[Congressional Record Volume 141, Number 212 (Saturday, December 30, 1995)]
[House]
[Pages H15645-H15655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        NOTICE OF ADOPTED RULES

                                                    U.S. Congress,


                                         Office of Compliance,

                                Washington, DC, December 21, 1995.
     Hon. Newt Gingrich,
     Speaker of the House, House of Representatives, Washington, 
         DC.
       Dear Mr. Speaker: Pursuant to Section 303 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 
     Sec. 1384(b)), I am transmitting the enclosed Notice of 
     Adoption of Procedural Rules, together with a copy of the 
     rules for publication in the Congressional Record.
       In addition, I have enclosed for publication, along with 
     the adopted rules, a ``red-lined'' copy of the proposed 
     rules, which were published in the Congressional Record on 
     November 14, 1995. Publication of this ``red-lined'' copy, 
     along with the final rules, will enable readers of the 
     Congressional Record to note precisely the changes that were 
     made.
       The Congressional Accountability Act specifies that the 
     enclosed rules be published on the first day on which both 
     Houses are in session following this transmittal.
           Sincerely,
                                                  Ricky Silberman,
                                               Executive Director.


[[Page H15646]]

  [Below are the adopted rules, with changes from the proposed rules 
indicated as follows: new or altered material appears in boldface; 
deleted material is bracketed in boldface.]

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


                 notice of adoption of procedural rules

       Summary: Section 303 of the Congressional Accountability 
     Act directs the Executive Director of the Office of 
     Compliance to adopt rules governing the procedures of the 
     office. After considering comments to the Notice of Proposed 
     Rulemaking published November 14, 1995 in the Congressional 
     Record, the Executive Director has adopted and is publishing 
     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). Pursuant to Section 303(a) the rules have 
     been approved by the Board of Directors, Office of 
     Compliance.
       For Further Information Contact: Executive Director, Office 
     of Compliance, Room LA-200, 110 Second Street, S.E., 
     Washington, DC 20540-1999. Telephone (202) 252-3100.
       Background and Summary: The Congressional Accountability 
     Act of 1995 (``CAA''), PL 104-1, was enacted into law on 
     January 23, 1995. 2 U.S.C. Sec. 1301 et. seq. 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, including the procedures of 
     Hearing Officers. 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.
       To obtain input from interested persons on the content of 
     these rules the Executive Director published for comment a 
     Notice of Proposed Rulemaking in the Congressional Record on 
     November 14, 1995 (141 Cong. R. S17012 (daily ed., November 
     14, 1995) (``NPR'')), inviting comments regarding the 
     proposed rules. Seven comments were received in response to 
     the proposed rules. Comments were received from Members of 
     Congress, employing offices and a management employee of the 
     Architect of the Capitol expressing his personal view. After 
     full consideration of the comments received, the Executive 
     Director has, with the approval of the Board, adopted these 
     procedural rules.

