Counsel to apply, in the name of the 
     Office, to an appropriate United States district court for an 
     order requiring that person to appear before the Hearing 
     Officer to give testimony or produce records. Any failure to 
     obey a lawful order of the district court may be held by such 
     court to be a civil contempt thereof.

                          Subpart G--Hearings

     Sec. 7.01  The Hearing Officer
     Sec. 7.02  Sanctions
     Sec. 7.03  Disqualification of the Hearing Officer
     Sec. 7.04  Motions and Prehearing Conference
     Sec. 7.05  Scheduling the Hearing
     Sec. 7.06  Consolidation and Joinder of Cases
     Sec. 7.07  Conduct of Hearing; disqualification of 
         representatives
     Sec. 7.08  Transcript
     Sec. 7.09  Admissibility of Evidence
     Sec. 7.10  Stipulations
     Sec. 7.11  Official Notice
     Sec. 7.12  Confidentiality
     Sec. 7.13  Immediate Board Review of a Ruling by a Hearing 
         Officer
     Sec. 7.14  Briefs
     Sec. 7.15  Closing the record
     Sec. 7.16  Official Record
     Sec. 7.17  Hearing Officer Decisions; Entry in Records of the 
         Office
     Sec. 7.01  The Hearing Officer
       (a) Exercise of authority. The Hearing Officer may exercise 
     authority as provided in paragraph (b) of this Section upon 
     his or her own initiative or upon the motion of a party, as 
     appropriate.
       (b) Authority. Hearing Officers shall conduct fair and 
     impartial hearings and take all necessary action to avoid 
     undue delay in the disposition of all proceedings. They shall 
     have all powers necessary to that end unless otherwise 
     limited by law, including, but not limited to, the authority 
     to:
       (1) Administer oaths and affirmations;
       (2) Rule on motions to disqualify designated 
     representatives;
       (3) Issue subpoenas in accordance with Section 6.02;
       (4) Rule upon offers of proof and receive relevant 
     evidence;
       (5) Rule upon discovery issues as appropriate under 
     Sections. 6.01 to 6.06;
       (6) Hold prehearing conferences for the settlement and 
     simplification of issues;
       (7) Convene a hearing as appropriate, regulate the course 
     of the hearing, and maintain decorum and exclude from the 
     hearing any person who disrupts, or threatens to disrupt, 
     that decorum;
       (8) Exclude from the hearing any person, except any 
     complainant, any party, the attorney or representative of any 
     complainant or party, or any witness while testifying;
       (9) Rule on all motions, witness and exhibit lists and 
     proposed findings, including motions for summary judgment;
       (10) Require the filing of briefs, memoranda of law and the 
     presentation of oral argument with respect to any question of 
     law;
       (11) Order the production of evidence and the appearance of 
     witnesses;
       (12) Impose sanctions as provided under Section 7.02 of 
     these rules;
       (13) File decisions on the issues presented at the hearing;
       (14) Maintain the confidentiality of proceedings: and
       (15) Waive or modify any procedural requirements of 
     Sections 6 and 7 of these rules so long as permitted by the 
     Act.
     Sec. 7.02  Sanctions
       The Hearing Officer may impose sanctions upon the parties, 
     under, but not limited to, the circumstances set forth in 
     this Section. 

[[Page S 17017]]

