[Congressional Record Volume 142, Number 130 (Thursday, September 19, 1996)]
[House]
[Pages H10672-H10676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          NOTICE OF ADOPTION OF AMENDMENTS TO PROCEDURAL RULES

                                                    U.S. Congress,


                                          Office of Compliance

                               Washington, DC, September 18, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Speaker: Pursuant to section 303 of the 
     Congressional Accountability Act of 1995 (2 U.S.C. section 
     1383(b), I am transmitting a Notice of Adoption of Amendments 
     to the Procedural Rules, together with a copy of the adopted 
     amendments to the procedural rules. The Congressional 
     Accountability act specifies that the Notice and the 
     amendments to the rules be published in the Congressional 
     Record on the first day on which both Houses of Congress are 
     in session following this transmittal.
           Sincerely,
                                                  Ricky Silberman,
                                               Executive Director.

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


          NOTICE OF ADOPTION OF AMENDMENTS TO PROCEDURAL RULES

       Summary: After considering comments to the Notice of 
     Proposed Rulemaking published July 11, 1996 in the 
     Congressional Record, the Executive Director has adopted and 
     is publishing amendments to the rules governing the 
     procedures for the Office of Compliance under the 
     Congressional Accountability Act of 1995 (P.L. 104-1, 109 
     Stat. 3). The amendments to the procedural 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, D.C. 20540-1999. Telephone No. 202-724-9250.


                       SUPPLEMENTARY INFORMATION:

                             I. Background

       The Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act'') was enacted into law on January 23, 1995. In 
     general, the CAA applies the rights and protections of eleven 
     federal labor and employment law statutes to covered 
     employees and employing offices within the legislative 
     branch. Section 303 of the CAA directs that the Executive 
     Director of the Office of Compliance (``Office'') shall, 
     subject to the approval of the Board of Directors (``Board'') 
     of the Office, adopt rules governing the procedures for the 
     Office, and may amend those rules in the same manner. The 
     procedural rules currently in effect, approved by the Board 
     and adopted by the Executive Director, were published 
     December 22, 1995 in the Congressional Record (141 Cong. R. S 
     19239 (daily ed., Dec. 22, 1995)). The revisions and 
     additions that follow amend certain of the existing 
     procedures by which the Office provides for the consideration 
     and resolution of alleged violations of the laws made 
     applicable under Part A of title II of the CAA, and establish 
     procedures for consideration of matters arising under Part D 
     of title II of the CAA, which is generally effective October 
     1, 1996.
       Pursuant to section 303(b) of the CAA, the Executive 
     Director published for comment a Notice of Proposed 
     Rulemaking in the Congressional Record on July 11, 1996 (142 
     Cong. R. S7685-88, H7450-54 (daily ed., July 11, 1996))

[[Page H10673]]

     inviting comments regarding the proposed amendments to the 
     procedural rules. Three comments were received in response to 
     the NPR: two from Congressional offices and one from a labor 
     organization. After full consideration of the comments 
     received, the Executive Director has, with the approval of 
     the Board, adopted these amendments to the procedural rules.

             II. Consideration of Comments and Conclusions

                      A. Definition of participant

       One commenter suggested deleting the terms ``labor 
     organization'' and ``employing office'' from the definition 
     of ``participant'' found at section 1.07(c) of the proposed 
     rules. The commenter noted that a ``party'' is included in 
     the definition of participant and the term ``party'' is 
     defined in section 1.02(i) of the rules as including a labor 
     organization or employing office.
       The final rule, as adopted and approved, incorporates the 
     modification suggested by the commenter.

           B. Contents or records of confidential proceedings

       One commenter asked that section 1.07(d) of the rules be 
     revised to reflect the commenter s understanding that ``an 
     employing office may acknowledge the existence of a complaint 
     and the general allegations being made by an employee, and 
     the employing office may deny the allegations.'' This 
     commenter further requested that the phrase ``information 
     forming the basis for the allegation,'' found in the same 
     section of the rules, be defined. According to the commenter, 
     the phrase is ambiguous. The commenter did not, however, 
     identify the asserted ambiguity.
       The statute requires that the filing of a complaint and its 
     subject matter be kept confidential. Thus, it is not 
     permissible under the statute, as enacted--much less the 
     procedural rules implementing the statute--for an employing 
     office to disclose the information described. Moreover, no 
     ambiguity has been identified or is apparent which would 
     warrant modifying the proposed rule. Accordingly, the rule 
     has been adopted and approved without modification.

