[Federal Register Volume 59, Number 220 (Wednesday, November 16, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28274]


  Federal Register / Vol. 59, No. 220 / Wednesday, November 16, 1994 /
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[[Page Unknown]]

[Federal Register: November 16, 1994]


                                                   VOL. 59, NO. 220

                                       Wednesday, November 16, 1994

GENERAL ACCOUNTING OFFICE

4 CFR Parts 28 and 29

 

Personnel Appeals Board; Procedural Regulations

AGENCY: General Accounting Office Personnel Appeals Board.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The jurisdiction of the General Accounting Office Personnel 
Appeals Board has recently been expanded by the Architect of the 
Capitol Human Resources Act, which became effective on July 22, 1994. 
Under this new legislation, employees of the Architect of the Capitol 
may file appeals with the Board alleging discrimination in employment 
based on race, color, sex, national origin, religion, age, or 
disability. They may also file appeals alleging retaliation for 
exercising rights under the new law. The Board is issuing procedural 
regulations to implement this new authority. The regulations below also 
include a few conforming amendments to the procedures governing claims 
filed by employees of the General Accounting Office, and a change to 
the procedures for obtaining judicial review of Board decisions 
necessitated by a recent decision of the United States Court of Appeals 
for the District of Columbia Circuit. Because of the need to have 
procedures in place to implement the Board's new jurisdiction, these 
regulations are being made effective immediately, on an interim basis. 
The Board is, however, very interested in receiving comments from the 
public before it finalizes these regulations.

DATES: These interim regulations are effective on November 16, 1994. 
Comments on these regulations must be received by the Board on or 
before February 24, 1995.

ADDRESSES: Comments should be addressed to: Patricia Reardon, Clerk of 
the Board, General Accounting Office Personnel Appeals Board, Suite 
830, Union Center Plaza II, 441 G Street, NW., Washington, DC 20548.

FOR FURTHER INFORMATION CONTACT: Barbara Lipsky, Attorney, Personnel 
Appeals Board, 202-512-6137.

