[Congressional Record Volume 162, Number 163 (Tuesday, November 15, 2016)]
[Senate]
[Pages S6358-S6376]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOTICE OF ADOPTED RULEMAKING
Mr. HATCH. Mr. President, I ask unanimous consent that the attached
documentation from the Office of Compliance be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Congress,
Office of Compliance,
Washington, DC, November 15, 2016.
Hon. Orrin G. Hatch,
President Pro Tempore of the U.S. Senate,
Washington, DC.
Dear Mr. President: Section 303 of the Congressional
Accountability Act of 1995 (CAA), 2 U.S.C. 1383, requires
that, with regard to the amendment of the rules governing the
procedures of the Office, the Executive Director ``shall,
subject to the approval of the Board [of Directors], adopt
rules governing the procedures of the Office . . . .'' and
``[u]pon adopting rules . . . shall transmit notice of such
action together with a copy of such rules to the Speaker of
the House of Representatives and the President pro tempore of
the Senate for publication in the Congressional Record on the
first day of which both Houses are in session following such
transmittal.''
Having published a general notice of proposed rulemaking in
the Congressional Record on September 9, 2014, provided a
comment period of at least 30 days after publication of such
notice, and obtained the approval of the Board of Directors
for the adoption of these rules as required by Section 303(a)
and (b) of the CAA, 2 U.S.C. 1383(a) and (b), I am
transmitting the attached Amendments to the Procedural Rules
of the Office of Compliance to the President Pro Tempore of
the United States Senate for publication in the Senate
section of the Congressional Record on the first day on which
both Houses are in session following the receipt of this
transmittal. In accordance with Section 303(b) of the CAA,
these amendments to the Procedural Rules shall be considered
issued by the Executive Director and in effect as of the date
on which they are published in the Congressional Record.
Any inquiries regarding this notice should be addressed to
Barbara J. Sapin, Executive Director of the Office of
Compliance, Room LA-200, 110 2nd Street, S.E., Washington, DC
20540.
Sincerely,
Barbara J. Sapin,
Executive Director,
Office of Compliance.
=========================== NOTE ===========================
On page S6358, November 15, 2016, near the top of the third
column, the following language appears: NOTICE OF
PROPOSEDRULEMAKING U.S. CONGRESS, OFFICE OF COMPLIANCE,
Washington, DC, November 15, 2016. Hon. PAUL D. RYAN, Speaker of
the House of Representatives, Washington, DC. DEAR MR. SPEAKER:
Section 303 of the Congressional Accountability Act of 1995 (CAA),
2 U.S.C. 1383, requires that, with regard to the amendment of the
rules governing the procedures of the Office, the Executive
Director ``shall, subject to the approval of the Board [of
Directors], adopt rules governing the procedures of the Office . .
. .'' and ``[u]pon adopting rules. . . . shall transmit notice of
such action together with a copy of such rules to the Speaker of
the House of Representatives and the President pro tempore of the
Senate for publication in the Congressional Record on the first
day of which both Houses are in session following such
transmittal.'' Having published a general notice of proposed
rulemaking in the Congressional Record on September 9, 2014,
provided a comment period of at least 30 days after publication of
such notice, and obtained the approval of the Board of Directors
for the adoption of these rules as required by Section 303(a) and
(b) of the CAA, 2 U.S.C. 1383(a) and (b), I am transmitting the
attached Amendments to the Procedural Rules of the Office of
Compliance to the Speaker of the United States House of
Representatives for publication in the House section of the
Congressional Record on the first day on which both Houses are in
session following the receipt of this transmittal. In accordance
with Section 303(b) of the CAA, these amendments to the Procedural
Rules shall be considered issued by the Executive Director and in
effect as of the date on which they are published in the
Congressional Record. Any inquiries regarding this notice should
be addressed to Barbara J. Sapin, Executive Director of the Office
of Compliance, Room LA-200, 110 2nd Street, S.E., Washington, DC
20540. Sincerely, BARBARA J. SAPIN, Executive Director, Office of
Compliance.
The online Record has been corrected to read: U.S. CONGRESS,
OFFICE OF COMPLIANCE, Washington, DC, November 15, 2016. Hon.
ORRIN G. HATCH, President Pro Tempore of the U.S. Senate,
Washington, DC. DEAR MR. PRESIDENT: Section 303 of the
Congressional Accountability Act of 1995 (CAA), 2 U.S.C. 1383,
requires that, with regard to the amendment of the rules governing
the procedures of the Office, the Executive Director ``shall,
subject to the approval of the Board [of Directors], adopt rules
governing the procedures of the Office . . .'' and ``[u]pon
adopting rules . . . shall transmit notice of such action together
with a copy of such rules to the Speaker of the House of
Representatives and the President pro tempore of the Senate for
publication in the Congressional Record on the first day of which
both Houses are in session following such transmittal.'' Having
published a general notice of proposed rulemaking in the
Congressional Record on September 9, 2014, provided a comment
period of at least 30 days after publication of such notice, and
obtained the approval of the Board of Directors for the adoption
of these rules as required by Section 303(a) and (b) of the CAA, 2
U.S.C. 1383(a) and (b), I am transmitting the attached Amendments
to the Procedural Rules of the Office of Compliance to the
President Pro Tempore of the United States Senate for publication
in the Senate section of the Congressional Record on the first day
on which both Houses are in session following the receipt of this
transmittal. In accordance with Section 303(b) of the CAA, these
amendments to the Procedural Rules shall be considered issued by
the Executive Director and in effect as of the date on which they
are published in the Congressional Record. Any inquiries regarding
this notice should be addressed to Barbara J. Sapin, Executive
Director of the Office of Compliance, Room LA-200, 110 2nd Street,
S.E., Washington, DC 20540. Sincerely, BARBARA J. SAPIN, Executive
Director, Office of Compliance.
========================= END NOTE =========================
FROM THE EXECUTIVE DIRECTOR OF THE OFFICE OF COMPLIANCE
NOTICE OF ADOPTED RULEMAKING (``NARM''),
ADOPTED AMENDMENTS TO THE RULES OF PROCEDURE, NOTICE OF
ADOPTED RULEMAKING, AS REQUIRED BY 2 U.S.C. Sec. 1383,
THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995, AS AMENDED
(``CAA'').
INTRODUCTORY STATEMENT
On September 9, 2014, a Notice of Proposed Amendments to
the Procedural Rules of the Office of Compliance (``Office''
or ``OOC''), as amended in June 2004 (``2004 Procedural
Rules'' or ``2004 Rules'') was published in the Congressional
Record at S5437, and H7372. As required under the
Congressional Accountability Act of 1995 (``Act'') at section
303(b) (2 U.S.C. 1383(b)), a 30 day period for comments from
interested parties followed. In response to the Notice of
Proposed Rulemaking, the Office received a number of comments
regarding the proposed amendments. Specifically, the Office
received comments from the Committee on House Administration,
the Office of the Senate Chief Counsel for Employment, the
U.S. Capitol Police, the Architect
[[Page S6359]]
of the Capitol, and the U.S. Capitol Police Labor Committee.
The Executive Director and the Board of Directors of the
Office of Compliance have reviewed all comments received
regarding the Notice, have made certain additional changes to
the proposed amendments in response thereto, and herewith
issue the final Amended Procedural Rules (Rules) as
authorized by section 303(b) of the Act, which states in
part: ``Rules shall be considered issued by the Executive
Director as of the date on which they are published in the
Congressional Record.'' See, 2 U.S.C. 1383(b).
These Procedural Rules of the Office of Compliance may be
found on the Office's web site: www.compliance.gov.
Supplementary Information: The Congressional Accountability
Act of 1995 (CAA), PL 104-1, was enacted into law on January
23, 1995. The CAA applies the rights and protections of 13
federal labor and employment statutes to covered employees
and employing offices within the Legislative Branch of
Government. Section 301 of the CAA (2 U.S.C. 1381)
established the Office of Compliance as an independent office
within that Branch. Section 303 (2 U.S.C. 1383) directed that
the Executive Director, as the Chief Operating Officer of the
agency, adopt rules of procedure governing the Office of
Compliance, subject to approval by the Board of Directors of
the Office of Compliance. The rules of procedure generally
establish the process by which alleged violations of the laws
made applicable to the Legislative Branch under the CAA will
be considered and resolved. The rules include procedures for
counseling, mediation, and election between filing an
administrative complaint with the Office of Compliance or
filing a civil action in U.S. District Court. The rules also
include the procedures for processing Occupational Safety and
Health investigations and enforcement, as well as the process
for the conduct of administrative hearings held as the result
of the filing of an administrative complaint under all of the
statutes applied by the Act, for appeals of a decision by a
Hearing Officer to the Board of Directors of the Office of
Compliance, and for the filing of an appeal of a decision by
the Board of Directors to the United States Court of Appeals
for the Federal Circuit. The rules also contain other matters
of general applicability to the dispute resolution process
and to the operation of the Office of Compliance.
The Office's response and discussion of the comments is
presented below:
Discussion
SUBPART A--GENERAL PROVISIONS OF THE RULES
There were a number of comments submitted in reference to
the proposed amendments made to Subpart A, General Provisions
of the Rules. With respect to the amendments to the Filing
and Computation of Time under section 1.03(a), one commenter
noted that the provisions allowing the Board, Hearing
Officer, Executive Director and General Counsel to determine
the method by which documents may be filed in a particular
proceeding ``in their discretion'' are overly broad. The
commenter also requested clarification on whether there would
be different methods used for filing in the same case,
whether five (5) additional days would be added regardless of
the type of service, and whether the OOC would inform the
opposing party of the prescribed dates for a response.
The Office does not find as overly broad the amendment
allowing the Board, Hearing Officer, Executive Director, and
General Counsel the discretion to determine the method by
which documents may be filed. The 2004 version of these
Rules, as well as the CAA, confer the Office and independent
Hearing Officers with wide discretion in conducting hearings
and other processes. The Office further finds that there is
no need to clarify whether different methods can be used in
the same case, as long as whatever method chosen is made
clear to parties. Finally, as the Rules are clear that five
additional days will be added when documents are served by
mail, the Office does not believe that it is necessary to
include a requirement that the OOC inform parties of the
specific dates that are required for response. That
information can be ascertained from information on the method
of filing.
As the OOC has indicated that it intends to move toward
electronic filing, one commenter voiced support for the
Office's decision to permit parties to file electronically.
However, the commenter indicated that it would be beneficial
for the proposed Rules to contain procedures for storing
electronic material in a manner that will protect
confidentiality and ensure compliance with section 416 of the
CAA.
The Office routinely handles all materials in a secure and
confidential manner, regardless of the format. Because the
Office's confidential document management is covered in its
own standard operating procedures, there is no need to
include those procedures in these Rules.
Section 1.03(a)(2)(ii) of the Proposed Rules provided that
documents other than requests for mediation that are mailed
were deemed to be filed on the date of their postmark.
However, mailed requests for mediation were to be deemed
filed on the date they were received in the Office.
(1.03(a)(2)(i)) This was a proposed change to the Rules that
had established the date of filing for requests for mediation
and complaints as the date when they were received in the
Office. One commenter asserted that in changing the date of
filing for complaints served by mail from the date received
in the Office to the date of the postmark, the rules gave a
covered employee an additional five days to file an OOC
complaint. Upon review of all comments, the Office has
determined that, because mail delivery on the Capitol campus
is irregular due to security measures, it is best to use the
date of postmark as the date of filing. This will ensure that
all filings that under ordinary circumstances would be timely
would not be deemed untimely because of any delay in mail
delivery on the Hill. This includes the filing of a request
for mediation, which will be deemed received in the Office as
the date of postmark. In using the postmark as the date of
filing for all mailed documents, the Office sees no advantage
gained in one method of filing over the other, but rather
views this as a way of curtailing any disadvantage to those
who use mail for filing at a time when there are often
significant delays in mail delivery to offices on the Hill.
In sections 1.03(a)(3) and (4) of the Proposed Rules, the
Office changed the filing deadline for fax and electronic
submissions from 5:00 pm Eastern Time on the last day of the
applicable filing period to 11:59 pm Eastern Time on the last
day of the applicable filing period. One commenter noted that
while submissions under section 1.03(a)(3) require in person
hand delivery by 5:00 p.m., this deadline is inconsistent
with the 11:59 p.m. deadline required for faxed and
electronically filed documents. The commenter stated that the
filing deadlines should be the same for all types of delivery
and receipt options.
This is not an unusual situation. Often there are different
filing deadlines, depending on the mode of delivery. However,
to ensure consistency, the Office has changed the language so
that the same time will be used for filing all documents
coming into the Office.
Under Proposed Rule section 1.03(a)(4), commenters noted
that there was ambiguity regarding email time display and one
commenter proposed the addition of a new rule requiring
prompt acknowledgement of the receipt of an emailed document
to ensure that it has been received by the parties.
In view of this comment, the Office added language to the
Adopted Rules, providing that when the Office serves a
document electronically, the service date and time will be
based on the document's timestamp information. No further
change is necessary. Confirmation of the transmittal of a
document can be shown from the date and timestamp on the
email, which is typically more reliable than a recipient's
acknowledgment.
One commenter noted that under Proposed Rule section
1.03(c), there should be some way of notifying parties when
the Office is ``officially closed for business.'' The Office
determined that it is not necessary to include in the
Procedural Rules how the Office will notify parties of
closures. The Office generally follows the Office of
Personnel Management closure policy with respect to inclement
weather and other official government closures. Further,
information on the Office's closures appears on the Office's
website at www.compliance.gov and is provided on the Office's
mainline at 202.724.9250.
In response to the proposed changes to the new section 1.06
(formerly section 1.04) in the Proposed Rules, several
commenters indicated that while records of Hearing Officers
may be made public if required for the purposes of judicial
review under Section 407, the Procedural Rules do not address
circumstances where records are also necessary for purposes
of civil action review under section 408 for res judicata
purposes.
After review of these comments, the Office believes that
this concern is adequately addressed in the Adopted Rules.
Section 1.08(d), includes a broader statement concerning the
appropriate use of records in other proceedings, and allows
the submission of a Hearing Officer's decision in another
proceeding, as long as the requirements in section 1.08(d)
are met. Nothing in these Rules prohibits a party or its
representative from disclosing information obtained in
confidential proceedings when it is reasonably necessary to
investigate claims, ensure compliance with the Act or prepare
a prosecution or defense. While section 1.08(d) does allow
for the submission of Hearing Officer decisions under the
appropriate circumstances, it also serves to preserve the
confidentiality of these records. Thus, the party making the
disclosure shall take all reasonably appropriate steps to
ensure that persons to whom the information is disclosed
maintain the confidentiality of such information.
With respect to the new section 1.07, Designation of a
Representative, a commenter noted that the requirement that
only one person could be designated as a representative was
problematic since there have been situations when more than
one attorney would be needed to represent an employing office
or employee. The suggestion was made that the limitations
apply only to a party for point of contact purposes. As the
purpose of limiting the number of designated representatives
was to eliminate any confusion caused by having to serve more
than one representative per party, the Office has modified
the language to indicate that only one representative may be
designated to receive service.
There were several comments to section 1.07(c) of the
Proposed Regulations. The proposals to section 1.07(c)
provided that in the event of a revocation of a designation
of representative, the Executive Director, OOC General
Counsel, Mediator, Hearing Officer or OOC Board has the
discretion to grant a
[[Page S6360]]
party ``additional time . . . to allow the party to designate
a new representative as consistent with the Act.'' The
commenters noted that the CAA is a waiver of sovereign
immunity that must be strictly construed and that there is no
discretion to extend statutory deadlines to give a party time
to designate a new representative, including time to request
counseling under section 402, to request and complete
mediation under section 403, to file a complaint or initiate
a civil action under section 404, or to file an appeal under
section 406 of the CAA. Commenters urged that the rule be
modified to clarify this point.
As the adopted language notes that additional time may be
granted only as consistent with the CAA, it should be clear
that in granting any additional time to designate a new
representative, the Executive Director, OOC General Counsel,
Mediator, Hearing Officer or OOC Board will ensure that
statutory deadlines are observed.