           C. Requests for extension of the mediation period

       Two commenters correctly point out that, although it was 
     noted in the preamble of the NPR that section 2.04(e)(2) is 
     proposed to be modified to allow oral as well as written 
     requests for the extension of the mediation period, the 
     actual text of the proposed revision was inadvertently 
     omitted. Although neither commenter stated an objection to 
     the substance of the proposed revision, one commenter 
     requested that the text of the proposed amendment be 
     published and the comment period be extended prior to its 
     adoption.
       The proposed amendment, and its intent, were clearly 
     explained in the NPR so as to give sufficient notice of the 
     proposed modification. And as the adoption of the amended 
     rule will not work a disservice to any party to a mediation, 
     but rather will enable all parties to more fully utilize the 
     mediation process, the proposed modification to the rule has 
     been adopted and approved.

                         D. Answer to complaint

       All three commenters expressed concern that proposed 
     section 5.01(f) could be interpreted to foreclose a 
     respondent from raising certain affirmative defenses or 
     interposing certain denials. One commenter further urged the 
     adoption of a specific rule that would allow the filing of a 
     motion to dismiss or a motion for a more definitive statement 
     in lieu of an answer.
       With respect to the request that the Executive Director 
     adopt a rule allowing for the filing of the specific motions 
     suggested, it is noted that, although not specifically 
     provided for, such matters are already permitted under the 
     existing procedural rules. Thus, no modification is 
     necessary.
       As to the commenters' other concerns, the language of 
     section 5.01(f), as adopted and approved, has been clarified 
     to provide that only affirmative defenses that could have 
     reasonably been anticipated based on the facts alleged in the 
     complaint shall be deemed waived if not raised in an answer. 
     In addition, the rule has been modified to describe the 
     circumstances under which motions for leave to amend an 
     answer to raise defenses or interpose denials will be 
     granted.

                      E. Withdrawal of complaints

       One commenter argued that the requirement contained in 
     section 5.03 that the withdrawal of a complaint be approved 
     by a Hearing Officer should be deleted because, according to 
     the commenter, under the CAA a complaint may be withdrawn at 
     any time. In the commenter's view, a rule requiring Hearing 
     Officer approval of such a withdrawal is ``an inappropriate 
     exercise of the Executive Director's authority.'' This 
     commenter further took issue with the distinction made in the 
     rule between approval of the withdrawal of a complaint by a 
     covered employee, which must always be approved by a Hearing 
     Officer, and the withdrawal of a complaint by the General 
     Counsel, which may occur without Hearing Officer approval 
     prior to the opening of a hearing.
       Contrary to the commenter's assertion, it is entirely 
     appropriate and, indeed, the norm in our legal system to 
     require approval of the withdrawal of an action after formal 
     proceedings have been initiated. See, e.g., Federal Rule of 
     Civil Procedure 41. Moreover, the different restrictions 
     placed on covered employees and the General Counsel are also 
     appropriate. Under section 220 of the CAA, and the 
     regulations adopted by the Board pursuant to section 220(d) 
     to implement section 220, the General Counsel's prosecutorial 
     discretion has been properly acknowledged by permitting the 
     General Counsel to withdraw a complaint without Hearing 
     Officer approval prior to the opening of the hearing. 
     Accordingly, the final rule, as adopted and approved, has not 
     been modified.

                F. Objections not made are deemed waived

       Two commenters expressed the concern that proposed section 
     7.01(e) could operate to work a disservice to unrepresented 
     parties or to preclude Board consideration of appropriate 
     matters on appeal.
       The rule, as adopted and approved, has been modified. 
     Further, it is noted that a Hearing Officer is always free to 
     consider issues about which objections were not made.