SUPPLEMENTARY INFORMATION: The Architect of the Capitol Human Resources 
Act, Pub. L. 103-283, sec. 312, 108 Stat. 1443, went into effect on 
July 22, 1994. Under this new legislation, the Architect of the Capitol 
is required to ``establish and maintain a personnel management system 
that incorporates fundamental principles that exist in other modern 
personnel systems.'' Id. at sec. 312(b)(2). One important part of the 
Act requires that all personnel actions affecting employees of the 
Architect of the Capitol be taken free from discrimination based on 
race, color, religion, sex, national origin, age, or disability. Id. at 
sec. 312(e)(2)(A). The Act also bans intimidation of or reprisal 
against employees who exercise their rights under the Act. Id. at sec. 
312(e)(2)(B). In order to ensure enforcement of these rights, the Act 
authorizes employees of the Architect of the Capitol to file charges 
alleging discrimination or retaliation with the General Accounting 
Office Personnel Appeals Board. Id. at sec. 312(e)(3)(A).
    The regulations set forth in Part 29 below provide the procedures 
that will govern this new area of the Board's jurisdiction. Because the 
Board needs to have procedures in place to address any charge that is 
filed by an Architect of the Capitol employee, these regulations are 
being made effective immediately, on an interim basis. At the same 
time, however, the Board is soliciting comments on the regulations from 
the Architect of the Capitol and its employees, the General Accounting 
Office and its employees, and the public. These comments will be 
considered fully before final regulations are adopted.
    In drafting these regulations, the Board has attempted, wherever 
possible, to adopt the same procedures that are applicable to cases 
brought before the Board by employees of the General Accounting Office 
(GAO). In the Architect of the Capitol Human Resources Act, Congress 
stated that employees of the Architect of the Capitol may file a charge 
with the Board ``in accordance with the General Accounting Office 
Personnel Act of 1980 [GAOPA] (31 U.S.C. 751-55).'' Id. at sec. 
312(e)(3)(A). The referenced sections of the GAOPA establish both the 
Board and its General Counsel. The Board is authorized to hear and to 
adjudicate certain personnel appeals by GAO employees, and the General 
Counsel is empowered to investigate prohibited personnel practices 
(including prohibited discrimination) and other matters within the 
Board's jurisdiction. 31 U.S.C. 752-753. Pursuant to its authority 
under 31 U.S.C. 753(d), the Board has long had published regulations 
which define the role of the General Counsel and the procedures to be 
followed in pursuing an appeal before the Board. See, 4 CFR Part 28. 
The Board concludes that, by selecting the PAB to hear appeals from 
employees of the Architect of the Capitol and by stating that such 
appeals should be filed ``in accordance with'' the GAOPA, Congress 
intended the Board to follow the same enforcement scheme for Architect 
of the Capitol employees as it does for GAO employees.
    As a result, the Board's General Counsel will play the same 
important enforcement role for Architect of the Capitol employees as he 
does for GAO employees. Charges of discrimination or retaliation will 
initially be filed with and investigated by the Board's General 
Counsel. See Sec. 29.8 below. If the General Counsel concludes that 
there are reasonable grounds to believe that the employee's rights have 
been violated, the General Counsel will represent the individual before 
the Board, unless the individual elects not to be represented by the 
General Counsel. Sec. 29.9(d). This access to professional 
representation is a significant procedural benefit. The General Counsel 
is not, however, a ``gatekeeper'' who can limit an employee's right to 
present his or her case to the Board. If the General Counsel does not 
find reasonable grounds to believe that there has been discrimination 
or retaliation, the employee may still pursue the matter before the 
Board on his or her own or with private counsel.
    Under the procedures applicable to GAO, the Board's General Counsel 
may also initiate proceedings in his or her own name before the Board 
seeking corrective action, disciplinary action, or a stay of a 
personnel action, where the General Counsel concludes that there is 
reason to believe that a prohibited personnel practice (including 
prohibited discrimination) is occurring or has occurred. See, 4 CFR 
Part 28, Subpart G. The Board's General Counsel will also have this 
same enforcement authority with respect to alleged discriminatory 
practices within the Architect of the Capitol. See, Sec. 29.12 below.
    Some other notable features of the new part 29 are summarized 
below:
    1. Definition of ``Employee of the Architect of the Capitol'' 
(Sec. 29.2): The term ``employee of the Architect of the Capitol'' is 
specifically defined in the Architect of the Capitol Human Resources 
Act. See, Pub. L. 103-283, sec. 312(e)(1)(A). That definition is 
restated in the Board's regulations. It includes all employees of the 
Architect of the Capitol, the Botanic Garden, and the Senate 
restaurants. It does not include House of Representatives garage or 
parking lot attendants. ``Employee'' encompasses not only current 
employees, but also applicants for employment and former employees when 
certain specified requirements are met. Every time the term ``employee 
of the Architect of the Capitol'' or ``employee'' is used in the 
regulations, it includes all the individuals covered by the definition 
in Sec. 29.2.
    2. Description of the Board's jurisdiction over claims of 
retaliation (Sec. 29.3(b)): The Architect of the Capitol Human 
Resources Act prohibits ``intimidation of, or reprisal against,'' any 
employee because of the exercise of a right under the Act. See, Pub. L. 
103-283, sec. 312(e)(2)(B). In order to assist employees in knowing 