             Summary and Board's Consideration of Comments

                     Confidentiality and Sanctions

     Summary of Comments
       Several commenters questioned whether the CAA empowers the 
     Board, Hearing Officers, or the Office to impose sanctions 
     for breaches of confidentiality. They also stated that, 
     assuming sanctions can be imposed, the rules should provide 
     more details as to what conduct may be sanctioned, what the 
     sanctions will be, and how those sanctions will be imposed. 
     One commenter noted that identifying possible sanctions will 
     help forestall any due process challenges in the context of 
     breaches of confidentiality.
     Response
       Section 1.07 sets forth the standard for imposing sanctions 
     against individuals or employing offices that violate the 
     confidentiality provisions of section 416 of the CAA. The 
     form and procedures governing the imposition of sanctions are 
     modeled after Rule 37(b) of the Federal Rules of Civil 
     Procedure.
       Section 1.07 makes clear that the confidentiality 
     provisions prohibit any disclosure of information discussed 
     or exchanged in the course of counseling under Section 402, 
     mediation under Section 403 and Board hearings and 
     deliberations under Sections 405 and 406 of the CAA. Section 
     1.07 of the rules only prohibits the use of information 
     (including documents) which was obtained by the individual 
     during the counseling, mediation or other proceedings. 
     However, employees, employing offices and individuals that 
     participate in counseling, mediation or other confidential 
     proceedings are not prohibited by these rules from discussing 
     or disclosing information that was obtained by that person 
     outside the confidential proceedings. The Board believes that 
     a confidentiality rule of this breadth appropriately balances 
     the statutory mandates for confidentiality and the statutory 
     mandate to have open and effective counseling, mediation, 
     hearings and Board proceedings. Finally, this section makes 
     clear that communications necessary for the pursuit or 
     defense of claims under the CAA (communications with lawyers 
     or other representatives) are not prohibited, even if such 
     communications involve disclosure of the contents of 
     confidential proceedings. The Board believes that these 
     provisions adequately address the concerns expressed by 
     some commenters that the confidentiality provisions not 
     unduly limit the ability of employees and employing 
     offices to engage in communications which the law should 
     encourage and not discourage parties from utilizing the 
     procedures of the CAA.
       It is the intent of the Board that Section 1.07 and the 
     confidentiality provisions apply to non-party participants 
     such as witnesses and representatives. Such persons have 
     voluntarily submitted to the jurisdiction of the Office of 
     Compliance by participating in the proceedings, or are 
     subject to the Office's jurisdiction by virtue of the 
     subpoena power. Section 1.07 is part of the general authority 
     of the Office of Compliance to set the rules and procedures 
     of the Office, including the procedures of hearing officers, 
     under Section 303(a) of the CAA. Section 1.07 is reasonably 
     necessary to preserve the confidentiality of counseling, 
     mediation and Board proceedings mandated by section 416 of 
     the CAA.
       Section 1.07 does not authorize sanctions against personnel 
     of the Office of Compliance, as suggested by a commenter. 
     Although the Board agrees that the confidentiality provisions 
     apply to personnel of the Office of Compliance, the Board 
     believes that violations by Office personnel can be 
     adequately addressed as a disciplinary matter within the 
     Office, not under Section 1.07.

                Filings by Facsimile Transmission (FAX)

     Summary of Comments
       On the filing of documents by FAX, two commenters suggested 
     that Sections 1.03 and 2.03 of the proposed rules should 
     clearly state that a request for counseling can be filed by 
     FAX. One commenter stated that the rules should allow ``all 
     documents'' to be filed by FAX. Another commenter suggested 
     that the rules expressly provide that, in order to expedite 
     the pre-hearing and hearing processes, documents may be filed 
     with a Hearing Office by FAX.
     Response
       The language of Section 1.03(a) has been clarified to 
     expressly provide that a formal request for counseling may be 
     filed by FAX and a provision has been added to allow the 
     Board or a Hearing Officer, in their discretion, to order 
     documents to be filed by FAX. Generally, allowing all 
     documents to be filed by FAX might impose undue burdens on 
     the receivers of FAX submissions and interfere with the 
     Office of Compliance's orderly handling of documents. 
     Accordingly, the proposed rule has not been modified to allow 
     for such filing.

                 Withdrawals of Requests for Counseling

     Summary of Comments
       Several commenters suggested that Section 2.03(k) of the 
     proposed rules should limit an employee's right to reinstate 
     counseling to situations in which the request for 
     reinstatement of counseling is made within the 180-day period 
     established by Section 402 of the CAA. One commenter also 
     expressed concern about the prospect of covered employees 
     extending their claims indefinitely by repeatedly withdrawing 
     from counseling and then reinstating the counseling request 
     until the 30-day limit is reached. Another commenter 
     indicated that the 30-day statutory limit on the counseling 
     period requires the 30 days to be consecutive with no hiatus.
     Response
       The revised rule permits a covered employees, who has begun 
     counseling, to withdraw from counseling with a single 
     opportunity to reinstate counseling so long as the 
     reinstatement request occurs within 180 days after the 
     alleged violation and the counseling period does not exceed a 
     total of 30 days. This addresses the commenters' concerns 
     regarding the timeliness of counseling and the possibility of 
     extended processing of claims. Because the Board is of the 
     view that allowing an aggregate of 30 days of counseling 
     conducted during two separate time frames is permissible 
     under the CAA, the proposed rule has not been further 
     modified.

  Grievance Procedures of the Architect of the Capitol or the Capitol 
                                 Police

     Summary of Comments
       Commenters asked for clarification in Section 2.03(m) of 
     the term ``grievance procedures of the Architect of the 
     Capitol or the Capitol Police'' under Section 401 of the CAA. 
     One commenter suggested that Section 2.03(m) also provide for 
     the Executive Director to recommend to any covered employees 
     that they use grievance procedures which may be instituted in 
     the further in any other employing offices.
     Response
       The adopted and approved rule defines the term ``grievance 
     procedures'' to include any internal procedure of the 
     Architect of the Capitol or the Capitol Police that is 
     capable of resolving the issue about which the employee of 
     the Architect of the Capitol or the Capitol Police has sought 
     counseling.
       Section 2.03(m) of the proposed rules exists by virtue of 
     Section 401 of the CAA and reflects the statutory 
     authorization to toll the statutory counseling and mediation 
     periods if an employee of the Architect of the Capitol or the 
     Capitol Police accepts the recommendation of the Executive 
     Director. The CAA expressly authorizes such tolling of the 
     statutory time periods only with regard to an employee of the 
     Architect of the Capitol or the Capitol Police, and does not 
     permit tolling in other circumstances.
     