                           G. Reconsideration

       One commenter asked that proposed section 8.02 be clarified 
     to advise parties concerning how the filing of a motion for 
     reconsideration of a Board decision affects the requirements 
     for filing an appeal of that decision.
       The final rule makes clear that the filing of a motion for 
     reconsideration does not relieve a party of the obligation to 
     file a timely appeal.

                           H. Judicial review

       One commenter asserted that section 8.04 should be deleted 
     either as superfluous because it merely reiterates parts of 
     section 407 of the CAA or as confusing because it does not 
     incorporate all of section 407.
       Section 8.04 incorporates the provisions of section 407 
     that are applicable to the provisions of the CAA that are 
     currently in effect. As section 8.04 is neither superfluous 
     nor confusing, the proposed rule has been adopted and 
     approved unmodified.

I. Signing of Pleadings, motions and other filings; violation of rules; 
                               sanctions

       One commenter recommended that ``the Board further 
     elaborate'' on proposed section 9.02 and that there be an 
     extension of time to comment ``after the Board provides 
     further explanation.'' In the event the commenter's 
     recommendation was not accepted, the commenter proposed 
     adding the requirement that a pleading must be warranted by a 
     ``non-frivolous'' argument. Another commenter objected to the 
     possible sanction of attorney s fees, arguing that it could 
     have a chilling effect on individual complainants.
       Section 9.02 of the rules is virtually identical to Rule 11 
     of the Federal Rules of Civil Procedure. Rule 11 has a rich 
     history and tradition and is an essential procedural part of 
     any sound dispute resolution scheme. Therefore, further 
     explanation or modification is unnecessary and, the rule, as 
     adopted and approved, is the same as that proposed.

                       J. Ex parte communications

       Two commenters asked for a definition of the term 
     ``interested person'' as used in proposed section 9.04. One 
     of these commenters argued that, as drafted, the proposed 
     rule appeared to be so broad as to restrict access to the 
     Office of Compliance personnel, including the Executive 
     Director and Deputy Executive Directors. The same two 
     commenters also urged the deletion of proposed section 
     9.04(e)(2), which provides that censure or the suspension or 
     revocation of the privilege of practice before the Office is 
     a possible sanction for engaging in prohibited 
     communications. Both commenters considered such sanctions to 
     be too harsh and questioned the authority of the Board to 
     impose such sanctions. The third commenter urged that section 
     9.04(c)(3)(iii) be modified to disallow communications on 
     matters of general significance because, according to the 
     commenter, such communications could have an impact on 
     specific pending matters. This commenter also expressed 
     concern about the imposition of sanctions on unrepresented 
     complainants who might inadvertently violate the prohibitions 
     on ex parte communications.
       In response to the commenters' concerns, the Executive 
     Director is modifying section 9.04(a)(1) to define 
     ``interested person'' for the purposes of the rule. But, 
     contrary to one commenter's understanding, the rule only 
     prohibits interested persons from engaging in prohibited 
     communications with Hearing Officers and Board members; 
     nothing in the proposed or adopted rule prohibits contact 
     with Office of Compliance personnel, including the Office's 
     statutory appointees. Indeed, interaction between Office 
     personnel and employing offices, covered employees, labor 
     organizations and their agents, as well as other interested 
     individuals or organizations, is encouraged.
       With respect to proposed section 9.04(e)(2), the sanctions 
     of censure or suspension or revocation of the privilege of 
     practice before the Board, although substantial, may properly 
     be imposed in certain circumstances. However, as they are 
     available to the Board under section 9.04(e)(1), proposed 
     section 9.04(e)(2) has been omitted from the final rule. In 
     addition, to further address concerns, language has been 
     added to section 9.04(e)(1) to confirm that sanctions shall 
     be commensurate with the nature of the offense.

           K. Informal resolutions and settlement agreements

       One commenter offered specific suggested revisions to 
     proposed section 9.05(a). The commenter believed that these 
     revisions are necessary to make it clear that section 9.05 
     applies only after a covered employee has initiated 
     counseling.