what actions are covered by this term, the regulation enumerates four 
particular kinds of retaliation claims that may be brought before the 
Board. This list is patterned after the language of Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-3. Using Title 
VII as a model is appropriate because the Architect of the Capitol 
Human Resources Act itself refers to Title VII to provide a definition 
of what constitutes unlawful discrimination. See, sec. 312(e)(2)(A).
    3. Exhaustion of administrative remedies (Sec. 29.6): The Architect 
of the Capitol Human Resources Act states that an employee may not file 
a charge with the Board until that employee has first filed a complaint 
of discrimination with the Architect of the Capitol and exhausted the 
remedies provided by the Architect for the resolution of such 
complaints. Public Law 103-283, sec. 312(e)(3)(A). The Board's 
regulations define what constitutes exhaustion of those remedies. The 
Board will consider the Architect's internal procedures to be exhausted 
when either of the following occurs: (a) The employee receives a final 
decision on his or her complaint; or (b) 120 days have passed without 
the issuance of a final decision by the Architect. This latter 
provision is important to ensure that employees have a meaningful right 
to present their claims to the Board, while witness memories are still 
fresh and effective relief can be fashioned. The same provision is 
contained in the Board's regulations applicable to GAO employees. See, 
4 CFR 28.98(b)(2). It is also comparable to the procedures followed in 
the executive branch for appeals of discrimination claims. See, 5 CFR 
1201.154(b)(2); 29 CFR 1614.108(f).
    The Board appreciates, however, that this provision may work a 
hardship for complaints that are already pending before the Architect 
of the Capitol on the date that these interim regulations are adopted. 
For such pending cases, it may be difficult for the Architect to issue 
a decision within 120 days because it had no prior notice that the 
Board would consider administrative remedies exhausted after that 
point. To ameliorate this problem, the Board is adopting a special rule 
applicable only to charges filed with the Board's General Counsel prior 
to March 1, 1995. Such charges may still be filed with the Board's 
General Counsel after the passage of 120 days if no final decision has 
been issued by the Architect of the Capitol. However, once the charge 
is filed, the Architect may, upon request, obtain a deferral of 
proceedings on the charge for up to 60 days in order to permit the 
Architect to issue a final decision on the claim. This special rule 
will not apply to charges filed with the General Counsel after March 1, 
1995, and will not be included in the Board's final rules.
    4. Class Actions (Secs. 29.6 and 29.8): These regulations permit an 
employee to file a charge as representative of a class of employees of 
the Architect of the Capitol. GAO employees currently enjoy this right, 
as do executive branch employees. See, 4 CFR 28.97; 29 CFR 1614.204. In 
interpreting the ban on discrimination in Federal employment contained 
in Title VII of the Civil Rights Act, the United States District Court 
for the District of Columbia held that executive branch agencies must 
accept class complaints and provide class relief in appropriate 
circumstances. Barrett v. U.S. Civil Service Commission, 69 F.R.D. 544 
(D.D.C. 1975). A similar interpretation of the Architect of the Capitol 
Human Resources Act is justified, as it essentially extends the Title 
VII ban on discrimination to the Architect of the Capitol.
    5. Time periods for filing charges with the General Counsel or 
petitions for review with the Board (Secs. 29.8 and 29.10): The current 
regulations applicable to claims filed by employees of the GAO require 
such employees to file a charge with the Board's General Counsel within 
20 days after receiving the agency's decision on a complaint of 
discrimination or retaliation. 4 CFR 28.98(b). Similarly, employees 
have 20 days after service of a Right to Appeal Letter by the Board's 
General Counsel, in which to file a petition for review with the Board. 
4 CFR 28.18(b). The Board was concerned that this 20-day period may not 
provide sufficient time for employees of the Architect of the Capitol 
to file their claims with the Board and its General Counsel. The Board 
is not a part of their agency and it is not located in one of their 
buildings. It will take some time for employees of the Architect of the 
Capitol to become familiar with the Board's existence, its procedures, 
and its location. For this reason the Board has increased the time 
period for filing charges with the General Counsel and petitions for 
review with the Board to 30 days. In order to have consistent 
regulations for the two agencies within the Board's jurisdiction, the 
Board is also increasing these filing times to 30 days for claims filed 
by employees of the General Accounting Office.
    6. Application of these regulations to pending cases (Sec. 29.13): 
The Architect of the Capitol Human Resources Act became effective on 
July 22, 1994. From that date forward, employees of the Architect of 
the Capitol have enjoyed the right to bring their claims of 
discrimination to the Board, once they have exhausted the necessary 
remedies within their agency. The legislative history of the Act carves 
out one exception to this rule. Certain employees of the Architect of 
the Capitol had the right, prior to July 22, 1994, to file a complaint 
of discrimination with the Office of Senate Fair Employment Practices. 
See, Government Employee Rights Act of 1991, 2 U.S.C. 1201. Any 
complaint of discrimination that was pending with or on appeal from 
that office on July 22, 1994, is to continue to be processed by that 
office, pursuant to the procedures of the Government Employee Rights 
Act of 1991. See, H. R. Rep. No. 103-567, 103d Cong., 2d Sess. at 14 
(1994).