       (a) Failure to comply with an order. When a party fails to 
     comply with an order (including an order for the taking of a 
     deposition, for the production of evidence within the party's 
     control, or for production of witnesses), the Hearing Officer 
     may:
       (1) Draw an inference in favor of the requesting party on 
     the issue related to the information sought.
       (2) Stay further proceedings until the order is obeyed.
       (3) Prohibit the party failing to comply with such order 
     from introducing evidence concerning, or otherwise relying 
     upon, testimony relating to the information sought.
       (4) Permit the requesting party to introduce secondary 
     evidence concerning the information sought.
       (5) Strike any part of the complaint, briefs, answer, or 
     other submissions of the party failing to comply with such 
     request.
       (6) Direct judgment against the non-complying party in 
     whole or in part.
       (7) Order that the non-complying party, or the 
     representative advising that party, pay all or part of the 
     attorney's fees and reasonable expenses of the other party or 
     parties or of the Office, caused by the failure, unless the 
     Hearing Officer or the Board finds that the failure was 
     substantially justified or that other circumstances make an 
     award of attorney's fees and/or expenses unjust.
       (b) Failure to prosecute or defend. If a party fails to 
     prosecute or defend a position, the Hearing Officer may 
     dismiss the action with prejudice or rule for the petitioner.
       (c) Failure to make timely filing. The Hearing Officer may 
     refuse to consider any request, motion or other action that 
     is not filed in a timely fashion in compliance with this 
     Part.
     Sec. 7.03  Disqualification of the Hearing Officer
       (a) In the event that a Hearing Officer considers himself 
     or herself disqualified, either because of personal bias or 
     of an interest in the case or for some other disqualifying 
     reason, he or she shall withdraw from the case, stating in 
     writing or on the record the reasons for his or her 
     withdrawal, and shall immediately notify the Office of the 
     withdrawal.
       (b) Any party may file a motion requesting that a Hearing 
     Officer withdraw on the basis of personal bias or of an 
     interest in the case or for some other disqualifying reason. 
     This motion shall specifically set forth the reasons 
     supporting the request and be filed as soon as the party has 
     reason to believe that there is a basis for disqualification.
       (c) The Hearing Officer shall rule on the withdrawal 
     motion. If the motion is denied, the party requesting 
     withdrawal may take the motion to the Executive Director. The 
     motion to the Executive Director, together with a supporting 
     brief, shall be filed within 5 days of service of the denial 
     of the motion by the Hearing Officer. Upon receipt of the 
     motion, the Executive Director will determine whether a 
     response from the other party or parties is required, and if 
     so, will fix by order the time for the filing of the 
     response. Any objection to the ruling of the Executive 
     Director on the withdrawal motion shall not be deemed waived 
     by further participation in the hearing and may be the basis 
     for an appeal to the Board from the decision of the Hearing 
     Officer under Section 8.01 of these rules. Such objection 
     will not stay the conduct of the hearing.
     Sec. 7.04  Motions and prehearing conference
       (a) Motions. When a case is before a Hearing Officer, 
     motions of the parties shall be filed with the Hearing 
     Officer and shall be in writing except for oral motions made 
     on the record during the hearing. All written motions and any 
     responses to them shall include a proposed order, where 
     applicable. Only with the Hearing Officer's advance approval 
     may either party file additional responses to the motion or 
     to the response to the motion. Motions for extension of time 
     will be granted only for good cause shown.
       (b) Scheduling of the Prehearing Conference. Within 7 days 
     after assignment, the Hearing Officer shall serve on the 
     employee and the employing office and their designated 
     representatives written notice setting forth the time, date, 
     and place of the prehearing conference.
       (c) Prehearing conference memoranda. The Hearing Officer 
     may order each party to prepare a prehearing conference 
     memorandum. That memorandum may include:
       (1) The major factual contentions and legal issues that the 
     party intends to raise at the hearing in short, successive, 
     and numbered paragraphs, along with any proposed stipulations 
     of fact or law. For example, in a case of alleged unlawful 
     discrimination, a complainant's statement of legal issues 
     should include that party's statement of the appropriate 
     prima facie case; an employing office's statement should 
     include the alleged legitimate, non-discriminatory reason(s) 
     that the employing office will articulate; and affirmative 
     defenses, if any, which may be raised.
       (2) An estimate of the time necessary for presentation of 
     the party's case;
       (3) The specific relief, including the amount of monetary 
     relief, that is being or will be requested;
       (4) The names of potential witnesses for the party's case, 
     except for potential rebuttal witnesses, and the purpose for 
     which they will be called and a list of documents that the 
     party is seeking from the opposing party, and, if discovery 
     was permitted, the status of any pending request for 
     discovery. (It is not necessary to list each document 
     requested. Instead, the party may refer to the request for 