Deletion of the section 1.07 of the 2004 Procedural Rules,
the breach of confidentiality provision, generated the most
comments. Commenters generally noted that the Proposed
Procedural Rules would eliminate the existing process for
filing a complaint based on violation of the confidentiality
provisions of section 416 of the CAA. The effect of this
proposed rule change would be that, if there was a
confidentiality breach, a party could obtain relief only
pursuant to an ``agreement'' facilitated by the Mediator
during the mediation period or through sanctions issued by a
Hearing Officer during a section 405 proceeding (see Proposed
Procedural Rules sections 2.04(k) and 7.12(b)). Commenters
expressed concern that under the Proposed Rules, if an
individual violated section 416 of the CAA at any other time
in the process, no remedy would be available. Most commenters
felt that this was inconsistent with the confidentiality
requirements of the CAA, and that the Procedural Rules should
include a complaint procedure for resolving independent
violations of section 416. For example, one commenter noted
that, under the Proposed Procedural Rules, if parties agree
to a settlement during mediation, there is no remedy
available to the employing office if the employee decides to
publicize the terms of the settlement or any statements made
during mediation. Similarly, if a covered employee never
initiates a section 405 proceeding, but instead drops the
matter or initiates a section 408 proceeding, the Proposed
Procedural Rules would allow the employee to publicize any
statements made during mediation, with no fear of sanction.
The uncertainty regarding confidentiality would result in
parties being less candid in mediation and, thereby,
undermine it as a dispute resolution process.
Section 1.07 of the 2004 Procedural Rules, permitting the
filing with the Executive Director of stand-alone complaints
of violation of the confidentiality provisions, has been
deleted because the OOC Board held, as a matter of statutory
interpretation of the CAA, that it did not have the statutory
authority to independently resolve a breach of
confidentiality action brought under the Procedural Rules,
without the existence of an underlying complaint under
section 405 of the CAA. Taylor v. U.S. Senate Budget Comm.
No. 10-SN-31 (CFD), 2012 WL 588440 (OOC Board Feb. 14, 2012);
see Massa v. Katz & Rickher, No. 10-HS-59 (CFD) (OOC Board
May 8, 2012) (dismissing complaint alleging breach of
confidentiality on subject-matter jurisdiction grounds
because the complainant ``never filed a complaint [under
section 405 of the CAA] against an employing office alleging
violation of sections 201-207 of the CAA.''). In other words,
the Board's authority to adjudicate a breach of
confidentiality is limited to employment rights proceedings
initiated by a complaint filed by a covered employee against
an employing office alleging violations of laws specifically
incorporated by the CAA under 2 U.S.C. Sec. Sec. 1311-1317.
Section 405 of the CAA, by its terms, limits the filing of a
complaint to a covered employee who has completed mediation
and section 406 of the CAA limits Board review to any party
aggrieved by the decision of a Hearing Officer under section
405(g) of the CAA. For this reason, the Board determined that
section 1.07(e) of the Procedural Rules could only apply to
those orders and decisions regarding sanctions that were in a
final order issued under section 405(g). While the CAA and
the procedural rules mandate that parties in counseling,
mediation, and hearing maintain confidentiality, there is no
statutory provision within the CAA which addresses the
authority of a Hearing Officer or the Board to address
independent breaches of confidentiality. See 2 U.S.C.
Sec. 1416
Other commenters noted that under Taylor, supra, the Board
also appears to take the position that there is no provision
in the CAA authorizing an employing office to bring a breach
of confidentiality claim against a complainant. See also,
Eric J.J. Massa v. Debra S. Katz and Alexis H. Rickher, Case
No.: 10-HS-59 (CFD), (May 8, 2012) and Taylor. One commenter
strongly disagreed with this conclusion, noting that just as
the confidentiality obligations of the CAA clearly and
unambiguously apply equally to employing offices and
employees, so too should the ability to assert claims for
breach of statutory confidentiality. The commenter asserts
that a contrary reading of the statute, as appears to have
been implicitly suggested in the above-referenced cases
(denying employing offices the ability to bring claims for
breach of confidentiality against employees), is inconsistent
with the purpose and intent of the confidentiality provisions
of the CAA.
Again, because under section 405 of the CAA, the filing of
a complaint is limited to a covered employee who has
completed counseling and mediation (and the General Counsel
in limited circumstances), and there is no mechanism in the
CAA for enforcement of confidentiality breaches outside of a
section 405 proceeding, there is similarly no process in the
CAA under which an employing office can initiate a breach of
confidentiality claim that can be enforced. The Procedural
Rules, however, do provide that within the context of a
section 405 proceeding, an employing office may make a breach
of confidentiality claim and the Hearing Officer is
authorized to order a number of sanctions if a breach is
found.
Comments were also made that limiting remedies for breaches
of confidentiality to procedural and evidentiary sanctions
was inappropriate and, that the effect of that limitation was
to make the penalty for breach of confidentiality nonexistent
for a complainant who chooses not to file a complaint with
the OOC because no procedural or evidentiary sanctions would
ever be applicable. The commenter requested that the Rules
clarify that monetary damages may be awarded against both
employing offices and employees for a demonstrated breach of
confidentiality.
In the absence of any express authority, the Board has
decided that ``the Office and its Hearing Officers have the
power to control and supervise proceedings conducted under
Sections 402, 403, and 405 of the [CAA], and may rely on this
power to impose appropriate sanctions for a breach of the
[CAA's] confidentiality requirements.'' Taylor v. U.S. Senate
Budget Comm; Massa v. Katz & Rickher. The Board has further
held that a breach of the CAA's confidentiality provisions
does not independently entitle an employee to monetary
damages absent a violation of one of the ``money-mandating''
statutes it applies. Office of the Architect of the Capitol
v. Cienfuegos, No. 11-AC-138 (CV, RP), 2014 WL 7139940, *n.1
(OOC Board Dec. 11, 2014). The Board's authority is therefore
limited to deciding breaches of confidentiality during the
pendency of a complaint filed pursuant to section 405 of the
CAA, and the Adopted Rules so provide.
Further, as to the deletion of section 1.07(d), covering
contents or records of confidential proceedings, the comments
noted that mediation does not bestow confidentiality to facts
or evidence that exist outside of mediation and the language
needs the significant qualification that currently exists in
section 1.07(d) (``. . . A participant is free to disclose
facts and other information obtained from any source outside
of the confidential proceedings . . .''). The commenter
recommended that the entire language of section 1.07(d) of
the 2004 Procedural Rules be retained in the new Rules.
The Office agrees that including the current section
1.07(d) in the Adopted Rules (now in the Adopted Rules as
section 1.08(e)) would give appropriate guidance on the
contents and records of confidential proceedings.
There were multiple comments concerning the confidentiality
provisions in section 1.08 of the Proposed Rules. One such
comment noted that ``communications between attorneys and
clients should never amount to a confidentiality breach
absent a protective order''; yet, with the deletion of the
``Breach of Confidentiality Provisions'' section, there is no
timeframe listed for when a party can claim a confidentiality
breach. Commenters urged the OOC to reinstitute the previous
requirement. Because of the Board rulings limiting the
authority of the Board to review a breach of confidentiality
claim outside of a section 405 proceeding, there does not
need to be a timeframe for a party to claim the breach. The
claim would have to occur during the section 405 proceeding
itself. Because circumstances would differ in each case,
setting a time frame for a breach of confidentiality should
be left up to the Hearing Officer and the OOC Board of
Directors.
Commenters noted that section 1.08(c) was also inconsistent
because it prohibits disclosure of a written or oral
communication that is prepared for the purpose of, or occurs
during, counseling. The most important document that allows
for the preparation of a defense to a claim is the formal
request for counseling. That written document is necessary to
identify the claims that a Complainant has properly exhausted
under the CAA. Some commenters requested that the Office
provide the employing office with the request for counseling.
Counseling is to be strictly confidential, therefore, the
request itself will not be provided to other parties by the
Office. As the Circuit Court for the District of Columbia
noted in Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d
699, 713 (D.C. Cir. 2009), ``Congress's inclusion of
provisions requiring the Office to issue written notices of
the end of counseling and the end of mediation must be read
in light of the provisions on confidentiality. Those
provisions, sections 1416(a) and (b), provide that counseling
and mediation, respectively, shall be strictly
confidential.'' 2 U.S.C. Sec. 1416(a) & (b). Blackmon-Malloy
v. U.S. Capitol Police Bd., 575 F.3d 699, 711 (D.C. Cir.
2009). The court noted that, ``nothing in the CAA suggests
Congress intended courts to engage in a mini-trial on the
content of the counseling and mediation sessions, an inquiry
that would be fraught with problems. . . . Congress expressly
limited the ability of the court to review the
[[Page S6361]]
substance of compliance with these processes.'' Blackmon-
Malloy v. U.S. Capitol Police Bd., 575 F.3d at 711.
One commenter objected to section 1.08(d) of the Proposed
Rules, noting that mediators should not be able to discuss
substantive matters from mediation with the Office. The
commenter noted that to permit mediators to consult with the
OOC regarding the substance of the mediation violates the
principle that ``[a]ll mediation shall be strictly
confidential,'' 2 U.S.C. Sec. 1416(b), and is inconsistent
with the OOC's role as a neutral. Specifically, the commenter
points out that as the OOC appoints the Hearing Officer to
handle the subsequent complaint, the Executive Director rules
on a number of procedural issues in any subsequent case, and
in view of the OOC's adjudicative role in the complaint
process, allowing the mediator to consult with the OOC
regarding substantive issues related to the mediation may
negatively impact the OOC's neutrality, and/or the perception
of the parties that the OOC is neutral.
The Office agrees with the commenter that under the CAA,
``[a]ll mediation shall be strictly confidential.'' CAA
Sec. 416(b). The confidentiality provision regarding
mediation is further clarified in section 2.04(j) of the
Procedural Rules, which provides that the ``Office will
maintain the independence of the mediation process and the
mediator. 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.''
However, the CAA requires both counseling and mediation, in
part, to assist employees and employing offices in reaching
an early resolution of their disputes. When a neutral
mediator believes that consulting with the Office on
administrative, procedural, or even substantive matters will
expedite and facilitate resolution of the dispute, there is
no reason for the mediator not to be able to do that. In
fact, the purposes of the counseling and mediation provisions
are best served if the OOC encourages the mediator to do
everything he or she can to expedite resolution of the
matter.
Furthermore, because Mediators are barred from serving as
Hearing Officers in the same case under CAA section 403(d),
there is no chance that a Mediator who consults with the
Office will use that information to make a determination that
will be binding upon the parties. Section 403(d) of the CAA
is designed to inspire confidence in and maintain the
integrity of the mediation process by encouraging the parties
to be frank and forthcoming, without fear that such
information may later be used against them. See, e.g., 141
Cong. Rec. S629 (January 9, 1995). In essence, if the parties
know that the mediator will not be involved in investigating
or determining the validity of any of the allegations being
made, they may be more willing to work cooperatively with the
Mediator during the mediation. This is also the theory behind
a key provision of the EEOC's ADR Policy Statement: ``In
order to ensure confidentiality, those who serve as neutrals
for the Commission should be precluded from performing any
investigatory or enforcement function related to charges with
which they may have been involved. The dispute resolution
process must be insulated from the investigative and
compliance process.'' EEOC, Notice No. 915.002 (7/17/95).
Because Mediators under the CAA are insulated from the
investigative and compliance process, there is no statutory
or ethical bar that would prevent them from consulting with
the office if it would facilitate resolution of the dispute.
One comment also noted that the proposed rule sections
1.08(b) and (c) may be read to allow a ``participant'' to
publicize the fact that a covered employee has requested and/
or engaged in counseling and mediation, and the fact that an
individual has filed an OOC complaint. See also, 2.03(d),
2.04(b) and 5.01(h) (requiring the OOC--but not
participants--to keep confidential the ``invocation of
mediation'' and ``the fact that a complaint has been filed
with the [OOC] by a covered employee''). The Commenter notes
that these disclosures would violate the strict
confidentiality mandated by the CAA and that the proposed
rule should not be adopted.
It is the opinion of the Office that the strict
confidentiality mandated by the CAA applies to the
discussions and content of conversations that go on in
counseling, mediation, and the hearing, rather than the fact
of filing of a request for counseling, invocation of
mediation, or a complaint. Indeed, section 1.08(e), added
back into the Adopted Rules, spells out that it is the
information actually obtained in the counseling, mediation or
hearing proceedings that is to be kept confidential, not
necessarily the fact that a hearing or mediation is being
held. Moreover, to ensure confidentiality and consistent with
the Office of Compliance Administrative and Technical
Corrections Act of 2015 (PL 114-6), all participants are
advised of the confidentiality requirement under the CAA.
In another comment, it was noted that the waiver provision
under section 1.08(e) of the Proposed Rules was not clear and
appeared to conflict with the statutory requirement of
confidentiality under section 416 of the CAA. Where there is
a waiver of confidentiality, it is unclear whether a waiver
releases all requirements for confidentiality including
making records public in proceedings, waiving the
confidentiality requirements of proceedings before a Hearing
Officer, and waiving the sanctions requirement under section
1.08(f). It is important that any waiver be clear as to why
it would be permissible despite the language in section 416
of the CAA and how such a waiver affects documents,
proceedings, and testimony. The commenter further notes that
the language of the waiver does not make clear that all
participants must agree to waive confidentiality and should
therefore be deleted from the Rules.
The Office agrees that the waiver language in section
1.08(e) of the Proposed Rules is too confusing and not meant
as a general waiver. Accordingly, the waiver language has
been deleted in the Adopted Rules.
One comment noted that section 1.08(f) of the Proposed
Regulations would remove the requirement that the OOC advise
participants of their confidentiality obligations in a timely
fashion. Section 1.06(b) of the 2004 Procedural Rules
requires the OOC to provide this notification ``[a]t the time
that any individual... becomes a participant,'' and that
language is not included in Proposed Procedural Rule 1.08(f).
Such early notice is critical to ensuring that CAA-mandated
confidentiality is maintained and, thus, the existing rule
should be retained.
The Office of Compliance Administrative and Technical
Corrections Act of 2015 (PL 114-6), requires the Executive
Director to notify each person participating in mediation and
in the hearing and deliberations process of the
confidentiality requirement and of the sanctions applicable
to any person who violates the confidentiality requirement.
The Office has created notifications to be provided to
participants during all phases of the administrative process,
including in mediation and at hearings, and includes a
statement on its request for counseling form advising that
``all counseling shall be strictly confidential.'' Consistent
with this and in agreement with the comment, section 1.08(f)
of the Adopted Rules is modified to provide that, ``[t]he
Executive Director will advise all participants in mediation
and hearing at the time they become participants of the
confidentiality requirements of Section 416 of the Act and
that sanctions may be imposed by the Hearing Officer for a
violation of those requirements. No sanctions may be imposed
except for good cause and the particulars of which must be
stated in the sanction order.''
SUBPART B--PRE-COMPLAINT PROCEDURES APPLICABLE TO
CONSIDERATION OF ALLEGED VIOLATIONS OF PART A OF TITLE II
OF THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995
In reviewing the change in the Proposed Rules, the Office
has decided to delete the reference in section 2.03 of the
2004 Rules to an ``official'' form that should be used to
file a formal request for counseling and has replaced it in
the Adopted Rules with the following language: ``Individuals
wishing to file a formal request for counseling may call the
Office for a form to use for this purpose.''
There were several comments to section 2.03 of the Proposed
Rules. One commenter noted that the strict confidentiality
provision discussed in section 2.03(d) should refer to the
confidentiality provisions described in sections 2.03(e)(l)-
(2) and 1.08. In addition, the commenter maintained that the
words ``should be used'' should be deleted and replaced with
the word ``shall'' so that the counseling period only
pertains to the enumerated items.
The Office has decided to leave the language as proposed
(``should be used'') to provide the most flexibility to the
Counselor and employee depending on the circumstances of each
case.