Changes to the Procedures Applicable to Employees of the General 
Accounting Office

    The adoption of the new regulations concerning employees of the 
Architect of the Capitol necessitates certain conforming amendments to 
4 CFR Part 28, which sets forth the procedures applicable to employees 
of the GAO. In addition, the Board is amending the provisions of its 
regulations concerning judicial review of Board decisions to reflect a 
recent decision by the United States Court of Appeals for the District 
of Columbia Circuit. These changes are described below.
    1. Purpose and scope (Sec. 28.1): Section 28.1 has been amended to 
make clear that the procedures in Part 28 implement the Board's 
authority with respect to GAO employees, while the procedures 
applicable to Architect of the Capitol employees are set forth in Part 
29.
    2. Time periods for filing charges with the Board's General Counsel 
and for filing petitions for review with the Board (Secs. 28.11, 28.18, 
and 28.98): The Board is expanding the time periods for filing charges 
with the Board's General Counsel and for filing petitions for review 
with the Board. GAO employees will now have 30 days following the 
relevant agency action in which to file charges with the Board's 
General Counsel. In addition, they will have 30 days following service 
of a Right to Appeal Letter by the Board's General Counsel in which to 
file a petition for review with the Board.
    As discussed above, the Board concluded that expanded filing 
periods were necessary in order to give employees of the Architect of 
the Capitol sufficient time in which to exercise their appeal rights. 
The Board decided that it was desirable to have one consistent set of 
time frames applicable to all claims that are filed with the Board. It 
therefore decided to extend these expanded time periods to claims filed 
by GAO employees. As a result, GAO employees will also have the benefit 
of additional time in which to make decisions about their appeal 
options, and to prepare and submit their papers to the Board. See 
changes below to Secs. 28.11(b), 28.18(b), and 28.98(b) and (c).
    3. Judicial review of Board decisions (Sec. 28.90): Two changes 
have been made to the procedures for seeking judicial review of Board 
decisions. First, the Architect of the Capitol Human Resources Act 
amended the Board's governing statute to make clear that final Board 
decisions concerning Architect of the Capitol employees may be appealed 
to the United States Court of Appeals for the Federal Circuit. See, 
Pub. L. 103-283, sec. 312(e)(4)(C). This statutory change is reflected 
in the amendment to Sec. 28.90(a) below.
    Several sections of the Board's regulations that concern judicial 
remedies have also been amended in light of the decision of the United 
States Court of Appeals for the District of Columbia Circuit in Ramey 
v. Bowsher, 9 F.3d 133 (D.C. Cir. 1993). For many years, the Board's 
regulations have provided that employees complaining of unlawful 
discrimination on the basis on race, color, religion, sex, national 
origin, age, or disability may file suit in Federal district court even 
after they have received a final decision from the Board on their 
claim. See, current 4 CFR 28.100. In Ramey, the District of Columbia 
Circuit held that the Board's interpretation was erroneous and that an 
employee's only recourse following a final decision of the Board on a 
claim of discrimination is to seek appellate review before the United 
States Court of Appeals for the Federal Circuit.
    Ramey is binding in the District of Columbia Circuit where a great 
many of the employees within the Board's jurisdiction are employed and 
would be bringing suit. While there exists the possibility that another 
circuit might some day render a different interpretation, it is clear 
that the Board has no authority to define the jurisdiction of the 
Federal courts. A Board regulation on this subject, therefore, could 
not be binding and might have the effect of giving employees erroneous 
advice on their judicial remedies. For this reason, the Board has 
decided to confine the scope of its regulations to the conduct of 
matters before the Board, and to eliminate any interpretations 
concerning what alternate judicial remedies might be available to 
employees. The Board has, therefore, deleted Sec. 28.100 in its 
entirety and eliminated all cross references to that section. See 
changes to Secs. 28.17, 28.90, 28.100, and 28.101.
    The Board will retain Sec. 28.90 which informs employees of the 
procedures for seeking judicial review of a final Board decision before 
the Federal Circuit. This is retained because such appeals are 
explicitly authorized by the Board's governing statute and because 
there is no legal dispute about an employee's right to file such 
appeals. The legal uncertainty highlighted by the Ramey case concerns 
whether GAO employees have any other options for obtaining judicial 
consideration of their claims of discrimination. The Board will leave 
that matter for resolution by the courts.