     discovery.)
       (5) A brief description of any other unresolved issues.
       (d) At the prehearing conference, the Hearing Officer may 
     discuss the subjects specified in paragraph 4 above and the 
     manner in which the hearing will be conducted and proceed. In 
     addition the Hearing Officer may explore settlement 
     possibilities and consider how the factual and legal issues 
     might be simplified and any other issues that might expedite 
     the early resolution of the dispute. The Hearing Officer 
     shall issue an order, which recites the action taken at the 
     conference and the agreements made by the parties as to any 
     of the matters considered and which limits the issues to 
     those not disposed of by admissions or agreements of the 
     parties. Such order, when entered, controls the course of the 
     proceeding, subject to later modification by the Hearing 
     Officer by his or her own order or upon proper request of a 
     party for good cause shown.
     Sec. 7.05  Scheduling the hearing
       (a) Date, time, and place of hearing. The Office shall 
     issue the notice of hearing, which shall fix the date, time, 
     and place of hearing. In no event, absent a postponement 
     granted by the Office, will a hearing commence later than 60 
     days after the filing of the complaint.
       (b) Motions for postponement or a continuance. Motions for 
     postponement or for a continuance by either party shall be 
     made in writing to the Office, shall set forth the reasons 
     for the request and the position of the opposing party on the 
     postponement. Such a motion may be granted upon a showing of 
     good cause. In no event will a hearing commence later than 90 
     days after the filing of the complaint.
     Sec. 7.06  Consolidation and joinder of cases
       (a) Explanation. (1) Consolidation is when two or more 
     parties have cases that might be treated as one because they 
     contain identical or similar issues or in such other 
     appropriate circumstances.
       (2) Joinder is when one person has two or more claims 
     pending and they are united for consideration. For example, 
     where a single individual who has one appeal pending 
     challenging a 30-day suspension and another appeal pending 
     challenging a subsequent dismissal, joinder might be 
     warranted.
       (b) The Board, the Office, or a Hearing Officer may 
     consolidate or join cases on their own initiative or on the 
     motion of a party if to do so would expedite processing of 
     the cases and not adversely affect the interests of the 
     parties, taking into account the confidentiality requirements 
     of Section 416 of the Act.
     Sec. 7.07  Conduct of hearing; disqualification of 
         representatives
       (a) Pursuant to Section 405(d)(1) of the Act, the Hearing 
     Officer will conduct the hearing in closed session on the 
     record. Only the Hearing Officer, the parties and their 
     representatives, and witnesses during the time they are 
     testifying, will be permitted to attend, except that the 
     Office may not be precluded from observing the hearings. The 
     Hearing Officer, or a person designated by the Hearing 
     Officer or the Executive Director, shall control the 
     recording of the proceedings.
       (b) The hearing will be conducted as an administrative 
     proceeding. Witnesses shall testify under oath or 
     affirmation. Except as specified in the Act and in these 
     rules, the Hearing Officer will conduct the hearing, to the 
     greatest extent practicable, in accordance with the 
     principles and procedures in Sections 554 through 557 of 
     title 5 of the United States Code.
       (c) No later than the opening of the hearing, or as 
     otherwise ordered by the Hearing Officer, each party shall 
     submit to the Hearing Officer and to the opposing party a 
     typed list of the witnesses, except rebuttal witnesses, 
     expected to be called to testify.
       (d) At the commencement of the hearing, or as otherwise 
     ordered by the Hearing Officer, the Hearing Officer may 
     consider any stipulations of facts and law pursuant to 
     Section 7.10, take official notice of certain facts pursuant 
     to Section 7.11, rule on objections made by the parties and 
     hear the examination and cross-examination of witnesses. Each 
     party will be expected to present his or her cases in a 
     concise manner, limiting the testimony of witnesses and 
     submission of documents to relevant matters.
       (e) If the Hearing Officer concludes that a representative 
     of an employee, a witness, or an employing office has a 
     conflict of interest, he may, after giving the representative 
     an opportunity to respond, disqualify the representative. In 
     that event, within the time limits established by the Act, 
     the affected party will have a reasonable time to retain 
     other representation.
     Sec. 7.08  Transcript
       (a) Preparation. An accurate electronic or stenographic 
     record of the hearing shall be kept and shall be the sole 
     official record of the proceeding. The Office shall be 
     responsible for the cost of transcription of the hearing. 
     Upon request, a copy of a transcript of the hearing shall be 
     provided to each party, provided, however, that such party 
     has first agreed to maintain and respect the confidentiality 
     of such transcript in accordance with the applicable rules 
     prescribed by the Office or the Hearing Officer in order to 
     effectuate Section 416(c) of the Act. Additional copies of 
     the transcript shall be made available to a party upon 
     payment of costs. Exceptions to the payment requirement may 
     be granted for good cause shown. A motion for an exception 
     shall be made in writing and 