There were comments that section 2.03(e)(1) of the Proposed
Rules was inconsistent with the requirements in section
1.08(d). The commenter noted that, for example, section
2.03(e)(1) provides that ``all counseling shall be kept
strictly confidential and shall not be subject to
discovery.'' The commenter noted that it is not clear that
the Office of Compliance Procedural Rules can control the
release of discoverable information in federal district
court. Notwithstanding that restriction, section 2.03(e)(1)
is inconsistent with the exceptions provided in section
1.08(d) which permits disclosing information obtained in
confidential proceedings when reasonably necessary to
investigate claims, ensure compliance with the Act or prepare
its prosecution or defense.
Additional comments noted that section 2.03(e)(1) of the
Proposed Rule would permit the OOC to publicize certain
statistical information regarding CAA proceedings, which is
consistent with section 301(h)(3) of the CAA, but the
proposed rule would remove this language: ``. . . so long as
that statistical information does not reveal the identity of
the employees involved or of employing offices that are the
subject of a request for counseling.'' To ensure compliance
with section 416 of the CAA, the rule should specify that the
OOC will not publicize this detailed information in its
statistical reports.
The Office believes that the CAA's confidentiality
requirements found in section 416 of the CAA confer upon it
the obligation to safeguard the confidentiality of such
information. It is for that reason, the language limiting the
discovery of information discussed in counseling was added.
To ensure that its intention to protect the information is
understood, the Office has decided to keep that language in
the A Rules. Further, to preserve confidentiality of
statistical information released as part of the reporting
under section 301(h)(3) of the CAA, language has been put
back in, indicating that statistical information will not
reveal the identity
[[Page S6362]]
of individual employees or employing offices that are the
subject of specific requests for counseling.
In addition, by way of clarification, the Office has added
a reference in section 2.03(e)(2) of the Adopted Rules to
section 416(a) of the CAA indicating that the employee and
the Office may agree to waive confidentiality during the
counseling process for the limited purpose of allowing the
Office to notify the employing office of the allegations.
Noting that section 2.03(m) of the proposed rules requires
the Capitol Police to enter into a Memorandum of
Understanding (MOU) to permit an employee to use the Capitol
Police internal grievance process, one commenter observed
that there was no such requirement in section 401 of the CAA.
As the language in the proposed regulation indicates, a MOU
may be necessary to address certain procedural and
notification requirements. The OOC believes that the best way
to work out notice and follow up details is through a MOU.
However, the language does not mandate a MOU, but rather
indicates that an MOU would be helpful in addressing
administrative and procedural issues that could come up
should the Executive Director decide to recommend that an
employee use an internal process.
There were several comments noting that inclusion of ``good
cause'' language in section 2.04(b) of the Proposed Rules
would allow a covered employee additional time to file a
request for mediation outside of the statutory 15-day period.
The commenter asserted that there is no support for a ``good
cause'' extension in the statute, and thus the OOC lacks
authority to create such an extension in its Proposed
Procedural Rules.
Typically, a final decision as to timeliness is up to the
Hearing Officer and neither the Office nor the Mediator will
dismiss a request for mediation where the request may be
late. The intent of this amendment was to allow the Office to
close the case if a request for mediation was not timely
filed and make the decision not to forward for mediation.
Because the 15-day time limit in which to file a request for
mediation is statutory, the Office has deleted the ``good
cause'' language from the Adopted Rules. However, a case may
be closed if the request for mediation is not filed within 15
days of receipt of a Notice of the End of Counseling. In most
cases, the final decision as to whether a request for
mediation has been timely filed is up to the fact finder. In
any event, a decision on an issue of equitable tolling would
still be up to the Hearing Officer to decide.
In section 2.04(f)(2) of the Proposed Rules, language was
added to the agreement to mediate that read that the
Agreement to Mediate would define what is to be kept
confidential during mediation. Commenters noted that
everything in mediation is confidential and the statute does
not permit the parties, the Mediator, or the OOC to redefine
or limit what aspects of the mediation are confidential and
which are not. This addition in the Proposed Rules was
intended to create a contractual agreement on confidential
matters. There is no question that a person can waive
confidentiality. But the default in this section should be
that matters are confidential unless there is a waiver, not
the other way around. Therefore, this language is being
deleted from the Adopted Rules.
The Office received comments on section 2.04(g) related to
the procedures by some oversight committees for approving
settlements. Commenters requested that the proposed change be
modified to make it clear that Members of the committees need
not be present for mediation, nor must they be reachable by
phone during the mediation. It is understood that in some
cases, an oversight committee has specific procedures for
approving settlements that might not fit exactly into the
parameters established under section 2.04(g). Section 414 of
the Act does provide for this. The Act states: ``Nothing in
this chapter shall affect the power of the Senate and the
House of Representatives, respectively, to establish rules
governing the process by which a settlement may be entered
into by such House or by any employing office of such
House.'' Because this provision is set forth in the Act, it
is not necessary to modify the language in section 2.04(g) of
the Rules.
There were additional comments to proposed Procedural Rule
2.04(g). Commenters noted that the rule as proposed would
grant the Mediator the authority to require ``any party'' to
attend a mediation meeting in person and that there was
nothing in the CAA that would give a Mediator this authority.
As a general rule, Mediators do not ``direct'' individuals to
attend mediation in person, unless the Mediator believes that
a specific person's presence would advance the mediation.
However, the Office has revised the language in the Adopted
Rules to indicate that the Mediator may ``specifically
request'' a party or individual's presence.
One commenter stated that the OOC should not alter
established practice by participating in mediations, as
allowed in Section 2.04(g). In response, the Office notes
that as the 2004 Rules include the Office as a possible
participant in mediation, the Proposed Rules did not change
established practice. However, to ensure that participation
by the Office does not interfere with the mediation process,
the Amended Rules include language that requires the
permission of the Mediator and the parties before the Office
can participate in mediation. This is not meant to require
permission from the parties when the Office appoints an in-
house mediator. Such an appointment is left exclusively to
the Executive Director.
There were several comments to section 2.04(i) of the
Proposed Rules. Commenters noted that the notice of the end
of mediation period should advise the employing office of the
date and mode of transmission of the notice that was sent to
the complainant or add a presumption to the new rule, stating
that the notice is presumed to have been received on the day
it is sent by facsimile or email, or within 5 calendar days
if sent by first class mail.
However, the Technical Amendments Act modified section 404
of the CAA and established that the deadline to elect
proceedings after the end of mediation was `not later than 90
days but not sooner than 30 days after the end of the period
of mediation.' (Emphasis added) As this changed the deadline
from the receipt of the notice of end of mediation to the end
of the mediation period itself, section 2.04(i) of the
Adopted Rules was changed accordingly. Section 205(a),
regarding election of proceedings, was also modified to
reflect the changes made by Technical Amendments Act.
SUBPART C--COMPLIANCE, INVESTIGATION, AND ENFORCEMENT UNDER
SECTION 210 OF THE CAA (ADA PUBLIC SERVICES)--INSPECTIONS
AND COMPLAINTS
In the NPRM published on September 9, 2014, the Executive
Director proposed a new Subpart C of the Procedural Rules
setting forth rules and procedures for the inspection,
investigation and complaint provisions contained in sections
210(d) and (f) of the CAA relating to Public Services and
Accommodations under Titles II and III of the Americans with
Disabilities Act (ADA). On September 9, 2014, the OOC Board
also published a NPRM with substantive regulations
implementing Section 210 of the CAA, including sections
210(d) and (f). In response to the NPRMs, the Executive
Director received comments to both the proposed ADA
procedural rules and the proposed substantive regulations
that were similar or substantially related. While the ADA
substantive regulations have been adopted by the Board of
Directors, they have not yet been approved by Congress. The
Executive Director has therefore decided to withdraw the
proposed procedural rules contained in Subpart C relating to
section 210 of the CAA. Any future procedural rules regarding
the inspection, investigation and complaint provisions
contained in sections 210(d) and (f) of the CAA relating to
ADA Public Services and Accommodations will be promulgated
when the substantive regulations implementing section 210 of
the CAA have been approved.
SUBPART D--COMPLIANCE, INVESTIGATION, ENFORCEMENT AND
VARIANCE PROCESS UNDER SECTION 215 OF THE CAA
(OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970)--
INSPECTIONS, CITATIONS, AND COMPLAINTS
Regarding sections 4.02(a), 4.03(a) and (b), two commenters
objected to defining ``place of employment'' as ``any place
where covered employees work.'' The 2004 Rules referred to
``places of employment under the jurisdiction of employing
offices.'' The language in the 2004 Procedural Rules is the
same language used in section 215(c)(1) of the CAA. Section
215(c)(1) describes the authorities of the General Counsel,
which are the same as those granted to the Secretary of Labor
by subsections (a), (d), (e), and (f) of section 8 of the
Occupational Safety and Health Act of 1970 (OSHAct) (29
U.S.C. Sec. Sec. 657(a), (d), (e), and (f)). Notably, section
8(a) grants the ``right to enter without delay and at
reasonable times any factory, plant, establishment,
construction site, or other area, workplace or environment
where work is performed by an employee of an employer.''
(Emphasis added). The CAA refers to the same authorities for
periodic inspections as it does for requests for inspections,
that is, section 215(c)(1), and therefore section 8(a) of the
OSHAct. Thus, the General Counsel's authority for periodic
inspections and requests for inspections covers not only
legislative branch facilities that are under the jurisdiction
of employing offices, such as the Hart or Rayburn office
buildings, but any place where covered employees work, such
as the Architect of the Capitol's workshop in the U.S.
Supreme Court building. One commenter expressed concern this
would mean the General Counsel could visit a telework
employee's home office to conduct an inspection, since the
home office is where a covered employee works, but not where
an employing office has ``jurisdiction''. However, the
General Counsel would not inspect an area and make findings
that are beyond the reach of any employing office to address.
The efforts in this section of the Procedural Rules are
intended to more accurately reflect, rather than broaden, its
authority to inspect.
One commenter objected to language in section 4.02(a) that
authorizes the General Counsel to review records ``maintained
by or under the control of the covered entity.'' The 2004
Rules refers to records ``required by the CAA and regulations
promulgated thereunder, and other records which are directly
related to the purpose of the inspection.'' The concern is
that the General Counsel is imposing record-keeping
requirements. However, the language does not require entities
to create records or even to maintain records, but addresses
the authority of the General Counsel to review records that
are maintained. Further, whether a record is ``directly
related to the purpose of the inspection'' is a matter that
may be raised by
[[Page S6363]]
an entity whether that language is in the section or not. The
General Counsel is not seeking the right to review records
that have nothing to do with the inspection. Moreover,
whether a record is ``directly'' related is not always
readily apparent when a record request is first made, and the
better course is to avoid misunderstandings and delays in
inspections because of a debate over degrees of relatedness.
One commenter suggested inserting the words ``upon
notification to the appropriate employing office(s)'' in
section 4.02(a) after, ``the General Counsel is authorized''
and before, ``to enter without delay and at reasonable times,
. . .''. As noted above, that language is from section 8(a)
of the OSHAct. There is no requirement to provide advance
notice of an inspection to employing offices but in practice
the approach of the General Counsel is to provide
notification well in advance. The employing offices usually
provide an escort for access and assistance during the
inspection. The General Counsel has even rescheduled an
inspection when no escort shows. The General Counsel's
periodic inspection calendars are provided to employing
offices at the beginning of each Congress and posted on the
OOC's website.
The same commenter asked the Executive Director to revise
section 4.03(a)(1) to reflect the General Counsel's practice
of providing advance notice of an inspection and the
scheduling of a pre-inspection opening conference. The
current language requires that the General Counsel provide a
copy of the notice of violation to the employing office ``no
later than at the time of inspection.'' The commenter also
asked the Executive Director to revise section 4.06(a), which
states that advance notice of inspections may not be given
except under the situations listed in (a)(1) through (4). The
Executive Director agrees that the practice of the General
Counsel has defaulted to giving advance notice, as opposed to
not giving advance notice. However, flexibility is still
needed to inspect without advance notice, usually for exigent
circumstances. In such situations, and under the 2004
Procedural Rules, the General Counsel need not first persuade
an employing office that the matter falls under an exception
to advance notice.
The commenter also suggested that the Executive Director
revise section 4.11 on Citations to reflect other processes
used by OOC, such as the Serious Deficiency Notice and case
reports, adding that the General Counsel rarely issues
citations and does not issue de minimis violations. The
commenter asked that the Executive Director change section
4.12 on Imminent Danger to include OOC's use of the Serious
Deficiency Notice; change section 4.14 to require the General
Counsel to notify the employing office that it failed to
correct a violation before the General Counsel files a
complaint, rather than having the notification be optional;
and change section 4.25 on applications for temporary
variances and other relief to include the Request for
Modification of Abatement process used by the General
Counsel.
The suggested changes regarding notification of
inspections, citations, imminent danger, notification before
filing a complaint, and applications for temporary variances/
requests for modification of abatement, were raised by the
commenter, not in response to any changes the Executive
Director proposed in the NPRM. The Executive Director is
therefore reluctant to discuss them without further notice
and opportunity to comment for all stakeholders. While the
processes of the General Counsel that have developed since
2004 in these areas are not wholly reflected in the
Procedural Rules, they are not inconsistent with the Rules or
with the authorities granted to the General Counsel under the
CAA. They are examples of how the operational needs of the
parties and OOC can be accommodated without first revising
the Procedural Rules.
One commenter was supportive of OOC's effort to balance the
OSHAct, which requires citations to be posted unedited and
un-redacted, with concern over the disclosure of security
information. More specifically, the Executive Director had
added the following language to section 4.13(a) on the
posting of citations: ``When a citation contains security
information as defined in Title 2 of the U.S. Code, section
1979, the General Counsel may edit or redact the security
information from the copy of the citation used for posting or
may provide to the employing office a notice for posting that
describes the alleged violation without referencing the
security information.'' However, the commenter wanted the
Executive Director to go further and include other security
information, such as ``sensitive but unclassified''
information, and to address how OOC will protect all security
information it encounters during all stages of the OSH
inspection process. The Executive Director does not believe
the Procedural Rules are the place for setting forth OOC's
safeguards and internal handling procedures for security
information. The reference to 2 U.S.C. Sec. 1979 was an
effort to use an established definition of security
information that applies to the Legislative Branch, rather
than leaving it to the OOC to decide what is security
information. A document marked as classified or sensitive but
unclassified by the classifying or originating entity will be
handled accordingly.
SUBPART E--COMPLAINTS
Commenters suggested deleting newly proposed language in
section 5.01(b)(1) that would permit the Executive Director
to return a complaint that was filed prematurely, without
prejudice. The commenters asserted that the provision is
unfair to employing offices and places the Executive Director
in the position of giving legal advice to complainants.
The Office disagrees that allowing a complainant to cure a
defect in their filing is improper, and has added language
giving the Executive Director discretion to return all early
filed Complaints to the complaining employee for filing
within the prescribed period, and with an explanation of the
applicable time limits. It is clear that no complaint will be
processed until it is timely. Giving the Executive Director
the discretion to return a complaint in these circumstances
does not give the Executive Director the authority to process
a complaint that is filed prematurely.
In comments to section 5.01(g) of the proposed regulations,
commenters suggested that a respondent be permitted to file a
motion to dismiss in lieu of an answer. They explained that
the rule should give the Hearing Officer discretion to allow
a respondent to file a motion to dismiss in lieu of an
answer. Otherwise, a party will be forced to waste resources
responding to a complaint that may be dismissed or
significantly altered by a Hearing Officer's ruling on the
motion to dismiss. They conclude that filing a motion to
dismiss should suspend the obligation to file an answer.