[[Page H10674]]

       The proposed rule, by its terms, applies only in instances 
     where a covered employee has filed a formal request for 
     counseling. Moreover, in the NPR, it was specifically noted 
     that the rule is being amended to make it clear that section 
     9.05 of the rules applies only where covered employees have 
     initiated proceedings under the CAA. Accordingly, the 
     proposed rule has been adopted and approved without 
     modification.

                         L. Additional comments

       Two of the commenters also offered several comments and 
     suggestions on existing procedural rules and other matters 
     that were not the subject of or germane to the proposals in 
     the NPR. For example, the commenters suggested: (1) changes 
     in the special procedures for the Architect of the Capitol 
     and Capitol Police; (2) a rule allowing parties to negotiate 
     changes to the Agreement to Mediate; (3) a procedure by which 
     the parties, instead of the Executive Director, would select 
     Hearing Officers; (4) procedures by which the Office would 
     notify employing offices of various matters; (5) additional 
     requirements for the filing of a complaint; (6) changes in 
     counseling procedures; and (7) a procedure which would allow 
     parties to petition for the recusal of individual Board 
     members.
       As there was no notice given to the public or interested 
     persons that such amendments to the procedural rules were 
     being considered, it would be inappropriate to amend the 
     rules in the manner requested by the commenters. However, the 
     Office will consider the comments as part of its ongoing 
     review of its operations and, to the extent appropriate, may 
     issue another notice of proposed rulemaking at an appropriate 
     time to address some or all of these comments.
       Signed at Washington, D.C., on this 18th day of September, 
     1996.

                                           R. Gaull Silberman,

                                               Executive Director,
                                             Office of Compliance.

               Adopted Amendment to the Procedural Rules

                          A. Comparison table

       The rules have been reorganized and re-ordered; as a 
     result, some sections have been moved and/or renumbered. 
     Cross-references in appropriate sections of the procedural 
     rules have been modified accordingly. The organizational 
     changes are listed in the following comparison table.

        Former Section No.                              New Section No.
Sec. 2.06  Complaints.........................................Sec. 5.01
Sec. 2.07  Appointment of the Hearing Officer.................Sec. 5.02
Sec. 2.08  Filing, Service and Size Limitations of Motions, Briefs, 
  Responses and Other Documents...............................Sec. 9.01
Sec. 2.09  Dismissal of Complaint.............................Sec. 5.03
Sec. 2.10  Confidentiality....................................Sec. 5.04
Sec. 2.11  Filing of Civil Action.............................Sec. 2.06
Sec. 8.02  Compliance with Final Decisions, Requests for EnforSec. 8.03
Sec. 8.03  Judicial Review....................................Sec. 8.04
Sec. 9.01  Attorney's Fees and Costs..........................Sec. 9.03
Sec. 9.02  Ex Parte Communications............................Sec. 9.04
Sec. 9.03  Settlement Agreements..............................Sec. 9.05
Sec. 9.04  Revocation, Amendment or Waiver of Rules...........Sec. 9.06