[[Page H15647]]


                        Discoverable Information

     Summary of Comments
       One commenter stated that Section 6.01 should not limit 
     discovery to ``relevant'' information. Instead, the commenter 
     suggested that, consistent with Rule 26(b)(1) of the Federal 
     Rules of Civil Procedure, a hearing officer should allow 
     discovery of any information ``reasonably calculated to lead 
     to the discovery of admissible evidence.'' Another commenter 
     requested that the rules specifically provide for discovery 
     of requests for counseling and requests for mediation.
     Response
       The comments have been considered and that rule that has 
     been adopted reflects the discovery standard of Rule 26(b)(1) 
     of the Federal Rules of Civil Procedure. The rule does not, 
     however, provide for the discovery of requests for counseling 
     or mediation because that change in the rule is not necessary 
     and could chill employees in their resort to counseling and 
     mediation and hamper the effectiveness of those processes. To 
     the extent that the commenter believes discovery is necessary 
     to determine whether the applicable statutory requirements 
     for filing a complaint have been met, the Office intends to 
     include sufficient information in the notice of the end of 
     the mediation period to allow such a determination by the 
     employing office to be made.

                  Disqualification of Hearing Officers

     Summary
       Two commenters stated that Section 7.03 should provide that 
     the denial of a motion to disqualify a Hearing Officer may be 
     appealed directly to the Board, without review by the 
     Executive Director.
     Response
       The Board has approved a rule that eliminates the 
     requirement that the Executive Director review motions to 
     disqualify a Hearing Officer and provides for Board review of 
     the denial of a motion to disqualify during the appeal to the 
     Board, if any, of the Hearing Officer's decision on the 
     merits.

                       Admissibility of Evidence

     Summary of Comments
       Two commenters suggested that the procedural rules should 
     not require a Hearing Officer to apply the Federal Rules of 
     Evidence. One commenter was concerned that the reliance on 
     the Federal Rules of Evidence would require a covered 
     employee to retain an attorney. Another commenter stated that 
     the rules should merely state that the Hearing Officer shall 
     apply the provisions of the Administrative Procedure Act 
     (Sec. 554 through 557 of the Title 5, U.S. Code) (APA), 
     specifically Sec. 556(d) of Title 5, in hearing a case 
     because Section 405(d)(3) of the CAA instructs that the 
     hearing shall be conducted, ``to the greatest extent 
     practicable, in accordance with the principles and 
     procedures'' of those sections of the APA. This commenter 
     asserts that the Federal Rules of Evidence set a ``more 
     restrictive'' standard than that found in the APA and may 
     limit the development of the hearing record.
     Response
       Section 7.09 of the rules has not been modified. The 
     Federal Rules of Evidence clarify and more fully develop the 
     APA provisions regarding evidentiary rulings. They are 
     complementary, not contradictory, to the APA. In addition, 
     the procedural rules require that the Federal Rules of 
     Evidence be applied ``to the greatest extent practicable.'' 
     Accordingly, a Hearing Officer, in his or her discretion, may 
     adapt, or depart from, these rules as warranted. Moreover, as 
     the Federal Rules of Evidence are applicable in the federal 
     courts, the adopted rule provides the collateral benefits of 
     affording some uniformity between the administrative hearing 
     process of the Office of Compliance and civil actions filed 
     in the district courts under Section 408 of the CAA.