The Office declines to make this change in the Adopted
Rules, believing that a direct response to the allegations is
vital, and any party wishing to file a motion to dismiss in
addition to an answer may do so. While a motion to dismiss
option was added to the Proposed Procedural Rules because
many stakeholders indicated that they would like to see it
added, this language was not intended to replace the filing
of an answer. When there is no adverse action like a removal
or suspension, and the claim involves harassment or
retaliation, the employing office has no requirement to
provide the complainant with the administrative file or
investigation, and there is no requirement under the Rules
that the agency provide this information before the time to
answer. In those circumstances, the complainant must rely on
the answer for information in order to respond. While it is
in the Hearing Officer's discretion whether to extend the
time to allow the respondent to file an answer and to stay
discovery while ruling on a motion to dismiss, the Office has
decided to keep language requiring an answer. In hearings
under the CAA, the time frames are typically very short and a
requirement for respondent to answer keeps the process moving
forward.
Sections 5.03(f) and (g) of the Proposed Rules were
modified to allow a Hearing Officer to dismiss a complaint
after withdrawal--with or without prejudice. Several
commenters objected to this change. One commenter suggested
such a dismissal be with prejudice only, another suggested
the Board identify factors a Hearing Officer must consider
when dismissing a complaint or permitting a complainant to
re-file, and another suggested the language be modified to
clarify that a Hearing Officer cannot expand a complainant's
time to file a complaint--and that a complaint that would
otherwise be time-barred under section 404 may not be re-
filed.
While it is clear that a withdrawal of a complaint with or
without prejudice cannot be used to extend the statutory time
frame, the Executive Director has added language to the
Adopted Rules indicating that the authority of the Hearing
Officer is consistent with section 404 of the CAA.
Section 5.03(h) was added in the Proposed Rules requiring a
representative to provide sufficient notice to the Hearing
Officer and the parties of his or her withdrawal in a matter,
and clarifying that the employee will be considered pro se
until another representative has been designated in writing.
Commenters suggested that the Board define what is meant by
``sufficient'' notice.
The Office recognizes that with respect to the conduct of a
hearing, the Hearing Officer is in the best position to
determine what constitutes sufficient notice under the
circumstances, and so must have flexibility in making
determinations. Therefore, the Executive Director declines to
make the changes as requested.
SUBPART F--DISCOVERY AND SUBPOENAS
In general, several commenters asserted that Proposed
Procedural Rules sections 2.03(e)(l), 6.01(a), and 6.02(a)
are invalid to the extent that they would limit the
availability of OOC employees and records in the discovery
process, because there is no statutory basis for this
evidentiary privilege.
The Executive Director believes that the CAA's
confidentiality requirements found in section 416 of the CAA
confer upon the Office the obligation to safeguard the
confidentiality of such information. Accordingly, to ensure
that its intention to safeguard confidential information is
clear, the Executive Director declines to make any changes in
the A Rules to these sections.
In the Proposed Rules section 6.01(b) language about
initial disclosure was modified to specify that information,
including witness lists and discovery documents, must be
provided to the opposing party within 14 days of a pre-
hearing conference. A commenter suggested that this rule
places an unfair burden on employing offices who should not
be required to turn over witness lists and discovery
documents without a request.
The Office believes that, given the limited time between
the filing of a complaint and
[[Page S6364]]
opening of the hearing, this requirement should be kept as
proposed because it will promote the prompt and fair exchange
of information and reduce delay in the proceedings. This
process should not pose an unfair burden on employing offices
because of the ready availability of the information to the
employing office.
One commenter expressed concern that the changes proposed
to section 6.01(c), permit the parties to engage in
``reasonable prehearing discovery,'' without defining what
types of discovery are reasonable, or the volume of discovery
that is appropriate, given the limited time involved in the
process. The language in the 2004 Procedural Rules,
permitting discovery only as authorized by the Hearing
Officer was more equitable because the Hearing Officer had
greater control over the proceedings, and better ability to
prevent discovery abuses, or the use of delay tactics.
Additionally, application of the Federal Rules of Civil
Procedure to the types and volume of discovery may be helpful
to the parties' understanding of the process.
This comment misapprehends the Hearing Officer's authority.
Section 405(e) of the CAA provides that ``[r]easonable
prehearing discovery may be permitted at the discretion of
the hearing officer.'' The authority is therefore permissive,
not restrictive. It has always been the policy of the Office
to encourage early and voluntary exchange of relevant
information and the Rules, as amended, allow a hearing
officer to authorize discovery, but do not mandate it.
One commenter suggested that section 6.01(c)(1) be modified
to state that, when a motion to dismiss is filed, discovery
is stayed until the Hearing Officer has ruled on the motion.
The Executive Director declines to make this modification.
As noted above, because the time frames in the hearing
process are limited, requiring that discovery be stayed until
there is a ruling on a motion to dismiss could take up
valuable time. In any event, the Hearing Officer should have
the most flexibility to make a decision to stay discovery
depending on the circumstances of each case.
Section 6.01(d)(1) of the Proposed Rules provides: ``A
party must make a claim for privilege no later than the due
date for the production of the information.'' One commenter
suggested that a claim for privilege belongs to a party and
cannot be waived except by the party. Thus, section
6.01(d)(1) cannot place a limitation on a party's right to
assert a privilege and would be inconsistent with the
inadvertent disclosure identified in section 6.01(d)(2). As
an example, the commenter notes that one may have
inadvertently disclosed privileged information on the last
day of discovery which would require that it be returned or
destroyed in accordance with section 6.01(d)(2). However, if
the privilege was not asserted on the last day of discovery,
the Procedural Rules would allow the opposing party to keep
the inadvertently disclosed documents. Thus, by limiting the
timing of the asserted privilege, a conflict is created
between sections 6.01(d)(1) and 6.01(d)(2).
The Office is not attempting, by this rule, to place a
limit on a party's right to assert a privilege, but rather to
ensure that if a party intends to assert a privilege it does
so in a timely way. Until a privilege is asserted, the
assumption is that the information is not privileged.
Therefore, this rule is not inconsistent with section
6.01(d)(2) that requires that information that has been
claimed as privileged and inadvertently disclosed be returned
or destroyed, even if disclosed on the last day of discovery.
Section 6.02(a) was modified in the Proposed Rules to
clarify that OOC employees and service providers acting in
their official capacities, and confidential case-related
documents maintained by the OOC, cannot be subpoenaed. In
addition, the rules clarify that employing offices must make
their employees available for discovery and hearings without
a subpoena. One commenter requested that an employing office
only be required to make available witnesses under their
control during actual work hours and work shifts on the day
of the hearing and, otherwise, that subpoenas be used.
Another commenter suggested the provision be revised to
state: ``Employing offices shall make reasonable efforts to
make their management-level employees available for discovery
and hearing without requiring a subpoena.''
Often, the timing and pacing of a hearing depends on the
availability of witnesses. The Executive Director believes
that it is important that the parties willingly commit to the
hearing process to ensure the most efficient and equitable
outcome possible. By requiring employing offices to make
their employees available without a subpoena, the purpose of
the Proposed Rule was to ensure that employees will be
readily available when called as witnesses, therefore
reducing the administrative burdens on the parties, the
Hearing Officer, and the Office.
SUBPART G--HEARINGS
As a general comment, one commenter stated that it was
unclear what authority under the CAA the Board of Directors
was utilizing to authorize a Hearing Officer to issue
sanctions under sections 7.02 and 7.12(b). The commenter
maintained that sanctions are not authorized under the CAA
and, thus, Procedural Rules incorporating substantive
provisions are beyond the scope of authority permitted under
the CAA. The commenter further suggested that because
sanctions provisions affect the rights of the parties, they
are substantive in nature and the appropriate avenue should a
substantive sanctions provision be requested is to pursue a
statutory amendment to the CAA.
The Executive Director disagrees. It is clear that a
Hearing Officer has the ability to use sanctions to run an
orderly and proper hearing. Moreover, the CAA provides this
authority. Thus, under section 405(d) of the CAA, the Hearing
Officer is required to conduct the hearing in ``accordance
with the principles and procedures set forth in section 554
through 557 of title 5.'' Specifically, under 5 U.S.C.557:
``The record shall show the ruling on each finding,
conclusion, or exception presented. All decisions, including
initial, recommended, and tentative decisions, are a part of
the record and shall include a statement of . . . the
appropriate rule, order, sanction, relief, or denial
thereof.'' Further, under section 405(g) of the CAA, ``the
hearing officer shall issue a written decision [that] shall .
. . contain a determination of whether a violation has
occurred and order such remedies as are appropriate pursuant
to subchapter II of this chapter.''
Another comment in this area pointed to section
7.02(b)(1)(G) of the 2004 Rules that authorizes a Hearing
Officer to ``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,
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.''
The Office notes that because section 415 of the CAA
requires that only funds appropriated to an account of the
Office in the Treasury may be used for the payment of awards
and settlements under the CAA, this provision has been
deleted from the Adopted Rules.
Section 7.02(b)(4) of the Proposed Rules permits a Hearing
Officer to dismiss a frivolous claim. One commenter suggested
that this rule be modified to make it clear that, when a
respondent has moved to dismiss a claim on the grounds that
it is frivolous, no answer should be required to be filed and
no discovery taken ``unless and until the motion is denied.''
Another commenter suggested that allegations that a claim is
frivolous be resolved through a motion to dismiss, referenced
in section 5.01(g).
As stated previously, the Executive Director is declining
to delete the requirement that an answer be filed in all
complaint proceedings. Moreover, the Office recognizes that a
claim alleging that a matter is frivolous may always be
subject to a motion to dismiss and the Hearing Officer has
the discretion to move the case as appropriate. Therefore,
qualifying language need not be included in these rules. In
order to clarify one point, the Office has added language
indicating that a Hearing Officer may dismiss a claim, sua
sponte, for the filing of a frivolous claim.
Some commenters noted that the CAA did not authorize each
of the remedies for failure to maintain confidentiality under
section 7.02(b)(5). While the Hearing Officer is authorized
to issue a decision under section 405, the commenters note
that Congress did not authorize remedies for breach of
confidentiality. Accordingly, the Board of Directors of the
Office of Compliance is required to seek a statutory
correction should it desire to provide remedies for breach of
confidentiality. Where Congress sought to provide a remedy
under the CAA, it specifically incorporated it. Compare 2
U.S.C. 1313(b), 2 U.S.C. 1314(b), 2 U.S.C. 1317(b), and 2
U.S.C. 1331(c) incorporating a remedy provision with the
absence of a remedy provision in 2 U.S.C. 1416.
For the reasons below, the Office declines to delete this
section. The CAA does provide for sanctions and remedies for
the failure to maintain confidentiality. Under the Office of
Compliance Administrative and Technical Corrections Act of
2015, section 2 U.S.C. 1416(c) of the CAA was amended to:
``The Executive Director shall notify each person
participating in a proceeding or deliberation to which this
subsection applies of the requirements of this subsection and
of the sanctions applicable to any person who violates the
requirements of this subsection.'' (Emphasis added.)
Section 7.07 gives the Hearing Officer discretion when a
party fails to appear for hearing. One commenter suggested
that the rule be amended to require the complainant to appear
at hearings.
The rule, as written, is intended to allow the Hearing
Officer discretion to determine when the presence of a party
is required for the proceeding to move forward.
With respect to sections 7.13(d) and (e), one commenter
noted that these sections ``purport to limit the availability
of interlocutory appeals'', and section 8.01(e) purports to
limit the availability of judicial review. Because these
issues should be addressed by substantive rulemaking, these
proposed Procedural Rules are invalid and should not be
adopted.
These provisions are not substantive, but are procedural.
Therefore no changes need to be made. Thus, under the
Proposed Rules, the time within which to file an
interlocutory appeal is described in section 7.13(b); section
7.13(c) provides the standards upon which a Hearing Officer
determines whether to forward a request for interlocutory
review to the Board; and section 7.13(d) provides that the
decision of the Hearing Officer to
[[Page S6365]]
forward or decline to forward a request for review is not
appealable. The Office's rule permitting the Hearing Officer
to determine whether a question should be forwarded to the
Board is consistent with judicial practice, and the Board
retains discretion whether or not to entertain the appeal.
Under 28 USC 1292(b):
When a district judge, in making in a civil action an order
not otherwise appealable under this section,\1\ shall be of
the opinion that such order involves a controlling question
of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order: Provided,
however, that application for an appeal hereunder shall not
stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so
order.
\1\ Orders other than ``[i]nterlocutory orders . . .
granting, continuing, modifying, refusing or dissolving
injunctions, or refusing to dissolve or modify injunctions. .
. .''
There were several comments on section 7.15(a) of the
Proposed Regulations regarding the closing of the record of
the hearing. One commenter noted that the OOC should identify
what factors or guidance a Hearing Officer must follow in
determining the amount of time that the record is to remain
open. Another commenter objected to allowing any documents to
be entered into the record after the close of a hearing.
A complete record is essential to a determination by the
Hearing Officer. The Hearing Officer is in the best position
to determine how long the record should be kept open and what
information is most relevant to creating a complete record
upon which to issue a decision. Because the Hearing Officer
should be accorded appropriate discretion, the Executive
Director sees no reason to make the changes noted.
There were several comments to section 7.16 concerning
sufficient time to respond to motions. One commenter
recommended that a provision be added to the Rules stating
that a Hearing Officer shall provide a party at least two
business days to respond to a written motion. Another
commenter recommended that a rule be adopted that expressly
permits the hearing to be opened just for purposes of arguing
a dispositive motion, such as a motion to dismiss, thereby
allowing the parties to avoid spending time and resources
when a case can be dismissed because it is frivolous or
because it fails to state a claim.
The Executive Director does not believe that any revisions
are required to this section. As the time frames under the
CAA for the issuance of the decision of a Hearing Officer are
very short (a decision must be issued within 90 days of the
end of the hearing), it is crucial that the Hearing Officer
be accorded the most discretion in conducting the hearing.
One commenter suggested that the Rules include directions
to Hearing Officers to sua sponte dismiss abated cases. The
commenter maintained that when a Member of the House of
Representatives leaves office, the Member's personal office
ceases to exist and the case abates. Citing Hamilton-Hayyim
v. Office of Congressman Jackson, Case No. 12-C-6392, 2014 WL
1227243 (N.D. 111. Mar. 25, 2014); accord Oklahoma Natural
Gas Co. v. Oklahoma, 273 U.S. 257, 259-260 (1927); Bowles v.
Wilke, 175 F.2d 35. 38-39 (7th Cir. 1949), the commenter
noted that the CAA ``demonstrates a congressional mandate . .
. to end any employment action liability of that respective
Member's personal office'' at the time the Member leaves
office. Hamilton-Hayyim, 2014 WL 1227243 at *2.10 When a
Hearing Officer becomes aware that a Member's personal office
ceases to exist, the Rules should provide that the Hearing
Officer will dismiss the case, sua sponte.
For the reasons stated herein, the Office disagrees with
this interpretation and the Executive Director declines to
provide such a rule, leaving it to the Hearing Officer or
Board to make the determination on the issue. An ``employing
office'' does not cease to exist when a Member resigns or
otherwise leaves office. The clear intent of the CAA is to
subject the Legislative Branch to liability for violation of
federal employment laws, not to subject Members personally to
such liability. 2 U.S.C. Sec. 1302. Moreover, a Member is not
directly involved in the litigation, as Congress's attorneys
defend the action and have the ultimate authority to make
litigation decisions. Id. Sec. 1408(d). Additionally, there
is no financial risk to a Member, as any monetary settlement
or award is paid from a statutory fund. Id. Sec. 1415(a).
Courts considering this issue have reached this same
conclusion. In Hanson v. Office of Senator Mark Dayton, 535
F. Supp. 2d 25 (D.D.C. 2008), the court found no ambiguity as
to the meaning of the term ``employing office'' and opined
that although the CAA defines ``employing office'' as the
personal office of a Member, there is absolutely no
indication in the CAA or elsewhere that Congress intended the
naming device to insulate former Congressional offices from
suit under the CAA. The court therefore expressly held that
the expiration of a Senator's term did not moot or abate the
lawsuit. Indeed, the term ``employing office'' is merely ``an
organizational division within Congress, established for
Congress's administrative convenience, analogous to a
department within a large corporation'' and the term exists
solely ``to be named as a defendant in [CAA] actions.''