               B. Text of Amendments to Procedural Rules

     Sec. 1.01  Scope and policy
       These rules of the Office of Compliance govern the 
     procedures for consideration and resolution of alleged 
     violations of the laws made applicable under Parts A and D 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(c)
       Employee. The term employee includes an applicant for 
     employment and a former employee, except as provided in 
     section 2421.3(b) of the Board s rules under section 220 of 
     the Act.
     Sec. 1.02(i)
       Party. The term party means: (1) the employee or the 
     employing office in a proceeding under Part A of title II of 
     the Act; or (2) the labor organization, individual employing 
     office or employing activity, or, as appropriate, the General 
     Counsel in a proceeding under Part D of title II of the Act.
     Sec. 1.02(j)
       Respondent. The term ``respondent'' means the party against 
     which a complaint is filed.
     Sec. 1.05 Designation of Representative.
       (a) An employee, a witness, a labor organization, 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, labor organization, or employing 
     office specifies otherwise and until such time as that 
     individual, labor organization, 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 or entity shall be 
     computed in the same manner as for unrepresented individuals 
     or entities with service of the documents, however, directed 
     to the representative, as provided.
     Sec. 1.07(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 416 of the CAA 
     (``confidential proceedings'') may disclose the contents or 
     records of those proceedings to any person or entity. Nothing 
     in these rules prohibits 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. Moreover, 
     nothing in these rules prohibits a party or its 
     representative from disclosing information obtained in 
     confidential proceedings for the limited purposes of 
     investigating claims, ensuring compliance with the Act or 
     preparing its prosecution or defense, to the extent that such 
     disclosure is reasonably necessary to accomplish the 
     aforementioned purposes and provided that the party making 
     the disclosure takes all reasonably appropriate steps to 
     ensure that persons to whom the information is disclosed 
     maintain the confidentiality of such information.
     Sec. 1.07(c)
       Participant. For the purposes of this rule, participant 
     means any individual 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.
     Sec. 1.07(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. A participant is free to disclose facts and other 
     information obtained from any source outside of the 
     confidential proceedings. For example, an employing office or 
     its representatives may disclose information about its 
     employment practices and personnel actions, provided that the 
     information was not obtained in a confidential proceeding. 
     However, an employee who obtains that information in 
     mediation or other confidential proceeding may not disclose 
     such information. Similarly, 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 its 
     representatives may not disclose that information if it was 
     obtained in a confidential proceeding.
     Sec. 2.04(a)
       (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 
     discuss alternatives to continuing their dispute, including 
     the possibility 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.
     Sec. 2.04(e)
       (e) Duration and Extension. (1) The mediation period shall 
     be 30 days beginning on the date the request for mediation is 
     received, unless the Office grants an extension.
       (2) The Office may extend the mediation period upon the 
     joint request of the parties. The request may be oral or 
     written and shall be noted 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.
     Sec. 2.04(f)(2)
       (2) The Agreement to Mediate. At the commencement of the 
     mediation, the neutral will ask the parties to sign an 
     agreement prepared by the Office (``the Agreement to 
     Mediate''). The Agreement to Mediate will set out the 
     conditions under which mediation will occur, including the 
     requirement that the participants adhere to the 
     confidentiality of the process. The Agreement to Mediate will 
     also provide that the parties to the

[[Page H10675]]