                    Informal Resolution of Disputes

     Summary of Comments
       Three comments were received with respect to Section 
     9.03(b) of the proposed rules. Two commenters questioned 
     whether the informal resolution of disputes is permitted 
     under the CAA in light of the requirements of Section 414. 
     Another commenter stated that the proposed rule should be 
     revised because resolution of disputes cannot exist without a 
     mandatory waiver of a covered employee's rights or the 
     commitment by the employing office to an enforceable 
     obligation.
     Response
       Section 9.03 of the rules has been reorganized to clarify 
     its intent and meaning. Before a complaint is filed, an 
     employee and an employing office may agree upon a mutually 
     satisfactory arrangement, thereby resolving the dispute 
     without a waiver by the employee or a commitment by the 
     employing office to an enforceable obligation. The Board has 
     considered the comments but is not persuaded that all early, 
     mutually satisfactory resolutions of disputes between parties 
     must be reduced to writing and approved by the Executive 
     Director under Section 414 of the CAA. Section 9.03 of the 
     rules recognizes that the policy underlying the CAA favors 
     the early resolution of disputes and permits a covered 
     employee for whom counseling and mediation has been 
     successful to withdraw from the dispute resolution process 
     without the requirement that such resolution be reduced to 
     writing and submitted to the Executive Director for approval.

                       Attorney's Fees and Costs

     Summary of Comments
       One commenter suggested that Section 9.03(a) of the 
     proposed rules be modified to prevent requests for attorney's 
     fees during the pendency of an appeal of the Hearing 
     Officer's decision. In this commenter's view, such requests 
     would be ``premature'' because the Board could reverse a 
     Hearing Officer's decision in the complainant's favor, making 
     an award of fees inappropriate.
     Response
       The Board has considered this comment in the context of the 
     applicable provisions of the CAA. Under Section 225(a), if a 
     covered employee is a ``prevailing party,'' the Hearing 
     Officer, Board, or court, as the case may be, may award 
     attorney's fees, expert fees, and any other costs as would be 
     appropriate if awarded under section 717(d) of the Civil 
     Rights Act of 1964. Similarly, Section 405(g) provides that 
     the Hearing Officer shall order, at the time of the final 
     decision, such remedies as are appropriate pursuant to title 
     II'' of the CAA, which includes attorney's fees, if 
     appropriate. These statutory sections contemplate that the 
     Hearing Officer would make an attorney's fee award, if 
     appropriate, without awaiting a decision disposing of the 
     case on appeal.
       In actions involving private sector parties, an award of 
     attorney's fees and costs is not delayed ordinarily by an 
     appeal of the decision on the merits. See generally Fed. R. 
     Civ. P., 58, Fed R. App. Proc., 4(a)(4). The Board has 
     considered the comment and does not find any compelling 
     reason to delay the Hearing Officer's decision on fees and 
     costs simply because the decision on the merits is pending an 
     appeal. Therefore, Section 9.01 of the procedural rules has 
     not been modified.

                             Class Actions

     Summary of Comments
       One commenter questioned whether the proposed rules were 
     intended to prohibit class actions and requested that the 
     rules specifically set forth procedures governing class 
     actions.
     Response
       The procedural rules that have been adopted do not purport 
     to address whether and in what circumstances, if any, 
     employees may pursue class claims. The issue is one that 
     involves substantive legal questions that are not 
     appropriately addressed in these procedural rules.

                          Additional Comments

       Commenters suggested various technical and ministerial 
     changes in the proposed rules which improved their clarity 
     and effectiveness and were consistent with the policy 
     underlying the particular provisions. Those changes have been 
     made and are included in the published rules, which are 
     ``red-lined'' to indicate all changes made.
       Several other suggestions, such as what information the 
     Office will include in certain notifications and how it will 
     handle telephonic requests for counseling, will be and are 
     best handled as part of the Office's internal operational 
     process rather than codified in the procedural rules. 
     Similarly, requests that the Senate Chief Counsel for 
     Employment or the House Office of General Counsel receive 
     certain notifications during the dispute-resolution process 
     are best handled by House and Senate internal procedures 
     rather than in the Office's procedural rules, particularly 
     because the confidentiality provisions of the CAA preclude 
     the Office from disclosing the existence of a particular 
     proceeding to individuals other than the parties or their 
     designated representatives. However, to the extent that the 
     commenters sought such notification in order to file an 
     amicus curiae brief, it should be noted that the Board may, 
     in certain cases, solicit such briefs. In those cases the 
     Board will employ appropriate safeguards to ensure that the 
     identity of the participants in any proceeding is not 
     disclosed.
       Finally, commenters suggested other additions or 
     modifications to the procedural rules such as not allowing 
     additional time for filings when documents are served by 
     mail, permitting more time for the filing of responses, the 
     imposition of more formal and detailed discovery procedures, 
     the holding of pre-hearing conference at a later date than 
     that proposed, a requirement that parties file pre-hearing 
     memoranda and limitations on a party's ability to object to 
     testimony or the calling of a witness. The Board is of the 
     view that the Office's procedures should be neither 
     cumbersome nor onerous for the parties who wish to 
     participate in the CAA's administrative dispute resolution 
     process and that the short time frames under the CAA, 
     particularly the 60-day period between complaint and hearing, 
     should be fully available for the preparation and processing 
     of claims. It is the Board's considered judgment that to 
     incorporate the foregoing or similar suggestions in the 
     procedural rules would have the undesired effect of 
     discouraging the use of the administrative process and, 
     thereby, encouraging the use of the federal civil process.