Fields v. Office of Eddie Bernice Johnson, 459 F. 3d 1, 27-29
(D.C. Cir. 2006); see Bastien v. Office of Senator Ben
Nighthorse Campbell, No. 01-cv-799, 2005 WL 3334359, at *4,
(D. Colo. Dec. 5, 2005) (``[T]he term `employing office'
actually refers to Congress and Congress is the responsible
entity under the CAA.''), quoted in 454 F.3d 1072, 1073 (10th
Cir. 2006).
To the extent that the commenter disagrees with the above
explanation and relies on Hamilton-Hayyim v. Office of
Congressman Jesse Jackson, Jr., No. 12-c-6392, 2014 WL
1227243 (N.D. Ill. Mar. 25, 2014), it is the belief of the
Office that the case misapplied clearly established law as
described above and should not affect the Procedural Rules.
Hamilton-Hayyim conflates the issue of successor or
continuing liability under Rule 25(d) of the Federal Rules of
Civil Procedure with the role of an ``employing office'' in a
suit under the CAA. As grounds for its holding, the court in
Hamilton-Hayyim found that a suit against an employing office
becomes moot or abates upon the resignation of a Member
because Congress did not statutorily create successor
liability which infers that ``Congress certainly does not
want to burden a new Member with the liability of a former
Member.'' Id. at *2. This rationale does not comport with the
CAA. There is no burden on a new Member resulting from an
existing action against a former Member under the CAA because
the obligation to provide a legal defense rests with the
Office of House Employment Counsel and any resulting
financial responsibility is paid through a fund. 2 U.S.C.
Sec. 1408, 1415(a). The Executive Director believes that the
holding in Hamilton-Hayyim is contrary to the clear intent of
the CAA which is to hold Legislative Branch employing
offices, not Members, accountable for violations of specific
labor and employment laws. Because an employing office does
not cease to exist for purposes of suit under the CAA when a
Member leaves office, the Executive Director declines to make
the change suggested.
SUBPART I--OTHER MATTERS OF GENERAL APPLICABILITY
One commenter stated that section 9.01(a) is unclear as to
what is meant by a ``decision of the Office.'' If the
procedural rule is meant to be a decision of the Board of
Directors of the Office of Compliance, the rule should be
clarified. The definition of a final decision of the Office
can be found in sections 405(g) \2\ and 406(e) \3\ of the
CAA. Therefore no further revisions are necessary.
---------------------------------------------------------------------------
\2\ Section 405 Complaint and Hearing, (g) Decision. ``. . .
If a decision is not appealed under section 1406 of this
title to the Board, the decision shall be considered the
final decision of the Office.''
\3\ Section 406 Appeal to the Board, (e) Decision. ``. . . A
decision that does not require further proceedings before a
hearing officer shall be entered in the records of the Office
as a final decision.''
---------------------------------------------------------------------------
There were comments to section 9.02(c)(2) of the Proposed
Rules asking for clarification of the circumstances under
which the Office or a Hearing Officer would initiate
settlement discussions once the mediation period has ended.
The Office sees no reason to change the language. As there
are many situations that can come up in hearing where a
Hearing Officer may conclude that the parties are interested
in discussing settlement, the decision as to whether to
initiate settlement discussions should be left up to the
Office or Hearing Officer as circumstances dictate.
One commenter noted that Proposed Procedural Rule
Sec. 9.03(d) would give the Executive Director sole authority
to resolve alleged violations of settlement agreements, in
the event that the parties do not agree on a method for
resolving disputes. There is nothing in the CAA that gives
the Executive Director the authority to resolve contractual
disputes, and this rule should not be adopted.
The Office notes that the rule specifically states that the
Office may provide assistance in resolving the dispute,
including the services of a mediator and that allegations of
a breach of a settlement will be reviewed, investigated, or
mediated as appropriate. It does not say that the Executive
Director will resolve those alleged violations, but rather,
assist the parties in doing so.
One commenter noted that proposed Procedural Rule Sec. 9.04
states that, after a settlement agreement has been approved
by the Executive Director, ``[n]o payment shall be made from
such account until the time for appeal of a decision has
expired.'' This rule should clarify that it does not apply to
settlements reached in the absence of a ``decision'' that may
be appealed.
The Office has clarified section 9.04 in the Amended Rules
and included language that indicates that this rule does not
apply to situations where a settlement has been reached and
there is no decision that could be appealed.
explanation regarding the text of the proposed amendments:
Material from the 2004 version of the Rules is printed in
roman type. The text of the adopted amendments shows
[deletions in italicized type within bold italics brackets]
and added text in underlined bold. Only subsections of the
Rules that include adopted amendments are reproduced in this
NOTICE. The insertion of a series of small dots (. . . . .)
indicates additional, un-amended text within a
[[Page S6366]]
section has not been reproduced in this document. The
insertion of a series of asterisks (* * * * *) indicates that
the un-amended text of entire sections of the Rules have not
been reproduced in this document. For the text of other
portions of the Rules which are not proposed to be amended,
please access the Office of Compliance web site at
www.compliance.gov.
ADOPTED AMENDMENTS
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 Filing,
Service, and Size Limitations of Motions, Briefs,
Responses and Other Documents
Sec. 1.05 Designation of Representative Signing of
Pleadings, Motions and Other Filings; Violation of Rules;
Sanctions
Sec. 1.06 Maintenance of Confidentiality Availability of
Official Information
Sec. 1.07 Breach of Confidentiality Provisions Designation
of Representative
Sec. 1.08 Confidentiality
Sec. 1.01 Scope and Policy.
These rules of the Office of Compliance govern the
procedures for consideration and resolution of alleged
violations of the laws made applicable under Parts A, B, C,
and D of title II of the Congressional Accountability Act of
1995. The rules include definitions, 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 under Part A
of title II. The rules also address the procedures for
compliance, investigation, and enforcement under Part B of
title II, variances and for compliance, investigation,
and enforcement, and variance under Part C of title II. The
rules include and 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:
* * * * *
(b) Covered Employee. The term ``covered employee'' means
any employee of
* * * * *
(3) the Capitol Guide Service Office of Congressional
Accessibility Services;
(4) the Capitol Police;
* * * * *
(9) for the purposes stated in paragraph (q) of this
section, the General Accounting Government Accountability
Office or the Library of Congress.
* * * * *
(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, or 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)] (2) 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 (1) and (3) through (9)
of paragraph (b) above.
(h) Employing Office. The term ``employing office'' means:
* * * * *
(4) the [Capitol Guide Service] Office of Congressional
Accessibility Services, the Capitol Police, the Congressional
Budget Office, the Office of the Architect of the Capitol,
the Office of the Attending Physician, and the Office of
Compliance; or
(5) for the purposes stated in paragraph [(q)] (r) of this
section, the [General Accounting] Government Accountability
Office and the Library of Congress
* * * * *
(j) Designated Representative. The term ``designated
representative'' means an individual, firm, or other entity
designated in writing by a party to represent the interests
of that party in a matter filed with the Office.
* * * * *
--Re-letter subsequent paragraphs--
[(o)](p) General Counsel. The term ``General Counsel''
means the General Counsel of the Office of Compliance and any
authorized representative or designee of the General Counsel.
[(p)](q) Hearing Officer. The term ``Hearing Officer''
means any individual [designated] appointed by the Executive
Director to preside over a hearing conducted on matters
within the Office's jurisdiction.
[(q)](r) Coverage of the [General Accounting] Government
Accountability Office and the Library of Congress and their
Employees. The term ``employing office'' shall include the
[General Accounting] Government Accountability Office and the
Library of Congress, and the term ``covered employee'' shall
include employees of the [General Accounting] Government
Accountability Office and the Library of Congress, for
purposes of the proceedings and rulemakings described in
subparagraphs (1) and (2):
* * * * *
Sec. 1.03 Filing and Computation of Time
(a) Method of Filing. Documents may be filed in person,
electronically, by facsimile (FAX), or by mail, including
express, overnight and other expedited delivery. [When
specifically requested by the Executive Director, or by a
Hearing Officer in the case of a matter pending before the
Hearing Officer, or by the Board of Directors in the case of
an appeal to the Board, any document may also be filed by
electronic transmittal in a designated format, with receipt
confirmed by electronic transmittal in the same format.
Requests for counseling under section 2.03, requests for
mediation under section 2.04 and complaints under section
5.01 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. The Board, Hearing Officer, the Executive Director, or
the General Counsel may, in their discretion, determine the
method by which documents may be filed in a particular
proceeding, including ordering one or more parties to use
mail, FAX, electronic filing, or personal delivery. Parties
and their representatives are responsible for ensuring that
the Office always has their current postal mailing and e-mail
addresses and FAX numbers.
* * * * *
(2) Mailing By Mail.
[(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.] [(ii)
A document,] Documents, [other than a request for mediation,
or a complaint, is] are deemed filed on the date of [its]
their 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 filed 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) By FAX [Faxing Documents.] Documents transmitted by FAX
machine will be deemed filed on the date received at the
Office at 202-426-1913, or[, in the case of any document to
be filed or submitted to the General Counsel,] on the date
received at the Office of the General Counsel at 202-426-1663
if received by 5:00 PM Eastern Time. Faxed documents received
after 5:00 PM Eastern Time will be deemed filed the following
business day. A FAX filing will be timely only if the
document is received 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.] The time displayed
as received by the Office on its FAX status report will be
used to show the time that the document was filed. When the
Office serves a document by FAX, the time displayed as sent
by the Office on its FAX status report will be used to show
the time that the document was served. A FAX filing cannot
exceed 75 pages, inclusive of table of contents, table of
authorities, and attachments. Attachments exceeding 75 pages
must be submitted to the Office in person or by electronic
delivery. The date of filing will be determined by the date
the brief, motion, response, or supporting memorandum is
received in the Office, rather than the date the attachments,
were received in the Office.
(4) By Electronic Mail. Documents transmitted
electronically will be deemed filed on the date received at
the Office at [email protected], or on the date
received at the Office of the General Counsel at
[email protected] if received by 5:00 PM Eastern Time.
Documents received electronically after 5:00 PM Eastern Time
will be deemed filed the following business day. An
electronic filing will be timely only if the document is
received no later than 5:00 PM Eastern Time on the last day
of the applicable filing period. Any party filing a document
electronically bears the responsibility for ensuring both
that the document is timely and accurately transmitted and
for confirming that the Office has received the document. The
time displayed as received or sent by the Office will be
based on the document's timestamp information and used to
show the time that the document was filed or served.
(b) Service by the Office. At its discretion, the Office
may serve documents by mail, FAX, electronic transmission, or
personal or commercial delivery.
[(b)](c) 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, and other full
days that the Office
[[Page S6367]]
is officially closed for business 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, or a day
the Office is officially closed, the last day for taking the
action shall be the next regular federal government workday.
[(c)](d) Time Allowances for Mailing, Fax, or Electronic
Delivery 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. When documents are served electronically or
by FAX, the prescribed period shall be calculated from the
date of transmission by the Office.
[(d) Service or filing of documents by certified mail,
return receipt requested. Whenever these rules permit or
require service or filing of documents by certified mail,
return receipt requested, such documents may also be served
or filed by express mail or other forms of expedited delivery
in which proof of date of receipt by the addressee is
provided.]
[Sec. 9.01] Sec. 1.04 Filing, Service, and Size Limitations
of Motions, Briefs, Responses and Other Documents.
(a) Filing with the Office; Number and Format. One copy of
requests for counseling and mediation, requests for
inspection under OSH, unfair labor practice charges, charges
under titles II and III of the ADA, [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 or a party to any other matter
or determination reviewable by the Board files an appeal or
other submission with the Board, one original and seven
copies of any submission and any responses must be filed with
the Office. The Office, Hearing Officer, or Board may also
request a]A party [to submit] may file an electronic version
of any submission in a [designated] format designated by the
Executive Director, General Counsel, Hearing Officer, or
Board, with receipt confirmed by electronic transmittal in
the same format.
(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. Service shall be made by
mailing, by fax or e-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 must be accompanied by a certificate of service
specifying how, when and on whom service was made. It shall
be the duty of each party to notify the Office and all other
parties in writing of any changes in the names or addresses
on the service list.
* * * * *
(d) Size Limitations. Except as otherwise specified [by the
Hearing Officer, or these rules,] no brief, motion, response,
or supporting memorandum filed with the Office shall exceed
35 double-spaced pages, [or 8,750 words,] exclusive of the
table of contents, table of authorities and attachments. The
Board, the Executive Director, or Hearing Officer may [waive,
raise or reduce] modify this limitation upon motion and for
good cause shown; or on [its] their own initiative. Briefs,
motions, responses, and supporting memoranda shall be on
standard letter-size paper (8-1/2" x 11"). To the extent that
such a filing exceeds 35 double-spaced pages, the Hearing
Officer, Board, or Executive Director may, in their
discretion, reject the filing in whole or in part, and may
provide the parties an opportunity to refile.
[Sec. 9.02] 1.05 Signing of Pleadings, Motions and Other
Filings; Violation of Rules; Sanctions.
(a) Signing. 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. In the case of an
electronic filing, an electronic signature is acceptable. 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.
(b) Sanctions. 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] their
own initiative, [shall] may 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
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. 1.04] 1.06 Availability of Official Information.
(a) Policy. It is the policy of the Board, the [Office]
Executive Director, 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.
* * * * *
(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 or on line at
www.compliance.gov.
* * * * *
(f) Access by Committees of Congress. [At the discretion of
the Executive Director, the] The Executive Director, at his
or her discretion, may provide to the [Committee on Standards
of Official Conduct of the House of Representatives] House
Committee on Ethics and the [Select Committee on Ethics of
the Senate] U.S. Senate Select Committee on Ethics 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.
[Sec. 1.05] 1.07 Designation of Representative.
(a) [An employee, other charging individual or] A party [a
witness, a labor organization, an employing office, or an
entity alleged to be responsible for correcting a violation]
wishing to be represented [by another individual,] must file
with the Office a written notice of designation of
representative. No more than one representative, [or] firm,
or other entity may be designated as representative for a
party for the purpose of receiving service, unless approved
in writing by the Hearing Officer or Executive Director. The
representative may be, but is not required to be, an
attorney. If the representative is an attorney, he or she may
sign the designation of representative on behalf of the
party.
(b) Service Where There is a Representative. [All service]
Service of documents shall be [directed to] on the
representative unless and until such time as the represented
[individual, labor organization, or employing office] party
or representative, with notice to the party, [specifies
otherwise and until such time as that individual, labor
organization, or employing office] notifies the Executive
Director, in writing, of [an amendment] a modification 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 those who are unrepresented [individuals or entities],
with service of the documents, however, directed to the
representative[, as provided].
(c) Revocation of a Designation of Representative. A
revocation of a designation of representative, whether made
by the party or by the representative with notice to the
party, must be made in writing and filed with the Office. The
revocation will be deemed effective the date of receipt by
the Office. At the discretion of the Executive Director,
General Counsel, Mediator, Hearing Officer, or Board,
additional time may be provided to allow the party to
designate a new representative as consistent with the Act.
[Sec. 1.06] 1.08 Maintenance of Confidentiality.
(a) Policy.[In accord with section 416 of the Act, it is
the policy of] Except as provided in sections 416(d), (e),
and (f) of the Act, the Office [to] shall maintain[, to the
fullest extent possible, the] confidentiality in counseling,
mediation, and in [of] the proceedings and deliberations of
Hearing Officers and the Board in accordance with sections
416(a), (b), and (c) of the Act. [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 be
imposed for a violation of those requirements.] Participant.
For the purposes of this rule, participant means an
individual or entity who takes part as either a party,
witness, or designated representative in counseling under
Section 402 of the Act, 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.
(c) Prohibition. Unless specifically authorized by the
provisions of the Act or by these rules, no participant in
counseling, mediation or other proceedings made confidential
under Section 416 of the Act (``confidential proceedings'')
may disclose a written or oral communication that is prepared
for the purpose of or that
[[Page S6368]]
occurs during counseling, mediation, and the proceedings and
deliberations of Hearing Officers and the Board.