List of Subjects

4 CFR Part 28

    Administrative practice and procedure, Equal employment 
opportunity, Government employees, Labor-management relations.

4 CFR Part 29

    Administrative practice and procedure, Equal employment 
opportunity, Government employees.

    For the reasons set out in the preamble, Title 4, Chapter I, 
Subchapter B, Code of Federal Regulations, is amended as follows.
    1. The authority citation for Part 28 continues to read as follows:

    Authority: 31 U.S.C. 753.

    2. The heading of Part 28 is revised to read as follows:

PART 28--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE GENERAL ACCOUNTING OFFICE

    3. and 4. Section 28.1 is revised to read as follows:


Sec. 28.1  Purpose and scope.

    (a) The regulations in this part implement the Board's authority 
with respect to employment practices within the General Accounting 
Office (GAO), pursuant to the General Accounting Office Personnel Act 
of 1980, 31 U.S.C. 751-755. Regulations implementing the Board's 
authority with respect to employment practices within the Architect of 
the Capitol, pursuant to the Architect of the Capitol Human Resources 
Act, Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994), 
appear in 4 CFR part 29.
    (b) The purpose of the rules in this part is to establish the 
procedures to be followed:
    (1) By the GAO, in its dealings with the Board;
    (2) By employees of the GAO or applicants for employment with the 
GAO, or by groups or organizations claiming to be affected adversely by 
the operations of the GAO personnel system;
    (3) By employees or organizations petitioning for protection of 
rights or extension of benefits granted to them under Subchapters III 
and IV of Chapter 7 of Title 31, U.S.C.; and
    (4) By the Board, in carrying out its responsibilities under 
Subchapters III and IV of Chapter 7 of Title 31, U.S.C.
    (c) The scope of the Board's operations encompasses the 
investigation and, where necessary, adjudication of cases arising under 
31 U.S.C. 753. In addition, the Board has authority for oversight of 
the equal employment opportunity program at GAO. This includes the 
review of policies and evaluation of operations as they relate to EEO 
objectives and, where necessary, the ordering of corrective action for 
violation of or inconsistencies with equal employment opportunity laws.
    (d) In considering any procedural matter not specifically addressed 
in these rules, the Board will be guided, but not bound, by the Federal 
Rules of Civil Procedure.
    5. Paragraph (b) of Sec. 28.11 is revised to read as follows:


Sec. 28.11  Filing a charge with the General Counsel.