                      Part 1--Office of Compliance


                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. 1.07 Breach of Confidentiality Provisions
     Sec. 1.01 Scope and policy
       These rules of the Office of Compliance govern the 
     procedures for consideration and 

[[Page H15648]]
     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 civilian employees and 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.
       (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 Time
       (a) Method of Filing. Documents may be filed in person or 
     by mail, including express, overnight and other expedited 
     delivery. Requests for counseling under Section 2.03, 
     requests for mediation under Section 2.04 and complaints 
     under Section 2.06 of these rules may also be filed by 
     facsimile (FAX) transmission. In addition, the Board or a 
     Hearing Officer may order other documents to be filed by FAX. 
     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, SE., Washington, DC, 20540-1999, 
     before 5:00 p.m. Eastern Time on the last day of [the 
     expiration of] the applicable time period.
       (2) Mailing. (i) If mailed, including express, overnight 
     and other expedited delivery, a request for mediation or a 
     complaint is deemed filed on the date of its receipt in the 
     Office [of Compliance]. (ii) A document, other than a request 
     for mediation or a complaint, is deemed filed on the date of 
     its postmark or proof of mailing to the Office. 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 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 last day of 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, provided that the 
     status report indicates the date of the FAX, the receiver's 
     FAX number, the number of pages included in the FAX, and that 
     transmission was completed.
       (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, first-class 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, the Office may withhold or 
     place under seal identifying details or other necessary 
     matters [may be deleted and placed under seal] and, in each 
     case, the reason for the withholding or sealing [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.
       (e) Release of records for judicial action. The records of 
     Hearing officers and the Board may be made public if required 
     for the purpose of judicial review under Section 407 of the 
     Act.
       (f) Access by Committees of Congress. At the discretion of 
     the Executive Director, the Executive Director may provide to 
     the Committee on Standards of Official Conduct of the House 
     of Representatives and the Select Committee on Ethics of the 
     Senate access to the records of the hearings and decisions of 
     the Hearing Officers and the Board, including all written and 
     oral testimony in the possession of the Office. The 
     identifying information in these records may be redacted at 
     the discretion of the Executive Director. The Executive 
     Director shall not provide such access until the Executive 
     Director has consulted with the individual filing the 
     complaint at issue, and until a final decision has been 
     entered under Section 405(g) or 406(e) of the Act.
     
[[Page H15649]]