[[Page S 17018]]
     accompanied by an affidavit or declaration setting forth the reasons 
     for the request and shall be granted upon a showing of good 
     cause. Requests for copies of transcripts shall be directed 
     to the Office. The Office may, by agreement with the person 
     making the request, make arrangements with the official 
     hearing reporter for required services to be charged to the 
     requester.
       (b) Corrections. Corrections to the official transcript 
     will be permitted. Motions for correction must be submitted 
     within 10 days of service of the transcript upon the party. 
     Corrections of the official transcript will be permitted only 
     when errors of substance are involved and only upon approval 
     of the Hearing Officer. The Hearing Officer may make 
     corrections at any time with notice to the parties.
     Sec. 7.09  Admissibility of evidence
       The Hearing Officer shall apply the Federal rules of 
     evidence to the greatest extent practicable. These rules 
     provide that the Hearing Officer may exclude evidence if, 
     among other things, it constitutes inadmissible hearsay or 
     its probative value is substantially outweighed by the danger 
     of unfair prejudice, by confusion of the issues, or by 
     considerations of undue delay, waste of time, or needless 
     presentation of cumulative evidence.
     Sec. 7.10  Stipulations
       The parties may stipulate as to any matter of fact. Such a 
     stipulation will satisfy a party's burden of proving the fact 
     alleged.
     Sec. 7.11  Official notice
       The Hearing Officer on his or her own motion or on motion 
     of a party, may take official notice of a fact that is not 
     subject to reasonable dispute because it is either: (a) A 
     matter of common knowledge; or (b) capable of accurate and 
     ready determination by resort to sources whose accuracy 
     cannot reasonably be questioned. Official notice taken of any 
     fact satisfies a party's burden of proving the fact noticed.
       Where a decision, or part thereof, rests on the official 
     notice of a material fact not appearing in the evidence in 
     the record, the fact of official notice shall be so stated in 
     the decision, and any party, upon timely request, shall be 
     afforded an opportunity to show the contrary.
     Sec. 7.12  Confidentiality
       Pursuant to Section 416 of the Act, all proceedings and 
     deliberations of Hearing Officers and the Board, including 
     the transcripts of hearings and any related records, shall be 
     confidential, except as specified in Section 416(d), (e), and 
     (f) of the Act. All parties to the proceeding and their 
     representatives, and witnesses who appear at the hearing, 
     will be advised of the importance of confidentiality in this 
     process and of their obligations, subject to sanctions, to 
     maintain it.
     Sec. 7.13  Immediate Board Review of a Ruling by a Hearing 
         Officer
       (a) Review strongly disfavored. Board review of a ruling by 
     a hearing officer while a proceeding is ongoing (an 
     ``interlocutory appeal'') is strongly disfavored. In general, 
     a request for interlocutory review may go before the Board 
     for consideration only if the Hearing Officer, on his or her 
     own motion or by motion of the parties, determines that the 
     issue presented is of such importance to the proceeding that 
     it requires the Board's immediate attention.
       (b) Standards for review. In determining whether to forward 
     a request for interlocutory review to the Board, the Hearing 
     Officer shall consider the following:
       (1) Whether the ruling involves a significant question of 
     law or policy about which there is substantial ground for 
     difference of opinion; and
       (2) Whether an immediate review of the Hearing Officer 
     ruling by the Board will materially advance the completion of 
     the proceeding; and
       (3) Whether denial of immediate review will cause undue 
     harm to a party or the public.
       (c) Time for Filing. A motion by a party for interlocutory 
     review of a ruling of the Hearing Officer shall be filed with 
     the Hearing Officer within 5 days after service of the ruling 
     upon the parties. The motion shall include arguments in 
     support of both interlocutory review and the determination to 
     be made by the Board upon review. Responses, if any, shall be 
     filed with the Hearing Officer within 3 days after service of 
     the motion.