     mediation will not seek to have the counselor or the neutral 
     participate, testify or otherwise present evidence in any 
     subsequent civil action under section 408 of the Act or any 
     other proceeding.
     Sec. 2.04(h)
       Informal Resolutions and Settlement Agreements. At any time 
     during mediation the parties may resolve or settle a dispute 
     in accordance with section 9.05 of these rules.
     Sec. 5.01 Complaints
       (a) Who may file. (1) An employee who has completed 
     mediation under section 2.04 may timely file a complaint with 
     the Office alleging any violation of sections 201 through 207 
     of the Act.
       (2) The General Counsel may file a complaint alleging a 
     violation of section 220 of the Act.
       (b) When to file. (1) A complaint may be filed by an 
     employee no sooner than 30 days after the date of receipt of 
     the notice under section 2.04(i), but no later than 90 days 
     after receipt of that notice.
       (2) A complaint may be filed by the General Counsel after 
     the investigation of a charge filed under section 220 of the 
     Act.
       (c) Form and Contents. (1) Complaints filed by covered 
     employees. 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:
       (i) the name, mailing address, and telephone number(s) of 
     the complainant;
       (ii) the name, address and telephone number of the 
     employing office against which the complaint is brought;
       (iii) the name(s) and title(s) of the individual(s) 
     involved in the conduct that the employee claims is a 
     violation of the Act;
       (iv) a description of the conduct being challenged, 
     including the date(s) of the conduct;
       (v) 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;
       (vi) a statement of the relief or remedy sought; and
       (vii) the name, address, and telephone number of the 
     representative, if any, who will act on behalf of the 
     complainant.
       (2) Complaints filed by the General Counsel. A complaint 
     filed by the General Counsel shall be typed, signed by the 
     General Counsel or his designee and shall contain the 
     following information:
       (i) the name, address and telephone number of the employing 
     office and/or labor organization alleged to have violated 
     section 220 against which the complaint is brought;
       (ii) notice of the charge filed alleging a violation of 
     section 220;
       (iii) a description of the acts and conduct that are 
     alleged to be violations of the Act, including all relevant 
     dates and places and the names and titles of the responsible 
     individuals; and
       (iv) a statement of the relief or remedy sought.
       (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, as appropriate, relate to 
     the violations for which the employee has completed 
     counseling and mediation, or relate to the charge(s) 
     investigated by the General Counsel; and that permitting such 
     amendments will not unduly prejudice the rights of the 
     employing office, the labor organization, 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 respondent, or 
     its designated representative, by hand delivery or certified 
     mail, 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 receipt of a copy of a 
     complaint or an amended complaint, the respondent 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 on each of the issues raised in 
     the complaint or amended complaint, including admissions, 
     denials, or explanations of each allegation made in the 
     complaint and any affirmative defenses or other defenses to 
     the complaint.
       Failure to file an answer or to raise a claim or defense as 
     to any allegation(s) shall constitute an admission of such 
     allegation(s). Affirmative defenses not raised in an answer 
     that could have reasonably been anticipated based on the 
     facts alleged in the complaint shall be deemed waived. A 
     respondent's motion for leave to amend an answer to interpose 
     a denial or affirmative defense will ordinarily be granted 
     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. 5.03 Dismissal of complaints
       (a) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss any claim that the Hearing Officer finds 
     to be frivolous or that fails to state a claim upon which 
     relief may be granted, 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 the General Counsel or any complainant 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 5.03(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 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 
     Hearing Officer.