     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 or employing office specifies 
     otherwise and until such time as that individual or employing 
     office notifies the Executive Director of an amendment or 
     revocation of the designation of representative. Where a 
     designation of representative is in effect, 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 may [might] 
     be imposed for a violation of those requirements.
     Sec.  1.07 Breach of confidentiality Provisions
       (a) In General. Section 416(a) of the CAA provides that 
     counseling under section 402 shall be strictly confidential, 
     except that the Office and a covered employee may agree to 
     notify the employing office of the allegations. Section 
     416(b) provides that all mediation shall be strictly 
     confidential. Section 416(c) provides that all proceedings 
     and deliberations of hearing officers and the Board, 
     including any related records shall be confidential, except 
     for release of records necessary for judicial actions, access 
     by certain committees of Congress, and publication of final 
     certain final decisions. See also Sections 1.06 and 2.10 of 
     these rules.
       (b) Prohibition. Unless specifically authorized by the 
     provisions of the CAA or by order of the Board, the Hearing 
     Officer or a court, or by the procedural rules of the Office, 
     no participant in counseling, mediation or other proceedings 
     made confidential under section 461 of the CAA 
     (``confidential proceedings'') may disclose the contents or 
     records of those proceedings to any person or entity.
       (c) Participant. For the purposes of this rule, participant 
     means any individual, employing office or party, including a 
     designated representative, that 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 which is expressly or by necessity deemed 
     confidential under the Act or these rules.
       (d) Contents or records of confidential proceedings. For 
     the purpose of this rule, the contents or records of 
     counseling, mediation or other proceeding includes the 
     information disclosed by participants to the proceedings, and 
     records disclosed by either the opposing party, witnesses or 
     the Office. Notwithstanding these rules, a participant is 
     free to disclose facts and other information obtained from 
     any source outside of the confidential proceedings. For 
     example, information forming the basis for the allegation of 
     a complaining employee may be disclosed by that employee, 
     provided that the information contained in those allegations 
     was not obtained in a confidential proceeding. However, the 
     employing office or representatives other than the 
     complaining party's representative (or, in some cases, the 
     Office) may not disclose that information. Nothing in these 
     rules prohibit a bona fide representative of a party under 
     Section 1.05 from engaging in communications with that party 
     for the purpose of participation in the proceedings, provided 
     that such disclosure is not made in the presence of 
     individuals not reasonably necessary to the representative's 
     representation of that party.
       (e) Violation of confidentiality. Any complaint regarding a 
     violation of the confidentiality provisions must be made to 
     the Executive Director no later than 30 days after the date 
     of the alleged violation. Such complaints may be referred by 
     the Executive Director to a Hearing Officer. The Hearing 
     Officer is also authorized to initiate proceedings on his or 
     her own initiative, or at the direction of the Board, if the 
     alleged violation occurred in the context of Board 
     proceedings. Upon a finding of a violation of the 
     confidentiality provisions, the Hearing Officer, after notice 
     and hearing, may impose an appropriate sanction, which may 
     include any of the sanctions listed in section 7.02 of these 
     rules, as well as any of the following:
       (i) An order that the matters regarding which the violation 
     occurred or any other designated facts shall be taken to be 
     established against the violating party for the purposes of 
     the action in accordance with the claim of the other party;
       (ii) An order refusing to allow the violating party to 
     support or oppose designated claims or defenses, or 
     prohibiting him from introducing designated matters in 
     evidence;
       (iii) An order striking out pleadings or parts thereof, or 
     staying further proceedings until the order is obeyed, or 
     dismissing with or without prejudice the action or 
     proceedings or any part thereof, or rending a judgment by 
     default against the violating party;
       (iv) In lieu of any of the foregoing orders or in addition 
     thereto, the Hearing Officer shall require the party 
     violating the confidentiality provisions or the 
     representative advising him, or both, to pay, at such time as 
     ordered by the Hearing Officer, the reasonable expenses, 
     including attorney fees, caused by the violation, unless the 
     Hearing Officer finds that the failure was substantially 
     justified or that other circumstances make an award of 
     expenses unjust. Such an order shall be subject to review on 
     appeal of the final decision of the Hearing Officer under 
     section 406 of the Act.

     No sanctions may be imposed under this section except for 
     good cause and the particulars of which must be stated in the 
     sanction order.

Subpart B--Procedures Applicable to Consideration of Alleged Violations 
 of Part A of Title II of the Congressional Accountability Act of 1955

     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) Title I of 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 
     Sections 201 through 206 and 207 of the Act and referenced 
     above [The laws referred to] in Section 2.01(a) of these 
     rules.
     Sec. 2.02 Requests for advice and information
       At any time, an employee or an employing office may seek 
     from the Office of 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) 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; TDD (202) 426-1912.
       (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 

[[Page H15650]]
     these rules shall prevent a counselor from consulting with personnel 
     with the Office concerning a matter in counseling, except 
     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 identify of the employees 
     involved or of employing offices that are the subject of a 
     request for counseling.
       (2) The employee and the 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 
     wavier 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. Nothing in this subsection, however, 
     precludes the employee, the employing office or their 
     representatives from reducing to writing any formal 
     settlement.
       (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 once [at any time] without prejudice to the 
     employee's right to reinstate counseling regarding the same 
     matter, provided that the request to reinstate counseling is 
     received in the Office not later than 180 days after the date 
     of the alleged violation of the Act and 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 and obligation, should the 
     employee choose to pursue his or her claim, 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. The term 
     grievance procedures refers to internal procedures of the 
     Architect of the Capitol and the Capitol Police that can 
     provide a resolution of the matter(s) about which counseling 
     was requested. 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:
       (i) The Executive Director shall recommend to the employee 
     that the employee use the grievance 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 grievance 
     [internal] procedures of the Architect or the Capitol Police 
     Board;
       (ii) After having contacted the Office and having utilized 
     the grievance procedures of the Architect or to the Capitol 
     Police Board, the employee may notify the Office that he or 
     she wishes to return to the procedures under these rules:
       (A) within 10 days after the expiration of the period 
     recommended by the Executive Director, if the matter has not 
     been resolved; or
       (B) within 20 days after service of [receiving] a final 
     decision resulting from [as a result of] the grievance 
     procedures of the Architect or of the Capitol Police Board.
       (iii) The period during which the matter is pending in the 
     internal grievance 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, or if 
     no request to return to the procedures under these rules is 
     received within the applicable time period, 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, if any, 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 that 
     is the subject of the request. 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. (l) The mediation period shall 
     be 30 days beginning on 