       (d) Hearing Officer Action. If the conditions set forth in 
     paragraph (b) above are met, the Hearing Officer may forward 
     a request for interlocutory review to the Board for its 
     immediate consideration. Any such submission shall explain 
     the basis on which the Hearing Officer concluded that the 
     standards for interlocutory review have been met.
       (e) Grant of Interlocutory Review Within Board's Sole 
     Discretion. The Board, in its sole discretion, may grant 
     interlocutory review.
       (f) Stay pending review. Unless otherwise directed by the 
     Board, the stay of any proceedings during the pendency of 
     either a request for interlocutory review or the review 
     itself shall be within the discretion of the Hearing Officer.
       (g) Denial of Motion not Appealable; Mandamus. The grant or 
     denial of a motion for a request for interlocutory review 
     shall not be appealable. The Hearing Officer shall promptly 
     bring a denial of such a motion, and the reasons therefor, to 
     the attention of the Board. If, upon consideration of the 
     motion and the reason for denial, the Board believes that 
     interlocutory review is warranted, it may grant the review 
     sua sponte. In addition, the Board may in its discretion, in 
     extraordinary circumstances, entertain directly from a party 
     a writ of mandamus to review a ruling of a Hearing Officer.
       (h) Procedures before Board. Upon its acceptance of a 
     ruling of the Hearing Officer for interlocutory review, the 
     Board shall issue an order setting forth the procedures that 
     will be followed in the conduct of that review.
       (i) Review of a Final Decision. Denial of interlocutory 
     review will not affect a party's right to challenge rulings, 
     which are otherwise appealable, as part of an appeal to the 
     Board from the Hearing Officer's decision issued under 
     Section 7.17 of these rules.
     Sec. 7.14  Briefs
       (a) May be filed. The Hearing Officer may permit the 
     parties to file posthearing briefs on the factual and the 
     legal issues presented in the case.
       (b) Length. No principal brief shall exceed 50 pages, or 
     12,500 words, and no reply brief 25 pages, or 6,250 words, 
     exclusive of tables and pages limited only to quotations of 
     statutes, rules, and the like. Motions to file extended 
     briefs shall be granted only for good cause shown; the 
     Hearing Officer may in his or her discretion also reduce the 
     page limits. Briefs in excess of 10 pages shall include an 
     index and a table of authorities.
       (c) Format. Every brief must be easily readable. Briefs 
     must have double spacing between each line of text, except 
     for quoted texts and footnotes, which may be single-spaced.
     Sec. 7.15  Closing the record
       (a) The record shall be closed at the conclusion of the 
     hearing. However, when the Hearing Officer allows the parties 
     to submit additional evidence previously identified for 
     introduction, the Hearing Officer may allow an additional 
     period before the conclusion of the hearing as is necessary 
     for that purpose.
       (b) Once the record is closed, no additional evidence or 
     argument shall be accepted into the record except upon a 
     showing that new and material evidence has become available 
     that was not available despite due diligence prior to the 
     closing of the record. However, the Hearing Officer shall 
     make part of the record any motions for attorney fees, 
     supporting documentation, and determinations thereon, and any 
     approved correction to the transcript.
     Sec. 7.16  Official record
       The transcript of testimony and the exhibits, together with 
     all papers and motions filed in the proceeding, shall 
     constitute the exclusive and official record.
     Sec. 7.17  Hearing Officer decisions; entry in records of the 
         Office
       (a) Pursuant to Section 405(g) of the Act, no later than 90 
     days after the conclusion of the hearing, the Hearing Officer 
     shall issue a written decision.
       (b) Upon issuance, the decision and order of the Hearing 
     Officer shall be entered into the records of the Office.
       (c) The Office shall promptly provide a copy of the 
     decision and order of the Hearing Officer to the parties.
       (d) If there is no appeal of a decision and order of a 
     Hearing Officer, that decision becomes a final decision of 
     the Office, which is subject to enforcement under Section 
     8.01 of these rules.