* * * * *
    (b) When to file. (1) Charges relating to adverse and performance-
based actions must be filed within 30 days after the effective date of 
the action.
    (2) Charges relating to other personnel actions must be filed 
within 30 days after the effective date of the action or 30 days after 
the charging party knew or should have known of the action.
    (3) Charges which include an allegation of prohibited 
discrimination shall be filed in accordance with the special rules set 
forth in Sec. 28.98.
    (4) Charges relating to continuing violations may be filed at any 
time.
* * * * *
    6. Paragraph (c)(3) of Sec. 28.17 is revised to read as follows:


Sec. 28.17   Internal appeals of Board employees.

* * * * *
    (c) * * *
    (3) In any event, whoever is so appointed shall possess all of the 
powers and authority possessed by the Board in employee appeals cases. 
The decision of the administrative law judge, administrative judge or 
arbitrator shall be a final decision of the Board, in the same manner 
as if rendered by the Board under Sec. 28.86(e). The procedure for 
judicial review of the decision shall be the same as that described in 
Sec. 28.90.
* * * * *
    7. Paragraph (b) of Sec. 28.18 is revised to read as follows:


Sec. 28.18   Filing a petition for review with the Board.

* * * * *
    (b) When to file. Petitions for review must be filed within 30 days 
after service upon the charging party of the Right to Appeal Letter 
from the General Counsel.
* * * * *
    8. Section 28.90 is amended by revising paragraph (a), removing 
paragraph (b) and redesignating paragraph (c) as paragraph (b) as 
follows:


Sec. 28.90   Board procedures; judicial review.

    (a) A final decision by the Board under 31 U.S.C. 753(a) (1), (2), 
(3), (6), (7) or (9) may be appealed to the United States Court of 
Appeals for the Federal Circuit within 30 days after the petitioner 
receives notice of the Board's decision.
* * * * *
    9. Paragraphs (b)(1), (b)(3) and (c)(1) of Sec. 28.98 are revised 
to read as follows:


Sec. 28.98   Individual charges in EEO cases.

* * * * *
    (b) * * *
    (1) Within 30 days from the receipt by the charging party of a GAO 
decision rejecting the complaint in whole or part;
    (2) * * *
    (3) Within 30 days from the receipt by the charging party of a 
final GAO decision concerning the complaint of discrimination.
    (c) * * *
    (1) File a charge directly with the Board's General Counsel within 
30 days of the effective date of the personnel action and raise the 
issue of discrimination in the course of the proceedings before the 
Board; or
* * * * *


Sec. 28.100   [Removed and Reserved]

    10. Section 28.100 is removed and reserved.
    11. Section 28.101 is revised to read as follows:


Sec. 28.101   Termination of Board proceedings when suit is filed in 
Federal District Court.

    Any proceeding before the Board shall be terminated when an 
employee or applicant who is alleging violation of Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, the 
Rehabilitation Act, 29 U.S.C. 791, or the Age Discrimination in 
Employment Act, 29 U.S.C. 633a, files suit in Federal District Court.
    12. Part 29 is added to read as follows:

PART 29--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
PROCEDURES APPLICABLE TO CLAIMS CONCERNING EMPLOYMENT PRACTICES AT 
THE ARCHITECT OF THE CAPITOL

Sec.
29.1  Purpose and scope.
29.2  Definitions.
29.3  Jurisdiction of the Board.
29.4  Computation of time.
29.5  Informal procedural advice.
29.6  Requirement for exhaustion of internal administrative remedies 
provided by the Architect of the Capitol.
29.7  Notice of appeal rights.
29.8  Filing a charge with the General Counsel.
29.9  General Counsel procedures.
29.10  Filing a petition for review with the Board.
29.11  Board procedures on petitions for review.
29.12  Proceedings brought by the General Counsel seeking corrective 
action, disciplinary action or a stay.
29.13  Applicability of this part to pending cases.

    Authority: 31 U.S.C. 753.


Sec. 29.1   Purpose and scope.