       (f) Withdrawal of Complaint by the General Counsel. At any 
     time prior to the opening of the hearing the General Counsel 
     may withdraw his complaint by filing a notice with the 
     Executive Director and the Hearing Officer and by serving a 
     copy on the respondent. After opening of the hearing, any 
     such withdrawal must be approved by the Hearing Officer.
     Sec. 7.04(b)
       Scheduling of the Prehearing Conference. Within 7 days 
     after assignment, the Hearing Officer shall serve on the 
     parties and their designated representatives written notice 
     setting forth the time, date, and place of the prehearing 
     conference.
     Sec. 7.07(e)
       (e) Any evidentiary objection not timely made before a 
     Hearing Officer shall, in the absence of clear error, be 
     deemed waived on appeal to the Board.
     Sec. 7.07(f)
       (f) If the Hearing Officer concludes that a representative 
     of an employee, a witness, a labor organization, or an 
     employing office has a conflict of 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. 8.01(i)
       The Board may invite amicus participation, in appropriate 
     circumstances, in a manner consistent with the requirements 
     of section 416 of the CAA.
     Sec. 8.02 Reconsideration
       After a final decision or order of the Board has been 
     issued, a party to the proceeding before the Board, who can 
     establish in its moving papers that reconsideration is 
     necessary because the Board has overlooked or misapprehended 
     points of law or fact, may move for reconsideration of such 
     final decision or order. The motion shall be filed within 15 
     days after service of the Board's decision or order. No 
     response shall be filed unless the Board so orders. The 
     filing and pendency of a motion under this provision shall 
     not relieve a party of the obligation to file a timely appeal 
     or operate to stay the action of the Board unless so ordered 
     by the Board.
     Sec. 8.04 Judicial review
       Pursuant to section 407 of the Act,
       (a) the United States Court of Appeals for the Federal 
     Circuit shall have jurisdiction over any proceeding commenced 
     by a petition of:
       (1) a party aggrieved by a final decision of the Board 
     under section 406(e) in cases arising under part A of title 
     II, or
       (2) the General Counsel or a respondent before the Board 
     who files a petition under section 220(c)(3) of the Act.
       (b) The U.S. Court of Appeals for the Federal Circuit shall 
     have jurisdiction over any petition of the General Counsel, 
     filed in the name of the Office and at the direction of the 
     Board, to enforce a final decision under section 405(g) or 
     406(e) with respect to a violation of part A or D of title II 
     of the Act.
       (c) The party filing a petition for review shall serve a 
     copy on the opposing party or parties or their 
     representative(s).
     Sec. 9.02 Signing of pleadings, motions and other filings; 
         violation of rules; sanctions
       Every pleading, motion, and other filing of a party 
     represented by an attorney or other designated representative 
     shall be signed by the attorney or representative. A party 
     who is not represented shall sign the pleading, motion or 
     other filing. The signature of a representative or party 
     constitutes a certificate by the signer that the signer has 
     read the pleading, motion, or other filing; that to the best 
     of the signer's knowledge, information, and belief formed 
     after reasonable inquiry, it is well grounded in fact and is 
     warranted by existing law or a good faith argument for the 
     extension, modification, or reversal of existing law, and 
     that it is not interposed for any improper purpose, such as 
     to harass or to cause unnecessary delay or needless increase 
     in the cost of litigation. If a pleading, motion, or other 
     filing is not signed, it shall be stricken unless it is 
     signed promptly after the omission is called to the attention 
     of the person who is required to sign. If a pleading, motion, 
     or other filing is signed in violation of this rule, a 
     Hearing Officer or the Board, as appropriate, upon motion or 
     upon its own initiative, shall impose upon the person who 
     signed it, a represented party, or both, an appropriate 
     sanction, which may include an order to pay to the other 
     party or parties the amount of the reasonable expenses 
     incurred because of the filing of the pleading, motion, or 
     other filing, including a reasonable attorney's fee. A