                Subpart H--Proceedings before the Board

     Sec. 8.01  Appeal to the Board
     Sec. 8.02  Compliance with Final Decisions, Requests for 
         Enforcement
     Sec. 8.03  Judicial Review
     Sec. 8.01  Appeal to the Board
       (a) No later than 30 days after the entry of the decision 
     of the Hearing Officer in the records of the Office, an 
     aggrieved party may seek review of that decision by the Board 
     by filing with the Office a petition for review by the Board. 
     The appeal must be served on the opposing party or its 
     representative.
       (b) Unless otherwise ordered by the Board, within 21 days 
     following the filing of a petition for review to the Board, 
     the appellant shall file and serve a supporting brief. That 
     brief shall identify with particularity those findings or 
     conclusions in the decision that are challenged and shall 
     refer specifically to the portions of the record and the 
     provisions of statutes or rules that are alleged to support 
     each assertion made on appeal.
       Unless otherwise ordered by the Board, within 21 days 
     following the service of the appellant's brief, the opposing 
     party may file and serve a responsive brief. Unless otherwise 
     ordered by the Board, within 10 days following the service of 
     the appellee's responsive brief, the appellant may file and 
     serve a reply brief.
       (c) Upon the request of any party or upon its own order, 
     the Board, in its discretion, may hold oral argument on an 
     appeal.
       (d) Upon appeal, the Board shall issue a written decision 
     setting forth the reasons for its decision. The Board may 
     affirm, reverse, modify or remand the decision of the Hearing 
     Officer in whole or in part.
       (e) The Board may remand the matter to the Hearing Officer 
     for further action or proceedings, including the reopening of 
     the record for the taking of additional evidence. The Hearing 
     Officer shall render a report to the Board on the remanded 
     matters. Upon receipt of the report, the Board shall 
     determine whether the views of the parties on the content of 
     the report should be obtained in writing and, where 
     necessary, shall fix by order the time for the submission of 
     those 

[[Page S 17019]]
     views. A decision of the Board following completion of the remand shall 
     be the final decision of the Board and shall be subject to 
     judicial review.
       (f) Pursuant to Section 406(c) of the Act, in conducting 
     its review of the decision of a Hearing Officer, the Board 
     shall set aside a decision if it determines that the decision 
     was:
       (1) arbitrary, capricious, an abuse of discretion, or 
     otherwise not consistent with law;
       (2) not made consistent with required procedures; or
       (3) unsupported by substantial evidence.
       (g) In making determinations under paragraph (g), above, 
     the Board shall review the whole record, or those parts of it 
     cited by a party, and due account shall be taken of the rule 
     of prejudicial error.
       (h) Record: what constitutes. The complaint and any 
     amendments, notice of hearing, answer and any amendments, 
     motions, rulings, orders, stipulations, exhibits, documentary 
     evidence, depositions, and the transcript of the hearing 
     (together with any electronic recording of the hearing if the 
     original reporting was performed electronically) together 
     with the hearing officer's decision and the petition for 
     review, and any cross-petition, shall constitute the record 
     in the case.
     Sec. 8.02  Compliance with final decisions, requests for 
         enforcement
       (a) A party required to take any action under the terms of 
     a final decision of the Office shall carry out its terms 
     promptly, and shall within 30 days after the decision or 
     order becomes final and goes into effect by its terms, 
     provide the Office and all parties to the proceedings with a 
     compliance report specifying the manner in which compliance 
     with the provisions of the decision or order has been 
     accomplished. If complete compliance has not been 
     accomplished within 30 days, the party required to take any 
     such action shall submit a compliance report specifying why 
     compliance with any provision of the decision order has not 
     yet been fully accomplished, the steps being taken to assure 
     full compliance, and the anticipated date by which full 
     compliance will be achieved.
       (b) The Office may require additional reports as necessary;
       (c) If the Office does not receive notice of compliance in 
     accordance with paragraph (a) of this Section, the Office 
     shall make inquiries to determine the status of compliance. 
     If the Office cannot determine that full compliance is 
     forthcoming, the Office shall report the failure to comply to 
     the Board and recommend whether court enforcement of the 
     decision should be sought.
       (d) Any party may petition the Board for enforcement of a 
     final decision of the Office or the Board. The petition shall 
     specifically set forth the reasons why the petitioner 
     believes enforcement is necessary.
       (e) Upon receipt of a report of non-compliance or a 
     petition for enforcement of a final decision, or as it 
     otherwise determines, the Board may issue a notice to any 
     person or party to show cause why the Board should not seek 
     judicial enforcement of its decision or order.
       (f) Within the discretion of the Board, it may direct the 
     General Counsel to petition the Court for enforcement of a 
     decision under Section 406(e) of the Act whenever the Board 
     finds that a party has failed to comply with its decision and 
     order.
     Sec. 8.03  Judicial review
       Pursuant to Section 407 of the Act, a party aggrieved by a 
     final decision of the Board under Section 406(e) in cases 
     arising under Part A of Title II of the Act may file a 
     petition for review with the United States Court of Appeals 
     for the Federal Circuit.