    (a) The purpose of this part is to implement the Board's authority 
under the Architect of the Capitol Human Resources Act, Public Law 103-
283, sec. 312, 108 Stat. 1443 (July 22, 1994). That act authorizes the 
Board to adjudicate certain claims of discrimination and retaliation 
brought by employees of the Architect of the Capitol. The rules 
contained in this part establish the procedures to be followed by:
    (1) Employees of the Architect of the Capitol in pursuing 
discrimination and retaliation claims before the Board;
    (2) The Architect of the Capitol in its dealings with the Board; 
and
    (3) The Board in carrying out its responsibilities under the 
Architect of the Capitol Human Resources Act.
    (b) In considering any procedural matter not specifically addressed 
by these rules, the Board will be guided, but not bound, by the Federal 
Rules of Civil Procedure.


Sec. 29.2  Definitions.

    In this part--
    Board means the General Accounting Office Personnel Appeals Board 
as established by 31 U.S.C. 751.
    Charge means an allegation, filed with the Board's General Counsel, 
of an unlawful discriminatory practice that is within the Board's 
jurisdiction under the Architect of the Capitol Human Resources Act, 
Public Law 103-283, sec. 312, 108 Stat. 1443 (July 22, 1994).
    Charging party means an individual filing a charge with the Board's 
General Counsel.
    Clerk of the Board means the individual appointed by the Board to 
receive papers filed with the Board, to maintain the Board's official 
files, and to advise parties and members of the public on the Board's 
procedures.
    Days mean calendar days.
    Employee of the Architect of the Capitol means any employee of or 
applicant for employment with the Architect of the Capitol, the Botanic 
Garden, or the Senate restaurants. It also includes, within 180 days 
after the termination of such employment, any individual who was 
formerly an employee of the Architect of the Capitol, the Botanic 
Garden, or the Senate restaurants, and whose claim of violation arises 
out of such employment. The term ``employee of the Architect of the 
Capitol'' does not include any individual who is a House of 
Representatives garage or parking lot attendant, including the 
superintendent.
    General Counsel means the General Counsel of the Board, as provided 
for under 31 U.S.C. 752.
    Petition for Review means any request filed with the Board for 
action to be taken on matters within the Board's jurisdiction pursuant 
to the Architect of the Capitol Human Resources Act, Public Law 103-
283, sec. 312, 108 Stat. 1443 (July 22, 1994).
    Petitioner means any individual filing a petition for review with 
the Board.
    Solicitor means the attorney appointed by the Board to provide 
advice and assistance to the Board in carrying out its adjudicatory 
functions and to advise parties and members of the public on the 
Board's procedures.


Sec. 29.3  Jurisdiction of the Board.

    (a) The Board has jurisdiction to hear and adjudicate claims 
brought by employees of the Architect of the Capitol alleging 
discrimination in employment based on:
    (1) Race, color, religion, sex, or national origin, within the 
meaning of section 717 of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e-16;
    (2) Age, within the meaning of section 15 of the Age Discrimination 
in Employment Act of 1967, as amended, 29 U.S.C. 633a; or
    (3) Handicap or disability, within the meaning of section 501 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and sections 
102 through 104 of the Americans with Disabilities Act of 1990, 42 
U.S.C. 12112-12114.
    (b) The Board has jurisdiction to hear and adjudicate claims 
brought by any individual alleging that he or she was subjected, by any 
employee of the Architect of the Capitol, to intimidation or reprisal 
because of the exercise of any right under the Architect of the Capitol 
Human Resources Act. This includes claims of retaliation against an 
individual because he or she:
    (1) Opposed practices made unlawful by the Architect of the Capitol 
Human Resources Act;
    (2) Filed a charge or petition for review with the Board;
    (3) Utilized the internal procedures provided by the Architect of 
the Capitol for the resolution of claims of discrimination or reprisal 
including, but not limited to, the filing of a request for formal or 
informal advice or the filing of a formal complaint; or
    (4) Participated in any proceedings before the Board or the 
Architect of the Capitol for the resolution of complaints of 
discrimination or reprisal.
    (c) The Board has jurisdiction over proceedings brought by the 
Board's General Counsel seeking:
    (1) Corrective action for alleged employment discrimination or 
retaliation (as described in paragraphs (a) and (b) of this section) by 
the Architect of the Capitol;
    (2) Disciplinary action against an employee of the Architect of the 
Capitol who has allegedly engaged in employment discrimination or 
retaliation as described in paragraphs (a) and (b) of this section;
    (3) A stay of a personnel action that has occurred or is about to 
occur and that is alleged to involve unlawful discrimination or 
retaliation of the kind described in paragraphs (a) and (b) of this 
section.