(d) Exceptions. Nothing in these rules prohibits a party or
its representative from disclosing information obtained in
confidential proceedings when reasonably necessary to
investigate claims, ensure compliance with the Act or prepare
its prosecution or defense. However, the party making the
disclosure shall take all reasonably appropriate steps to
ensure that persons to whom the information is disclosed
maintain the confidentiality of such information. These rules
do not preclude a Mediator from consulting with the Office
with permission from the party that is the subject of the
consultation, except that when the covered employee is an
employee of the Office a Mediator shall not consult with any
individual within the Office who might be a party or witness.
These rules do not preclude the Office from reporting
statistical information to the Senate and House of
Representatives.
(e) 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 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.
(f) Sanctions. The Executive Director will advise all
participants in mediation and hearing at the time they become
participants of the confidentiality requirements of Section
416 of the Act and that sanctions may be imposed by the
Hearing Officer for a violation of those requirements. No
sanctions may be imposed except for good cause and the
particulars of which must be stated in the sanction order.
[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, in accordance with
section 416(f), publication of certain final decisions.
Section 416(c) does not apply to proceedings under section
215 of the Act, but does apply to the deliberations of
Hearing Officers and the Board under section 215. See also
sections 1.06, 5.04, and 7.12 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 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.
(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.
(d) Contents or Records of Confidential Proceedings. For
the purpose of this rule, the contents or records of
counseling, mediation or other proceeding includes
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 a confidential proceeding.
(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:
(1) 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;
(2) 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;
(3) 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 rendering a judgment by
default against the violating party;
(4) 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--PRE-COMPLAINT PROCEDURES APPLICABLE TO
CONSIDERATION OF ALLEGED VIOLATIONS OF PART A
OF TITLE II OF THE CONGRESSIONAL ACCOUNTABILITY
ACT OF 1995
Sec. 2.01 Matters Covered by Subpart B
Sec. 2.02 Requests for Advice and Information
Sec. 2.03 Counseling
Sec. 2.04 Mediation
Sec. 2.05 Election of Proceedings
Sec. 2.06 Filing of Civil Action Certification of the
Official Record
Sec. 2.07 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 of the
Act apply to covered employees and employing offices certain
rights and protections of the following laws:
* * * * *
(10) Chapter 35 (relating to veteran's preference) of title
5, United States Code
(11) Genetic Information Nondiscrimination Act of 2008.
(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(a) and 207 of the Act and referenced
above in section 2.01(a) of these rules.
* * * * *
Sec. 2.03 Counseling.
(a) Initiating a Proceeding; Formal Request for
Counseling.In order To initiate a proceeding under these
rules regarding an alleged violation of the Act, as referred
to in section 2.01(a), above, an employee shall file a
written request for counseling with the Office[.] [regarding
an alleged violation of the Act, as referred to in section
2.01(a), above.] Individuals wishing to file a formal request
for counseling may call the Office for a form to use for this
purpose. [All 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, in
good faith, 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 request
for counseling must be in writing, and shall be filed
pursuant to the requirements of section 2.03(a) of these
Rules with the Office of Compliance at Room LA-200, 110
Second Street, S.E., Washington, D.C. 20540-1999; FAX 202-
426-1913; TDD 202-426-1912, not later than 180 days after the
alleged violation of the Act.
(d) [Purpose] Overview of the Counseling Period. The Office
will maintain strict confidentiality throughout the
counseling period. The purpose of the counseling period
shall should be used: 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 kept strictly confidential and shall not
be subject to discovery.
[[Page S6369]]
All participants in counseling shall be advised of the
requirement for confidentiality and that disclosure of
information deemed confidential could result in sanctions
later in the proceedings. Nothing in these rules shall
prevent a counselor from consulting with personnel within 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 compiling and
publishing statistical information such as that required by
Section 301(h)(3) of the Act, so long as that statistical
information does not reveal the identity of [the employees]
an individual employee involved or of an employing
offices that are is the subject of a specific request for
counseling.
(2) [The] In accord with section 416(a) of the Act, the
employee and the Office may agree to waive confidentiality
of during the counseling process for the limited purpose of
allowing the Office [contacting the employing office] to
[obtain information] notify the employing office of the
allegations 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.
* * * * *
(g) Role of Counselor in Defining Concerns. The Counselor
may shall:
(1) obtain the name, home and office mailing and e-mail
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, e-mail
address, if known, and the employing office in which this
person(s) works;
* * * * *
(5) obtain the name, business and e-mail addresses, and
telephone number of the employee's representative, if any,
and whether the representative is an attorney.
(i)(h) 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 regarding the
Act and the Office 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)(i) 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 filed by
the employee in accordance with section 1.03(a) of these
rules, unless the employee requests in writing on a form
provided by the Office to reduce the period and the Office
Executive Director agrees to reduce the period].
(h)(j) Role of Counselor in Attempting Informal
Resolution. In order to attempt to resolve the matter brought
to the attention of the counselor, the counselor must obtain
a waiver of confidentiality pursuant to section 2.03(e)(2) of
these rules. 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 9.05 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.
(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, and shall notify the Office in writing of any
change in pertinent contact information, such as address, e-
mail, fax number, etc. An employee, however, may withdraw
from counseling once without prejudice to the employee's
right to reinstate counseling regarding the same matter,
provided that the request to reinstate counseling is in
writing and is received in filed with 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,] first class mail, or by personal
delivery evidenced by a written receipt, or electronic
transmission. 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, in his or
her sole discretion, may recommend that the employee use the
grievance internal procedures of the Architect of the
Capitol or the Capitol Police pursuant to a Memorandum of
Understanding (MOU) between the Architect of the Capitol and
the Office or the Capitol Police and the Office addressing
certain procedural and notification requirements. The term
``[grievance] internal procedure(s)'' refers to any internal
procedure of the Architect of the Capitol and the Capitol
Police, including grievance procedures referred to in section
401 of the Act, 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 in writing to
the employee that the employee use the grievance internal
procedures of the Architect of the Capitol or of the Capitol
Police, as appropriate, for a period generally up to 90 days,
unless the Executive Director determines, in writing, that a
longer period is appropriate for resolution of the
employee's complaint through the grievance procedures of the
Architect of the Capitol or the Capitol Police]. Once the
employee notifies the Office that he or she is using the
internal procedure, the employee shall provide a waiver of
confidentiality to allow the Executive Director to notify the
Architect of the Capitol or the Capitol Police that the
Executive Director has recommended that the employee use the
internal procedure.
(ii) The period during which the matter is pending in the
internal procedure shall not count against the time available
for counseling or mediation under the Act.
(iii) If the dispute is resolved to the employee's
satisfaction, the employee shall so notify the Office within
20 days after the employee has been served with a final
decision resulting from the internal procedure.
(ii) (iv) After having contacted the Office and having
utilized using the grievance internal procedures of the
Architect of the Capitol or of the Capitol Police], the
employee may notify the Office that he or she wishes to
return to the procedures under these rules:
(A) within 60 days after the expiration of the period
recommended by the Executive Director, if the matter has not
resulted in a final decision or a decision not to proceed; or
(B) within 20 days after service of a final decision or a
decision not to proceed, resulting from the grievance
internal procedures of the Architect of the Capitol 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, the
employee shall so notify the Office within 20 days after the
employee has received service of the final decision resulting
from the grievance procedure. If no request to return to the
procedures under these rules is received within 60 days after
the expiration of the period recommended by the Executive
Director the Office will issue a Notice of End of Counseling,
as specified in section 2.04(i) of these Rules.
(v) If a request to return to counseling is not made by the
employee within the time periods outlined above, the Office
will issue a Notice of the End of Counseling.
(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 of the Capitol or of the Capitol
Police [Board] an allegation which may also be raised under
the procedures set forth in this subpart, the Architect of
the Capitol or the Capitol Police [Board should] shall, in
accordance with the MOU with the Office, 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 of the Capitol or
of the Capitol Police [Board] an allegation which may also be
raised under the procedures set forth in this subpart, any
[final] decision issued [pursuant to the procedures of the
Architect of the Capitol or of the Capitol Police Board
should] under such procedure, shall, pursuant to the MOU with
the Office, 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 of the Capitol or the Capitol Police [Board
should] shall, pursuant to the MOU with the Office, include
with the final decision 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 disposition of the case to the
Executive Director.
Sec. 2.04 Mediation.
(a) [Explanation] Overview. Mediation is a process in which
employees, employing offices and their representatives, if
any, meet separately and/or jointly with a [neutral] Mediator
trained to assist them in resolving disputes. As [parties to]
participants in the mediation, employees, employing offices,
and
[[Page S6370]]
their representatives discuss alternatives to continuing
their dispute, including the possibility of reaching a
voluntary, mutually satisfactory resolution. The [neutral]
Mediator 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. Except to provide for
the services of a Mediator and notice to the employing
office, the invocation of mediation shall be kept
confidential by the Office. The request for mediation shall
contain the employee's name, home and e-mail addresses, [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] may preclude the
employee's further pursuit of his or her claim. If a request
for mediation is not filed within 15 days of receipt of a
Notice of the End of Counseling, the case may be closed and
the employee will be so notified.
* * * * *
(d) Selection of Neutrals Mediators; Disqualification.
Upon receipt of the request for mediation, the Executive
Director shall assign one or more [neutrals] Mediators from a
master list developed and maintained pursuant to section 403
of the Act, to commence the mediation process. In the event
that a [neutral] Mediator 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] Mediator 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.
* * * * *
(2) The [Office] Executive Director may extend the
mediation period upon the joint written request of the
parties, or of the appointed mediator on behalf of the
parties[, to the attention of the Executive Director]. The
request shall be written and filed with the [Office]
Executive Director no later than the last day of the
mediation period. The request shall set forth the joint
nature of the request and the reasons therefore, 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] Executive Director.
(f) Procedures.
(1) The [Neutral's] Mediator's Role. After assignment of
the case, the [neutral] Mediator will promptly contact the
parties. The [neutral] Mediator has the responsibility to
conduct the mediation, including deciding how many meetings
are necessary and who may participate in each meeting. The
[neutral] Mediator may accept and may ask the parties to
provide written submissions.
(2) The Agreement to Mediate. At the commencement of the
mediation, the [neutral] Mediator will ask the [parties]
participants and/or their representatives 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 and a notice that a breach of
the mediation agreement could result in sanctions later in
the proceedings. The Agreement to Mediate will also provide
that the parties to the mediation will not seek to have the
Counselor or the [neutral] Mediator participate, testify or
otherwise present evidence in any subsequent administrative
action under section 405 or any civil action under section
408 of the Act or any other proceeding.
(g) Who May Participate. The covered employee[,] and 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
employing who has actual authority to agree to a settlement
agreement on behalf of 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.]
may elect to participate in mediation proceedings through a
designated representative, provided, that the representative
has actual authority to agree to a settlement agreement or
has immediate access to someone with actual settlement
authority, and provided further, that should the Mediator
deem it appropriate at any time, the physical presence in
mediation of any party may be specifically requested. The
Office may participate in the mediation process, with
permission of the Mediator and the parties. The Mediator will
determine, as best serves the interests of mediation, whether
the participants may meet jointly or separately with the
Mediator.
(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] 9.03 of these
rules.
(i) 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, or will be] personally delivered
evidenced by a written receipt, or sent by first class mail,
e-mail, or fax. [, and it] The notice will specify the date
the mediation period ended and also [notify] provide
information about the employee's [of his or her] right to
elect to file a complaint with the Office in accordance with
section 405 of the Act and section 5.01 of these rules or to
file a civil action pursuant to section 408 of the Act and
section [2.06] 2.07 of these rules.
(j) Independence of the Mediation Process and the [Neutral]
Mediator. The Office will maintain the independence of the
mediation process and the [neutral] Mediator. 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.
[(k) Confidentiality. Except as necessary to consult with
the parties, 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. 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) Violation of Confidentiality in Mediation. An
allegation regarding a violation of the confidentiality
provisions may be made by a party in a mediation to the
mediator during the mediation period and, if not resolved by
agreement in mediation, to a hearing officer during
proceedings brought under Section 405 of the Act
* * * * *
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(i) of these rules, but no sooner
than 30 days after that date, the covered employee may
either:
* * * * *
(2) file a civil action in accordance with section 408 of
the Act and section [2.06] 2.07, below, in the United States
[District Court] 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 [2.06] 408 of the Act, may not thereafter file a
complaint under section [5.01] 405 of the Act on the same
matter.
2.06 Certification of the Official Record
(a) Certification of the Official Record shall contain the
date the Request for Counseling was made; the date and method
of delivery the Notification of End of Counseling Period was
sent to the complainant; the date the Notice was deemed by
the Office to have been received by the complainant; the date
the Request for Mediation was filed; and the date the
mediation period ended.
(b) At any time after a complaint has been filed with the
Office in accordance with section 405 of the Act and the
procedure set out in section 5.01, below; or a civil action
filed in accordance with section 408 of the Act and section
2.07, below, in the United States District Court, a party may
request and receive from the Office Certification of the
Official Record.
(c) Certification of the Official Record will not be
provided until after a complaint has been filed with the
Office or the Office has been notified that a civil action
has been filed in district court.
Sec. [2.06] 2.07 Filing of Civil Action.
* * * * *
(c) Communication Regarding Civil Actions Filed with
District Court. The party filing any civil action with the
United States District Court pursuant to sections 404(2) and
408 of the Act shall provide a written notice to the Office
that the party has filed a civil action, specifying the
district court in which the civil action was filed and the
case number. Failure to notify the Office that such action
has been filed may result in delay in the preparation and
receipt of the Certification of the Official Record.
SUBPART C--[RESERVED (SECTION 210--ADA PUBLIC SERVICES)]
SUBPART D--COMPLIANCE, INVESTIGATION, ENFORCEMENT AND
VARIANCE PROCESS UNDER SECTION 215 OF THE CAA
(OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970)--
INSPECTIONS, CITATIONS, AND COMPLAINTS
Sec. 4.01 Purpose and Scope
Sec. 4.02 Authority for Inspection
Sec. 4.03 Request for Inspections by Employees and Employing
Offices
Sec. 4.04 Objection to Inspection
Sec. 4.05 Entry Not a Waiver
Sec. 4.06 Advance Notice of Inspection
Sec. 4.07 Conduct of Inspections
Sec. 4.08 Representatives of Employing Offices and Employees
Sec. 4.09 Consultation with Employees
Sec. 4.10 Inspection Not Warranted; Informal Review
Sec. 4.11 Citations
Sec. 4.12 Imminent Danger
[[Page S6371]]
Sec. 4.13 Posting of Citations
Sec. 4.14 Failure to Correct a Violation for Which a Citation
Has Been Issued; Notice of Failure to Correct Violation;
Complaint
Sec. 4.15 Informal Conferences
RULES OF PRACTICE FOR VARIANCES, LIMITATIONS, VARIATIONS,
TOLERANCES, AND EXEMPTIONS
Sec. 4.20 Purpose and Scope
Sec. 4.21 Definitions
Sec. 4.22 Effect of Variances
Sec. 4.23 Public Notice of a Granted Variance, Limitation,
Variation, Tolerance, or Exemption
Sec. 4.24 Form of Documents
Sec. 4.25 Applications for Temporary Variances and other
Relief
Sec. 4.26 Applications for Permanent Variances and other
Relief
Sec. 4.27 Modification or Revocation of Orders
Sec. 4.28 Action on Applications
Sec. 4.29 Consolidation of Proceedings
Sec. 4.30 Consent Findings and Rules or Orders
Sec. 4.31 Order of Proceedings and Burden of Proof
INSPECTIONS, CITATIONS AND COMPLAINTS
* * * * *
Sec. 4.02 Authority for Inspection.