[[Page H15651]]
     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 last 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. (l) 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 and 
     may ask the parties to provide written submissions [from the 
     parties].
       (2) The Agreement to Mediate. At the commencement of the 
     mediation, the neutral 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 neural participate, 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 the employee and a representative of the 
     [an] employing office who has actual authority to agree to a 
     settlement agreement on behalf or the employee or the 
     employing office, as the case may be, 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. The written 
     notice to the employee will be sent by certified mail, return 
     receipt requested and it [at the same time, the office] will 
     also 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 when the covered employee is an employee of the Office a 
     neutral shall not consult with any individual within the 
     Office who might be a party or witness [within the Office]. 
     This rule shall also not preclude the Office from reporting 
     statistical information to the Senate and House of 
     Representatives 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.
       (k) Employees of the office of the Architect of the Capitol 
     and the Capitol Police. At any time during the mediation 
     period, the Executive Director may recommend that the 
     employee use the grievance procedures of the Architect of the 
     Capitol and the Capitol Police in accordance with the 
     procedures set forth in Section 203(m) of these rules.
     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, address and telephone number of the employing 
     office against which the complaint is brought;
       (3) the name(s) and title(s) of the individual(s) involved 
     in the conduct that the employee claims is a violation of the 
     Act;
       (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 following conditions: that all parties to the 
     proceeding have adequate notice to prepare to meet the new 
     allegations; that the amendments relate to the violations for 
     which the employee has completed counseling and mediation; 
     and that 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 Sections 2.09 and 7.01(b) below. The 
     Hearing Officer shall not be the counselor involved in or the 
     neutral who mediated the matter under Sections 203 and  2.04 
     of these rules.
     Sec. 2.08 Filing, Service, and Size Limitations of Motions, 
         Briefs, Responses and Other Documents
       (a) Filing with the Office; Number. One original and three 
     copies of all motions, briefs, responses, and 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 motions, briefs, responses and other documents filed 
     with the Office, other than the request for counseling, the 
     request for mediation and complaint [which the Office will 
     serve pursuant to Section 2.06(c) 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, or 
     if represented, the party's representative, 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 and on 
     whom service was made. It shall be the duty of each party 
     [all parties] to notify the Office and all other parties [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. Only 
     with the Hearing Officer's advance approval may either party 
     file additional responses or replies.
       (d) Size limitations. Except as otherwise specified by the 
     Hearing Officer or these rules, no brief, motion, response, 
     or supporting memorandum file with the Office shall exceed 35 
     pages, or 8,750 words, exclusive of the table of contents, 
     table of authorities and 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\"11").
     Sec. 2.09 Dismissal of Complaints
       (a) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss any claim 

[[Page H15652]]
     that the Hearing Officer finds to be frivolous or that fails to state a 
     claim upon which relief may be granted, including, but not 
     limited to, claims that were not advanced in counseling or 
     mediation.
       (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 
     the Act or these rules.
       (c) If any complainant [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 2.09(a)-(c) or 7.16 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 a 
     complainant [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 identify 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 404 of the Act provides that as an 
     alternative to filing a complaint under Section 408 of the 
     Act and Section 2.06 of these rules, a covered employee who 
     receives notice of the end of mediation pursuant to Section 
     403 of the Act and Section 2.04(h) of these rules may elect 
     to file a civil action in accordance with Section 408 of the 
     Act in the United States district court for 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 Proof [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 from another person, including a party, [relevant] 
     information, not privileged, reasonably calculated to lead to 
     the discovery of admissible evidence, for the purpose of 
     assisting that party in developing, preparing and presenting 
     its case at the hearing. This provision shall not be 
     construed to permit any discovery, oral or written, to be 
     taken from employees of the Office or the counselor(s), or 
     the neutral(s) involved in counseling and mediation.
       (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 Office may make any order setting forth the 
     forms and extend of discovery, including orders limiting the 
     number of depositions, 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 
     discoverable [disclosable] 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 of 
     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. However, no subpoena may be issued for the attendance 
     or testimony of an employee of the Office of Compliance.
       (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. The Hearing Officer may waive the 
     time limits stated above for good cause.
       (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
       Subpoenas shall be served in the manner provided under rule 
     45(b) of the Federal Rules of Civil Procedure. 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 Proof [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. The party on whose behalf the 
     subpoena was issued shall file the server's certification 
     with the Hearing Officer.
     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 before the time specified in the 
     subpoena for compliance and not later than [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 shall [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 
     proof [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
         