[[Page H10676]]

     Hearing Officer or the Board, as appropriate, upon motion or 
     its own initiative may also impose an appropriate sanction, 
     which may include the sanctions specified in section 7.02, 
     for any other violation of these rules that does not result 
     from reasonable error.
     Sec. 9.04 Ex parte communications.
       (a) Definitions. (1) The term interested person outside the 
     Office means any covered employee and agent thereof who is 
     not an employee or agent of the Office, any labor 
     organization and agent thereof, any employing office and 
     agent thereof, and any individual or organization and agent 
     thereof, who is or may reasonably be expected to be involved 
     in a proceeding or a rulemaking, and the General Counsel and 
     any agent thereof when prosecuting a complaint proceeding 
     before the Office pursuant to sections 210, 215, or 220 of 
     the CAA. The term also includes any employee of the Office 
     who becomes a party or a witness for a party other than the 
     Office in proceedings as defined in these rules.
       (2) The term ex parte communication means an oral or 
     written communication (a) that is between an interested 
     person outside the Office and a Board member or Hearing 
     Officer who is or may reasonably be expected to be involved 
     in a proceeding or a rulemaking; (b) that is related to a 
     proceeding or a rulemaking; (c) that is not made on the 
     public record; (d) that is not made in the presence of all 
     parties to a proceeding or a rulemaking; and (5) that is made 
     without reasonable prior notice to all parties to a 
     proceeding or a rulemaking.
       (3) For purposes of section 9.04, the term proceeding means 
     the complaint and hearing proceeding under section 405 of the 
     CAA, an appeal to the Board under section 406 of the CAA, a 
     pre-election investigatory hearing under section 220 of the 
     CAA, and any other proceeding of the Office established 
     pursuant to regulations issued by the Board under the CAA.
       (4) The term period of rulemaking means the period 
     commencing with the issuance of an advance notice of proposed 
     rulemaking or of a notice of proposed rulemaking, whichever 
     issues first, and concluding with the issuance of a final 
     rule.
       (b) Exception to Coverage. The rules set forth in this 
     section do not apply during periods that the Board designates 
     as periods of negotiated rulemaking.
       (c) Prohibited Ex Parte Communications and Exceptions. (1) 
     During a proceeding, it is prohibited knowingly to make or 
     cause to be made:
       (i) a written ex parte communication if copies thereof are 
     not promptly served by the communicator on all parties to the 
     proceeding in accordance with section 9.01 of these Rules; or
       (ii) an oral ex parte communication unless all parties have 
     received advance notice thereof by the communicator and have 
     an adequate opportunity to be present.
       (2) During the period of rulemaking, it is prohibited 
     knowingly to make or cause to be made a written or an oral ex 
     parte communication. During the period of rulemaking, the 
     Office shall treat any written ex parte communication as a 
     comment in response to the advance notice of proposed 
     rulemaking or the notice of proposed rulemaking, whichever is 
     pending, and such communications will therefore be part of 
     the public rulemaking record.
       (3) Notwithstanding the prohibitions set forth in (1) and 
     (2), the following ex parte communications are not 
     prohibited:
       (i) those which relate solely to matters which the Board 
     member or Hearing Officer is authorized by law, Office rules, 
     or order of the Board or Hearing Officer to entertain or 
     dispose of on an ex parte basis;
       (ii) those which all parties to the proceeding agree, or 
     which the responsible official formally rules, may be made on 
     an ex parte basis;
       (iii) those which concern only matters of general 
     significance to the field of labor and employment law or 
     administrative practice;
       (iv) those from the General Counsel to the Office or the 
     Board when the General Counsel is acting on behalf of the 
     Office or the Board under any section of the CAA; and
       (v) those which could not reasonably be construed to create 
     either unfairness or the appearance of unfairness in a 
     proceeding or rulemaking.
       (4) It is prohibited knowingly to solicit or cause to be 
     solicited any prohibited ex parte communication.
       (d) Reporting of Prohibited Ex Parte Communications. (1) 
     Any Board member or Hearing Officer who is or may reasonably 
     be expected to be involved in a proceeding or a rulemaking 
     and who determines that he or she is being asked to receive a 
     prohibited ex parte communication shall refuse to do so and 
     inform the communicator of this rule.
       (2) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding who 
     knowingly receives a prohibited ex parte communication shall 
     (a) notify the parties to the proceeding that such a 
     communication has been received; and (b) provide the parties 
     with a copy of the communication and of any response thereto 
     (if written) or with a memorandum stating the substance of 
     the communication and any response thereto (if oral). If a 
     proceeding is then pending before either the Board or a 
     Hearing Officer, and if the Board or Hearing Officer so 
     orders, these materials shall then be placed in the record of 
     the proceeding. Upon order of the Hearing Officer or the 
     Board, the parties may be provided with a full opportunity to 
     respond to the alleged prohibited ex parte communication and 
     to address what action, if any, should be taken in the 
     proceeding as a result of the prohibited communication.
       (3) Any Board member involved in a rulemaking who knowingly 
     receives a prohibited ex parte communication shall cause to 
     be published in the Congressional Record a notice that such a 
     communication has been received and a copy of the 
     communication and of any response thereto (if written) or 
     with a memorandum stating the substance of the communication 
     and any response thereto (if oral). Upon order of the Board, 
     these materials shall then be placed in the record of the 
     rulemaking and the Board shall provide interested persons 
     with a full opportunity to respond to the alleged prohibited 
     ex parte communication and to address what action, if any, 
     should be taken in the proceeding as a result of the 
     prohibited communication.
       (4) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly receives a prohibited ex parte 
     communication and who fails to comply with the requirements 
     of subsections (1), (2), or (3) above, is subject to internal 
     censure or discipline through the same procedures that the 
     Board utilizes to address and resolve ethical issues.
       (e) Penalties and Enforcement. (1) Where a person is 
     alleged to have made or caused another to make a prohibited 
     ex parte communication, the Board or the Hearing Officer (as 
     appropriate) may issue to the person a notice to show cause, 
     returnable within a stated period not less than seven days 
     from the date thereof, why the Board or the Hearing Officer 
     should not determine that the interests of law or justice 
     require that the person be sanctioned by, where applicable, 
     dismissal of his or her claim or interest, the striking of 
     his or her answer, or the imposition of some other 
     appropriate sanction, including but not limited to the award 
     of attorneys' fees and costs incurred in responding to a 
     prohibited ex parte communication. Sanctions shall be 
     commensurate with the seriousness and unreasonableness of the 
     offense, accounting for, among other things, the advertency 
     or inadvertency of the prohibited communication.
       (2) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly makes or causes to be made a 
     prohibited ex parte communication is subject to internal 
     censure or discipline through the same procedures that the 
     Board utilizes to address and resolve ethical issues.
     Sec. 9.05(a)
       (a) Informal Resolution. At any time before a covered 
     employee who has filed a formal request for counseling 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.

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