(a) Under section 215(c)(1) of the CAA, upon written
request of any employing office or covered employee, the
General Counsel is authorized to enter without delay and at
reasonable times any place where covered employees work
(``place of employment'') [of employment under the
jurisdiction of an employing office]; to inspect and
investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a
reasonable manner, any such place of employment, and all
pertinent conditions, structures, machines, apparatus,
devices, equipment and materials therein; to question
privately any employing office, operator, agent or employee;
and to review records maintained by or under the control of
the covered entity. [required by the CAA and regulations
promulgated thereunder, and other records which are directly
related to the purpose of the inspection.]
* * * * *
Sec. 4.03 Requests for Inspections by Employees and Covered
Employing Offices.
(a) By Covered Employees and Representatives.
(1) Any covered employee or representative of covered
employees who believes that a violation of section 215 of the
CAA exists in any place of employment [under the jurisdiction
of employing offices] may request an inspection of such place
of employment by giving notice of the alleged violation to
the General Counsel. Any such notice shall be reduced to
writing on a form available from the Office, shall set forth
with reasonable particularity the grounds for the notice, and
shall be signed by the employee or the representative of the
employees. A copy shall be provided to the employing office
or its agent by the General Counsel or the General Counsel's
designee no later than at the time of inspection, except
that, upon the written request of the person giving such
notice, his or her name and the names of individual employees
referred to therein shall not appear in such copy or on any
record published, released, or made available by the General
Counsel.
* * * * *
(b) By Employing Offices. Upon written request of any
employing office, the General Counsel or the General
Counsel's designee shall inspect and investigate places of
employment [under the jurisdiction of employing offices]
under section 215(c)(1) of the CAA. Any such requests shall
be reduced to writing on a form available from the Office.
* * * * *
Sec. 4.10 Inspection Not Warranted; Informal Review.
(a) If the General Counsel's designee determines that an
inspection is not warranted because there are no reasonable
grounds to believe that a violation or danger exists with
respect to a notice of violation under section 4.03(a), he or
she shall notify the party giving the notice [in writing] of
such determination in writing. The complaining party may
obtain review of such determination by submitting and serving
a written statement of position with the General Counsel[,]
and [, at the same time, providing] the employing office
[with a copy of such statement by certified mail]. The
employing office may submit and serve an opposing written
statement of position with the General Counsel[,] and [, at
the same time, provide] the complaining party [with a copy of
such statement by certified mail]. Upon the request of the
complaining party or the employing office, the General
Counsel, at his or her discretion, may hold an informal
conference in which the complaining party and the employing
office may orally present their views. After considering all
written and oral views presented, the General Counsel shall
affirm, modify, or reverse the designee's determination and
furnish the complaining party and the employing office with
written notification of this decision and the reasons
therefor. The decision of the General Counsel shall be final
and not reviewable.
* * * * *
Sec. 4.11 Citations.
(a) If, on the basis of the inspection, the General Counsel
believes that a violation of any requirement of section 215
of the CAA, or of including any occupational safety or
health standard promulgated by the Secretary of Labor under
Title 29 of the U.S. Code, section 655, or of any other
regulation [standard], rule or order promulgated pursuant to
section 215 of the CAA, has occurred, he or she shall issue
to the employing office responsible for correction of the
violation, as determined under section 1.106 of the Board's
regulations implementing section 215 of the CAA, either a
citation or a notice of de minimis violations that [have] has
no direct or immediate relationship to safety or health. An
appropriate citation or notice of de minimis violations shall
be issued even though, after being informed of an alleged
violation by the General Counsel, the employing office
immediately abates, or initiates steps to abate, such alleged
violation. Any citation shall be issued with reasonable
promptness after termination of the inspection. No citation
may be issued under this section after the expiration of 6
months following the occurrence of any alleged violation
unless the violation is continuing or the employing office
has agreed to toll the deadline for filing the citation.
* * * * *
* * * * *
Sec. 4.13 Posting of Citations.
(a) Upon receipt of any citation under section 215 of the
CAA, the employing office shall immediately post such
citation, or a copy thereof, unedited, at or near each place
an alleged violation referred to in the citation occurred,
except as provided below. Where, because of the nature of the
employing office's operations, it is not practicable to post
the citation at or near each place of alleged violation, such
citation shall be posted, unedited, in a prominent place
where it will be readily observable by all affected
employees. For example, where employing offices are engaged
in activities which are physically dispersed, the citation
may be posted at the location to which employees report each
day. Where employees do not primarily work at or report to a
single location, the citation may be posted at the location
from which the employees operate to carry out their
activities. When a citation contains security information as
defined in Title 2 of the U.S. Code, section 1979, the
General Counsel may edit or redact the security information
from the copy of the citation used for posting or may provide
to the employing office a notice for posting that describes
the alleged violation without referencing the security
information. The employing office shall take steps to ensure
that the citation or notice is not altered, defaced, or
covered by other material. Notices of de minimis violations
need not be posted.
(b) Each citation, notice, or a copy thereof, shall remain
posted until the violation has been abated, or for 3 working
days, whichever is later. The pendency of any proceedings
regarding the citation shall not affect its posting
responsibility under this section unless and until the Board
issues a final order vacating the citation.
* * * * *
* * * * *
Sec. 4.15 Informal Conferences.
At the request of an affected employing office, employee,
or representative of employees, the General Counsel may hold
an informal conference for the purpose of discussing any
issues raised by an inspection, citation, or notice issued by
the General Counsel. Any settlement entered into by the
parties at such conference shall be subject to the approval
of the Executive Director under section 414 of the CAA and
section [9.05] 9.03 of these rules. If the conference is
requested by the employing office, an affected employee or
the employee's representative shall be afforded an
opportunity to participate, at the discretion of the General
Counsel. If the conference is requested by an employee or
representative of employees, the employing office shall be
afforded an opportunity to participate, at the discretion of
the General Counsel. Any party may be represented by counsel
at such conference.
* * * * *
SUBPART E--COMPLAINTS
Sec. 5.01 Complaints
Sec. 5.02 Appointment of the Hearing Officer
Sec. 5.03 Dismissal, Summary Judgment, and Withdrawal of
Complaint
Sec. 5.04 Confidentiality
Sec. 5.01 Complaints.
(a) Who May File.
(1) An employee who has completed the mediation period
under section 2.04 may timely file a complaint with the
Office alleging any violation of sections 201 through 207 of
the Act[.], under the Genetic Information Nondiscrimination
Act, or any other statute made applicable under the Act.
(2) The General Counsel may timely file a complaint
alleging a violation of section 210, 215 or 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. In cases where a complaint is filed with the Office
sooner than 30 days after the date of receipt of the notice
under section 2.04(i), the Executive Director, at his or her
discretion, may return the complaint to the employee for
filing during the prescribed period without prejudice and
with an explanation of the prescribed period of filing.
* * * * *
(c) Form and Contents.
[[Page S6372]]
(1) Complaints Filed by Covered Employees. A complaint
shall be in writing and may 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 and e-mail addresses, and telephone
number(s) of the complainant;
* * * * *
(v) a brief description of why the complainant believes the
challenged conduct is a violation of the Act or the relevant
sections of the Genetic Information Nondiscrimination Act and
the section(s) of the Act involved;
* * * * *
(vii) the name, mailing and e-mail addresses, 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 in writing, signed by
the General Counsel or his designee and shall contain the
following information:
(i) the name, mail and e-mail addresses, if available, and
telephone number of, as applicable, (A) each entity
responsible for correction of an alleged violation of section
210(b), (B) each employing office alleged to have violated
section 215, or (C) each employing office and/or labor
organization alleged to have violated section 220, against
which complaint is brought;
* * * * *
(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] or first class mail, e-mail, or facsimile with a copy
of the complaint or amended complaint and [a copy of these
rules] written notice of the availability of these rules at
www.compliance.gov. A copy of these rules may also be
provided if requested by either party. 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.] In answering a complaint, a party must state
in short and plain terms its defenses to each claim asserted
against it and admit or deny the allegations asserted against
it by an opposing party. Failure to [file an answer] deny an
allegation, other than one relating to the amount of damages,
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.
(g) Motion to Dismiss. In addition to an answer, a
respondent may file a motion to dismiss, or other responsive
pleading with the Office and serve one copy on the
complainant. Responses to any motions shall be in compliance
with section 1.04(c) of these rules
(h) Confidentiality. The fact that a complaint has been
filed with the Office by a covered employee shall be kept
confidential by the Office, except as allowed by these rules.
Sec. 5.02 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 5.03 and 7.01(b) below. The
Hearing Officer shall not be the Counselor involved in or the
[neutral] Mediator who mediated the matter under sections
2.03 and 2.04 of these rules.
Sec. 5.03 Dismissal, Summary Judgment and Withdrawal of
Complaints.
* * * * *
(f) 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 and may be with or without prejudice to
refile at the Hearing Officer's discretion, consistent with
section 404 of the CAA.
(g) 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 and
may be with or without prejudice to refile at the Hearing
Officer's discretion, consistent with section 404 of the CAA.
(h) Withdrawal From a Case by a Representative. A
representative must provide sufficient notice to the Hearing
Officer and the parties of record of his or her withdrawal.
Until the party designates another representative in writing,
the party will be regarded as pro se.
Sec. 5.04 Confidentiality.
Pursuant to section 416(c) of the Act, except as provided
in sub-sections 416(d), (e) and (f), all proceedings and
deliberations of Hearing Officers and the Board, including
any related records, shall be confidential. Section 416(c)
does not apply to proceedings under section 215 of the Act,
but does apply to the deliberations of Hearing Officers and
the Board under section 215. A violation of the
confidentiality requirements of the Act and these rules
[could] may result in the imposition of procedural or
evidentiary sanctions. [Nothing in these rules shall prevent
the Executive Director from reporting statistical information
to the Senate and House of Representatives, so long as that
statistical information does not reveal the identity of the
employees involved or of employing offices that are the
subject of a matter.] See also sections [1.06] 1.08 [1.07]
1.09 and 7.12 of these rules.
SUBPART F--DISCOVERY AND SUBPOENAS
Sec. 6.01 Discovery
Sec. 6.02 Requests for Subpoenas
Sec. 6.03 Service
Sec. 6.04 Proof of Service
Sec. 6.05 Motion to Quash
Sec. 6.06 Enforcement
Sec. 6.01 Discovery. (a) [Explanation] Description.
Discovery is the process by which a party may obtain from
another person, including a party, 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. No discovery, oral or written, by any party shall
[This provision shall not be construed to permit any
discovery, oral or written, to] be taken of or from an
employees of the Office of Compliance, [or the]
Counselor[(s)], or Mediator [the neutral(s) involved in
counseling and mediation.], including files, records, or
notes produced during counseling and mediation and maintained
by the Office.
(b) Initial Disclosure. [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 minimizes the need for
parties to formally request such information.] Within 14 days
after the pre-hearing conference or as soon as the
information is known, and except as otherwise stipulated or
ordered by the Hearing Officer, a party must, without
awaiting a discovery request, provide to the other parties:
the name and, if known, mail and e-mail addresses and
telephone number of each individual likely to have
discoverable information that the disclosing party may use to
support its claims or defenses; and a copy or a description
by category and location of all documents, electronically
stored information, and tangible things that the disclosing
party has in its possession, custody, or control and may use
to support its claims or defenses.
(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 and the underlying statute.
(1) The [Hearing Officer may authorize] parties may take
discovery by one or more of the following methods:
depositions upon oral examination or written questions;
written interrogatories; production of documents or things or
permission to enter upon land or other property for
inspection or other purposes; physical and mental
examinations; and requests for admission.
(2) The Hearing Officer may adopt standing orders or make
any order setting forth the forms and extent of discovery,
including orders limiting the number of depositions,
interrogatories, and requests for production of documents,
and may also limit the length of depositions.
* * * * *
(d) Claims of Privilege.
(1) Information Withheld. Whenever a party withholds
information otherwise discoverable under these rules by
claiming that it is privileged or confidential or subject to
protection as hearing or trial preparation materials, the
party shall make the claim expressly in writing 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. A party must make a claim for
privilege no later than the due date for the production of
the information. (2) Information Produced As Inadvertent
Disclosure. If information produced in discovery is subject
to a claim of privilege or of protection as hearing
preparation material, the party making the claim may notify
any party that received the information of the claim and the
basis for it. After being notified, a party must promptly
return, sequester, or destroy the specified information and
any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to
retrieve the information if the party disclosed it before
being notified; and may promptly present the information to
the Hearing Officer or the Board under seal for a
determination of the claim. The producing party must preserve
the information until the claim is resolved.
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 requested by any
[[Page S6373]]
party may be issued for the attendance or testimony of an
employee [with] of the Office of Compliance, a Counselor or a
Mediator, acting in their official capacity, including files,
records, or notes produced during counseling and mediation
and maintained by the Office. Employing offices shall make
their employees available for discovery and hearing without
requiring a subpoena.
* * * * *
(d) Rulings. The Hearing Officer shall promptly rule on the
request for the subpoena.
* * * * *
SUBPART G--HEARINGS
Sec. 7.01 The Hearing Officer
Sec. 7.02 Sanctions
Sec. 7.03 Disqualification of the Hearing Officer
Sec. 7.04 Motions and Prehearing Conference
Sec. 7.05 Scheduling the Hearing
Sec. 7.06 Consolidation and Joinder of Cases
Sec. 7.07 Conduct of Hearing; Disqualification of
Representatives
Sec. 7.08 Transcript
Sec. 7.09 Admissibility of Evidence
Sec. 7.10 Stipulations
Sec. 7.11 Official Notice
Sec. 7.12 Confidentiality
Sec. 7.13 Immediate Board Review of a Ruling by a Hearing
Officer
Sec. 7.14 Proposed Findings of Fact and Conclusions of Law;
Posthearing Briefs
Sec. 7.15 Closing the Record of the Hearing
Sec. 7.16 Hearing Officer Decisions; Entry in Records of the
Office; Corrections to the Record; Motions to Alter,
Amend or Vacate the Decision.
Sec. 7.01 The Hearing Officer.
* * * * *
(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:
* * * * *
(14) maintain and enforce the confidentiality of
proceedings; and
* * * * *
Sec. 7.02 Sanctions.
* * * * *
(b) The Hearing Officer may impose sanctions upon the
parties under, but not limited to, the circumstances set
forth in this section.
(1) 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:
[(a)](A) draw an inference in favor of the requesting party
on the issue related to the information sought;
[(b)](B) stay further proceedings until the order is
obeyed;
[(c)](C) prohibit the party failing to comply with such
order from introducing evidence concerning, or otherwise
relying upon, evidence relating to the information sought;
[(d)](D) permit the requesting party to introduce secondary
evidence concerning the information sought;
[(e)](E) strike, in whole or in part, [any part of] the
complaint, briefs, answer, or other submissions of the party
failing to comply with the order, as appropriate;
[(f)](F) direct judgment against the non-complying party in
whole or in part.[; or]
[(g) 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,
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.]
(2) 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] decide the matter, where appropriate.
* * * * *
(4) Filing of frivolous claims. If a party files a
frivolous claim, the Hearing Officer may dismiss the claim,
sua sponte, in whole or in part, with prejudice or decide the
matter for the party alleging the filing of the frivolous
claim.
(5) Failure to maintain confidentiality. An allegation
regarding a violation of the confidentiality provisions may
be made to a Hearing Officer in proceedings under Section 405
of the CAA. If, after notice and hearing, the Hearing Officer
determines that a party has violated the confidentiality
provisions, the Hearing Officer may:
(A) direct that the matters related to the breach of
confidentiality or other designated facts be taken as
established for purposes of the action, as the prevailing
party claims;
(B) prohibit the party breaching confidentiality from
supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence;
(C) strike the pleadings in whole or in part;
(D) stay further proceedings until the breach of
confidentiality is resolved to the extent possible;
(E) dismiss the action or proceeding in whole or in part;
or
(F) render a default judgment against the party breaching
confidentiality.
(c) No sanctions may be imposed under this section except
for good cause and the particulars of which must be stated in
the sanction order.
* * * * *
Sec. 7.04 Motions and Prehearing Conference.