           Subpart I--Other Matters of General Applicability

     Sec. 9.01  Attorney's Fees and Costs
     Sec. 9.02  Ex parte Communications
     Sec. 9.03  Settlement Agreements
     Sec. 9.04  Revocation, amendment or waiver of rules
     Sec. 9.01  Attorney's fees and costs
       (a) Request. No later than 20 days after the entry of a 
     Hearing Officer's decision under Section 7.17 or after 
     service of a Board decision by the Office, the complainant, 
     if he or she is a prevailing party, may submit to the Hearing 
     Officer who heard the case initially a request for the award 
     of reasonable attorney's fees and costs, following the form 
     specified in paragraph (b) below. The Board or the Hearing 
     Officer, after giving the respondent an appointment to reply, 
     shall rule on the request.
       (b) Form of Request. In addition to setting forth the legal 
     and factual bases upon which the attorney's fees and/or costs 
     are sought, a request for attorney's fees and/or costs shall 
     be accompanied by:
       (1) accurate and contemporaneous time records;
       (2) a copy of the terms of the fee agreement (if any);
       (3) the attorney's customary billing rate for similar work; 
     and
       (4) an itemization of costs related to the matter in 
     question.
     Sec. 9.02  [Reserved--Ex parte Communications]
     Sec. 9.03  Settlement agreements
       (a) Application. This Section applies to formal settlement 
     agreements between parties under Section 414 of the Act.
       (b) Informal Resolution. At any time before a covered 
     employee files a complaint under Section 405, a covered 
     employee and the employing office, on their own, may agree 
     voluntarily and informally to resolve a dispute, so long as 
     the resolution does not require a waiver of a covered 
     employee's rights or the commitment by the employing office 
     to an enforceable obligation.
       (c) Formal Settlement Agreement. The parties may agree 
     formally to settle all or part of a disputed matter. In that 
     event, the agreement shall be in writing and submitted to the 
     Executive Director for review and approval.
     Sec. 9.04  Revocation, amendment or waiver of rules
       (a) The Executive Director, subject to the approval of the 
     Board, may revoke or amend these rules by publishing proposed 
     changes in the Congressional Record and providing for a 
     comment period of not less than 30 days. Following the 
     comment period, any changes to the rules are final once they 
     are published in the Congressional Record.
       (b) The Board or a Hearing Officer may waive a procedural 
     rule contained in this Part in an individual case for good 
     cause shown if application of the rule is not required by 
     law.

       Signed at Washington, D.C., on this 13th day of November, 
     1995.

     R. Gaull Silberman,
     Executive Director, Office of Compliance.

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