[[Page H15653]]

     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 Posthearing Briefs
     Sec.  7.15 Closing the record
     [Sec.  7.16 Official Record]
     Sec. 7.16 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 at 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 part, 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 
     fact or 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.
       (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, evidence [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 the 
     order [such request];
       (6) Direct judgment against the non-complying party in 
     whole or in part; or
       (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 such non-compliance [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 complainant 
     [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 promptly rule on the 
     withdrawal motion. If the motion is granted, the Executive 
     Director will appoint another Hearing Officer within 5 days. 
     [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] Hearing Officer 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 (c) 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, shall controls the course 
     of the proceeding, subject to later modification by the 
     Hearing Officer by his or her own motion [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 shall state whether [and the position] 
     the opposing party consents to such [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 

[[Page H15654]]
     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 shall [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, shall [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 shall [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 shall [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 typed 
     lists of the hearing exhibits and the witnesses, excluding 
     [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 or relevant matters.
       (e) If the Hearing Officer concludes that a representative 
     of an employee, witness, or an employing office has a 
     conflict or interest, he or she may, after giving the 
     representative an opportunity to respond, disqualify the 
     representative. In that event, within the time limits for 
     hearing and decision 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 at the 
     party's expense [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 
     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, among other things, 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 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's 
     ruling by the Board will materially advance the completion of 
     the proceeding; and
       (3) whether denial of immediate review will cause undue 
     harm to 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 
     requested to be made by the Board upon review. Response, 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 shall [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 in paragraph (b) [for introductory 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, 
     provided that no stay shall serve to toll the time limits set 
     forth in Section 405(d) of the Act.
       (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 under Section 8.01 from the Hearing Officer's decision 
     issued under Section 7.16 of these rules.
     Sec.  7.14 Posthearing 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 of the hearing
       (a) Except as provided in Section 7.14, 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 hearing record except 
     upon a showing 

[[Page H15655]]
     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 of the Hearing
       [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. 7.16 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 
     8.02[1] 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 
     and order of the Hearing Officer in the records of the 
     Office, an aggrieved party may seek review of that decision 
     and order 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 in 
     accordance with Section 2.08 of these rules. That brief shall 
     identify with particularity those findings or conclusions in 
     the decision and order 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 and order of 
     the Hearing Officer in whole or in part. Where there is no 
     remand the decision of the Board shall be entered in the 
     records of the Office as the final decision of the Board and 
     shall be subject to judicial review.
       (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 decision or report to the Board, as 
     ordered, at the conclusion of proceedings on the remanded 
     matters. Upon receipt of the decision or report, the Board 
     shall determine whether the views of the parties on the 
     content of the decision or report should be obtained in 
     writing and, where necessary, shall fix by order the time for 
     the submission of those views. A decision of the Board 
     following completion of the remand shall be entered in the 
     records of the Office as 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, 
     otherwise not consistent with law;
       (2) not made consistent with required procedures; or
       (3) unsupported by substantial evidence.
       (g) In making determinations under paragraph (f), 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, any portions of depositions admitted into evidence, 
     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, any response 
     thereto, any reply to the response and any other pleadings 
     [and any cross-petition], shall constitute the record in the 
     case.
     Sec. 8.02 Compliance with Final Decisions, Requests for 
         Enforcement
       (a) Unless the Board has, in its discretion, stayed the 
     final decision of the Office during the pendency of an appeal 
     pursuant to Section 407 of the Act, 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 shall 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 under 
     Section 407(a)2 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. The party filing a petition for 
     review shall serve a copy on the opposing party or its 
     representative.

           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 7.16 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 motion [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 opportunity 
     [appointment] to reply, shall rule on the motion [request].
       (b) Form of Motion [Request]. In addition to setting forth 
     the legal and factual bases upon which the attorney's fees 
     and/or costs are sought, a motion for an award of [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 Informal Resolutions and Settlement Agreements
       [(a) Application. This Section applies to formal settlement 
     agreements between parties under Section 414 of the Act.]
       (a) 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.
       (b) Formal Settlement Agreement. The parties may agree 
     formally to settle all or part of a disputed matter in 
     accordance with Section 414 of the Act. 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.

                          ____________________