* * * * *
(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, except that the Executive Director may, for good
cause, extend up to an additional 7 days the time for serving
notice of the prehearing conference.
(c) Prehearing Conference Memoranda. The Hearing Officer
may order each party to prepare a prehearing conference
memorandum. At his or her discretion, the Hearing Officer may
direct the filing of the memorandum after discovery by the
parties has concluded. [That] The memorandum may include:
* * * * *
(3) the specific relief, including, where known, a
calculation of the amount of any monetary relief , or
damages that is being or will be requested;
(4) the names of potential witnesses for the party's case,
except for potential impeachment or 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.); and
* * * * *
(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 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, stipulations, or
agreements of the parties. Such order, when entered, shall
control the course of the proceeding, subject to later
modification by the Hearing Officer by his or her own motion
or upon proper request of a party for good cause shown.
Sec. 7.05 Scheduling the Hearing.
* * * * *
(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 Hearing Officer, shall set
forth the reasons for the request, and shall state whether
the opposing party consents to such postponement. Such a
motion may be granted by the Hearing Officer 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.
* * * * *
(b) Authority. The Executive Director prior to the
assignment of a complaint to a Hearing Officer; a Hearing
Officer during the hearing; or the Board , the Office, or a
Hearing Officer during an appeal may consolidate or join
cases on their own initiative or on the motion of a party if
to do so would expedite processing of the cases and not
adversely affect the interests of the parties, taking into
account the confidentiality requirements of section 416 of
the Act.
Sec. 7.07 Conduct of Hearing; Disqualification of
Representatives.
* * * * *
(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 expected to
be called to testify, excluding impeachment or rebuttal
witnesses , expected to be called to testify.
* * * * *
(f) Failure of either party to appear, present witnesses,
or respond to an evidentiary order may result in an adverse
finding or ruling by the Hearing Officer. At the discretion
of the Hearing Officer, the hearing may also be held in the
absence of the complaining party if the representative for
that party is present.
(f)(g) If the Hearing Officer concludes that a
representative of an employee, a witness, a charging party, a
labor organization, an employing office, or an entity alleged
to be responsible for correcting a violation 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 shall be afforded
reasonable time to retain other representation.
Sec. 7.08 Transcript.
* * * * *
(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
parties. Corrections of the official transcript will be
permitted only upon approval of the Hearing Officer. The
Hearing Officer may make corrections at any time with notice
to the parties.
* * * * *
Sec. 7.12 Confidentiality.
(a) Pursuant to section 416 of the Act and section 1.08 of
these Rules, 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 sections 416(d), (e),
[[Page S6374]]
and (f) of the Act and section 1.08(d) of these Rules. 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. This
provision shall not apply to proceedings under section 215 of
the Act, but shall apply to the deliberations of Hearing
Officers and the Board under that section.
(b) Violation of Confidentiality. An allegation regarding a
violation of confidentiality occurring during a hearing may
be resolved by a Hearing Officer in proceedings under Section
405 of the CAA. After providing notice and an opportunity to
the parties to be heard, the Hearing Officer, in accordance
with section 1.08(f) of these Rules, may make a finding of a
violation of confidentiality and impose appropriate
procedural or evidentiary sanctions, which may include any of
the sanctions listed in section 7.02 of these Rules.
Sec. 7.13 Immediate Board Review of a Ruling by a Hearing
Officer.
* * * * *
(b) 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. Responses, if
any, shall be filed with the Hearing Officer within 3 days
after service of the motion.
(b)(c) Standards for Review. In determining whether to
certify and forward a request for interlocutory review to the
Board, the Hearing Officer shall consider all of the
following:
* * * * *
(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.
Responses, if any, shall be filed with the Hearing Officer
within 3 days after service of the motion.
(d) Hearing Officer Action. If all the conditions set forth
in paragraph (b)(c) above are met, the Hearing Officer
shall certify and 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)](c)
have been met. The decision of the Hearing Officer to forward
or decline to forward a request for review is not appealable.
(e) Grant of Interlocutory Review Within Board's Sole
Discretion. Upon the Hearing Officer's certification and
decision to forward a request for review, [T]the Board, in
its sole discretion, may grant interlocutory review. The
Board's decision to grant or deny interlocutory review is not
appealable.
* * * * *
[(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)(g) Procedures before Board. Upon its [acceptance of a
ruling of the Hearing Officer for] decision to grant
interlocutory review, the Board shall issue an order setting
forth the procedures that will be followed in the conduct of
that review.
(i)(h) 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 Proposed Findings of Fact and Conclusions of Law;
Posthearing Briefs.
(a) May be Filed Required. The Hearing Officer may
permit require the parties to file proposed findings of
fact and conclusions of law and/or 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 shall exceed 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 argument,
briefs, documents or additional evidence previously
identified for introduction, the record will remain open for
as much time as the Hearing Officer grants for that purpose
[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 that new and material evidence has become
available that was not available despite due diligence prior
to the closing of the record or it is in rebuttal to new
evidence or argument submitted by the other party just before
the record closed. [However, the] The Hearing Officer shall
also make part of the record any [motions for attorney fees,
supporting documentation, and determinations thereon, and]
approved correction to the transcript.
Sec. 7.16 Hearing Officer Decisions; Entry in Records of the
Office; Corrections to the Record; Motions to Alter, Amend
or Vacate the Decision.
* * * * *
(b) The Hearing Officer's written decision shall:
(1) state the issues raised in the complaint;
(2) describe the evidence in the record;
(3) contain findings of fact and conclusions of law, and
the reasons or bases therefore, on all the material issues of
fact, law, or discretion that were presented on the record;
(4) contain a determination of whether a violation has
occurred; and
(5) order such remedies as are appropriate under the CAA.
[(b)](c) Upon issuance, the decision and order of the
Hearing Officer shall be entered into the records of the
Office.
[(c)](d) The Office shall promptly provide a copy of the
decision and order of the Hearing Officer to the parties.
[(d)](e) 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
8.03 of these rules.
(f) Corrections to the Record. After a decision of the
Hearing Officer has been issued, but before an appeal is made
to the Board, or in the absence of an appeal, before the
decision becomes final, the Hearing Officer may issue an
erratum notice to correct simple errors or easily correctible
mistakes. The Hearing Officer may do so on motion of the
parties or on his or her own motion with or without advance
notice.
(g) After a decision of the Hearing Officer has been
issued, but before an appeal is made to the Board, or in the
absence of an appeal, before the decision becomes final, a
party to the proceeding before the Hearing Officer may move
to alter, amend or vacate the decision. The moving party must
establish that relief from the decision is warranted because:
(1) of mistake, inadvertence, surprise, or excusable neglect;
(2) there is newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new hearing; (3) there has been fraud, misrepresentation,
or misconduct by an opposing party; (4) the decision is void;
or (5) the decision has been satisfied, released, or
discharged; it is based on an earlier decision that has been
reversed or vacated; or applying it prospectively is no
longer equitable. The motion shall be filed within 15 days
after service of the Hearing Officer's decision. No response
shall be filed unless the Hearing Officer 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 Hearing Officer unless
so ordered by the Hearing Officer.
SUBPART H--PROCEEDINGS BEFORE THE BOARD
Sec. 8.01 Appeal to the Board
Sec. 8.02 Reconsideration
Sec. 8.03 Compliance with Final Decisions, Requests for
Enforcement
Sec. 8.04 Judicial Review
8.05 Application for Review of an Executive Director Action
8.06 Exceptions to Arbitration Awards
8.07 Expedited Review of Negotiability
8.08 Procedures of the Board in Impasse Proceedings
Sec. 8.01 Appeal to the Board.
(a) No later than 30 days after the entry of the final
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.
* * * * *
(3) [Upon written delegation by the Board,] In any case in
which the Board has not rendered a determination on the
merits, the Executive Director is authorized to: determine
any request for extensions of time to file any post-petition
for review document or submission with the Board [in any case
in which the Executive Director has not rendered a
determination on the merits,]; determine any request for
enlargement of page limitation of any post-petition for
review document or submission with the Board; or require
proof of service where there are questions of proper service.
Such delegation shall continue until revoked by the Board.
* * * * *
(d) Upon appeal, the Board shall issue a written decision
setting forth the reasons for its decision. The Board may
dismiss the appeal or 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] a Hearing
Officer for further action or proceedings, including the
reopening of the record for the taking of additional
evidence. The decision by the Board to remand a case is not
subject to judicial review under Section 407 of the Act. The
procedures for a remanded hearing shall be governed by
subparts F, G, and H of these Rules. 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
[[Page S6375]]
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
under Section 407 of the Act.
* * * * *
(h) Record. The docket sheet, 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,
docketed Memoranda for the Record, or correspondence between
the Office and the parties, 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 shall constitute the record in the case.
* * * * *
(j) An appellant may move to withdraw a petition for review
at any time before the Board renders a decision. The motion
must be in writing and submitted to the Board. The Board, at
its discretion, may grant such a motion and take whatever
action is required.
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. The decision to grant or deny a motion for
reconsideration is within the sole discretion of the Board
and is not appealable.
Sec. 8.03 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, and except as provided in
sections 210(d)(5) and 215(c)(6) 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 other
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 or 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. A party may also file a petition for
attorneys fees and/or damages unless the Board has, in its
discretion, stayed the final decision of the Office during
the pendency of the appeal pursuant to Section 407 of the
Act.
* * * * *
(d) To the extent provided in Section 407(a) of the Act and
Section 8.04 of this section, the appropriate [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.
* * * * *
* * * * *
8.05 Application for Review of an Executive Director
Action.
For additional rules on the procedures pertaining to the
Board's review of an Executive Director action in
Representation proceedings, refer to Parts 2422.30-31 of the
Substantive Regulations of the Board, available at
www.compliance.gov.
8.06 Expedited Review of Negotiability Issues.
For additional rules on the procedures pertaining to the
Board's expedited review of negotiability issues, refer to
Part 2424 of the Substantive Regulations of the Board,
available at www.compliance.gov.
8.07 Review of Arbitration Awards.
For additional rules on the procedures pertaining to the
Board's review of arbitration awards, refer to Part 2425 of
the Substantive Regulations of the Board, available at
www.compliance.gov.
8.08 Procedures of the Board in Impasse Proceedings.
For additional rules on the procedures of the Board in
impasse proceedings, refer to Part 2471 of the Substantive
Regulations of the Board, available at www.compliance.gov.
SUBPART I--OTHER MATTERS OF GENERAL APPLICABILITY
9.01 Filing, Service and Size Limitations of Motions,
Briefs, Responses and other Documents.
9.02 Signing of Pleadings, Motions and Other Filings;
Violations of Rules; Sanctions
9.03 9.01 Attorney's Fees and Costs
9.04 9.02 Ex parte Communications
9.05 9.03 Informal Resolutions and Settlement
Agreements
9.06 9.04 Revocation, Amendment or Waiver of Rules
9.01 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 or a party to any other matter
or determination reviewable by the Board files an appeal or
other submission with the Board, one original and seven
copies of any submission and any responses must be filed with
the Office. The Office, Hearing Officer, or Board may also
request a party to submit an electronic version of any
submission in a designated format, with receipt confirmed by
electronic transmittal in the same format.
(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. 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, must be
accompanied by a certificate of service specifying how, when
and on whom service was made. It shall be the duty of each
party to notify the Office and all other parties 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 filed 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,
Executive Director, or Hearing Officer may waive, raise or
reduce this limitation for good cause shown or on its own
initiative. Briefs, motions, responses, and supporting
memoranda shall be on standard letter-size paper (8-1/2" x
11").
Sec. 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
Hearing Officer, the Executive Director, 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.
[ 9.03 9.01 Attorney's Fees and Costs
(a) Request. No later than 20 30 days after the entry of
a final Hearing Officer's decision of the Office, under
section 7.16, or after service of a Board decision by the
Office the complainant, if he or she is a the prevailing
party[,] may submit to the Hearing Officer or Arbitrator who
heard decided the case initially a motion for the award of
reasonable attorney's fees and costs, following the form
specified in paragraph (b) below. All motions for attorney's
fees and costs shall be submitted to the Hearing Officer.]
The Hearing Officer or Arbitrator, after giving the
respondent an opportunity to reply, shall rule on the motion.
Decisions regarding attorney's fees and costs are collateral
and do not affect the finality or appealability of a final
decision issued by the Hearing Officer Office. A ruling on
a motion for attorney's fees and costs may be appealed
together with the final decision of the Hearing Officer. If
the motion for attorney's fees is ruled on after the final
decision has been issued by the Hearing Officer, the ruling
may be appealed in the same manner as a final decision,
pursuant to section 8.01 of these Rules.
(b) Form of Motion. 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 attorney's fees and/or
costs shall be accompanied by:
* * * * *
(3) the attorney's customary billing rate for similar work
with evidence that the rate is consistent with the prevailing
community rate for similar
[[Page S6376]]
services in the community in which the attorney ordinarily
practices; and
(4) an itemization of costs related to the matter in
question[.]; and
(5) evidence of an established attorney-client
relationship.
[ 9.04 9.02 Ex parte Communications
(a) Definitions.
* * * * *
(3) For purposes of section [9.04] 9.02 , 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
* * * * *
(c) Prohibited Ex Parte Communications and Exceptions.
* * * * *
(2) The Hearing Officer or the Office may initiate attempts
to settle a matter at any time. The parties may agree to
waive the prohibitions against ex parte communications during
settlement discussions, and they may agree to any limits on
the waiver.
--Renumber subsequent paragraphs--
* * * * *
[ 9.05 9.03 Informal Resolutions and Settlement
Agreements.
* * * * *
(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. The settlement is not
effective until it has been approved by the Executive
Director. If the Executive Director does not approve the
settlement, such disapproval shall be in writing, shall set
forth the grounds therefor, and shall render the settlement
ineffective.
(c) Requirements for a Formal Settlement Agreement. A
formal settlement agreement requires the signature of all
parties or their designated representatives on the agreement
document before the agreement can be submitted to the
Executive Director for signature. A formal settlement
agreement should not be submitted to the Executive Director
for signature until the appropriate revocation periods have
expired. A formal settlement agreement cannot be rescinded
after the signatures of all parties have been affixed to the
agreement, unless by written revocation of the agreement
voluntarily signed by all parties, or as otherwise permitted
by law.
(d) Violation of a Formal Settlement Agreement. If a party
should allege that a formal settlement agreement has been
violated, the issue shall be determined by reference to the
formal dispute resolution procedures of the agreement.
Settlements should include specific dispute resolution
procedures. If the particular formal settlement agreement
does not have a stipulated method for dispute resolution of
an alleged violation of the agreement, the Office may
provide assistance in resolving the dispute, including the
services of a Mediator at the discretion of the Executive
Director. the following dispute resolution procedure shall
be deemed to be a part of each formal settlement agreement
approved by the Executive Director pursuant to section 414 of
the Act: Where the settlement agreement does not have a
stipulated method for resolving violation allegations, Any
complaint an allegation regarding of a violation of a
formal settlement agreement may be filed with the Executive
Director, but no later than 60 days after the party to the
agreement becomes aware of the alleged violation. Such
complaints may be referred by the Executive Director to a
Hearing Officer for a final decision. The procedures for
hearing and determining such complaints shall be governed by
subparts F, G, and H of these Rule. allegations will be
reviewed, investigated or mediated by the Executive Director
or designee, as appropriate.
[ 9.06 9.04 Payments required pursuant to Decisions,
Awards, or Settlements under section 415(a) of the Act
Whenever a final decision or award pursuant to sections
405(g), 406(e), 407, or 408 of the Act, or an approved
settlement pursuant to section 414 of the Act, require the
payment of funds pursuant to section 415(a) of the Act, the
decision, award, or settlement shall be submitted to the
Executive Director to be processed by the Office for
requisition from the account of the Office of Compliance in
the Department of the Treasury, and payment. No payment shall
be made from such account until the time for appeal of a
decision has expired, unless a settlement has been reached in
the absence of a decision to be appealed.
9.07 9.05 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.
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