Sec. 29.4  Computation of time.

    For the purposes of this part, time will be computed in the manner 
described in 4 CFR 28.4.


Sec. 29.5  Informal procedural advice.

    Any party or member of the public may seek advice on all aspects of 
the Board's procedures by contacting the Board's Solicitor, the Board's 
General Counsel or the Clerk of the Board. Informal advice will be 
supplied within the limits of available time and staff.


Sec. 29.6  Requirement for exhaustion of internal administrative 
remedies provided by the Architect of the Capitol.

    (a) General. Under the provisions of the Architect of the Capitol 
Human Resources Act, any employee of the Architect of the Capitol who 
wishes to pursue a claim of discrimination or retaliation before the 
Board must first file an internal complaint with the Architect of the 
Capitol and exhaust the procedures for resolving such complaints. The 
procedures for filing such complaints are at present set forth in the 
Equal Employment Opportunity Procedures Manual issued by the Architect 
of the Capitol. The internal procedures for resolving complaints of 
discrimination or retaliation will be considered exhausted when either 
of the following occurs:
    (1) The employee receives a final decision by the Architect of the 
Capitol on his or her complaint of discrimination or retaliation; or
    (2) 120 days have passed after the filing of an internal complaint 
of discrimination or retaliation and the Architect of the Capitol has 
not issued a final decision on the complaint.
    (b) Class claims. An employee of the Architect of the Capitol who 
wishes to seek relief before the Board for a class of employees shall 
first file an internal complaint of discrimination or retaliation with 
the Architect of the Capitol and exhaust the internal remedies for 
resolution of such complaints as described in paragraph (a) of this 
section. It is not necessary that the employee raise class allegations 
in his or her internal complaint in order to be able to pursue the 
matter as a class action before the Board.
    (c) Filing a charge with the Board's General Counsel following 
exhaustion of administrative remedies. If, following the exhaustion of 
internal administrative remedies as described in paragraphs (a) or (b) 
of this section, an employee of the Architect of the Capitol wishes to 
pursue the matter before the Board, the employee may file a charge with 
the Board's General Counsel. The procedures for filing such a charge 
are set forth in Sec. 29.8.
    (d) Special rule applicable to charges filed with the General 
Counsel prior to March 1, 1995. A special rule applies to charges filed 
with the General Counsel prior to March 1, 1995. For these charges 
only, the General Counsel shall defer proceedings on the charge for no 
more than 60 days if the Architect of the Capitol certifies that such 
action is necessary to enable the Architect to issue a final decision 
on the charging party's internal complaint of discrimination or 
retaliation.


Sec. 29.7  Notice of appeal rights.

    (a) The Architect of the Capitol shall be responsible for ensuring 
that employees are routinely advised of their appeal rights to the 
Board. Any final decision on an internal complaint of discrimination 
shall include a notice of the complainant's right to pursue the matter 
before the Board including:
    (1) The time limits for appealing to the Board;
    (2) The address of the Board;
    (3) The employee's right to representation before the Board;
    (4) The availability of a hearing before the Board where factual 
issues are in dispute; and
    (5) The employee's right to a reasonable amount of official time 
for the preparation and presentation of his or her appeal.
    (b) A copy of the Board's regulations shall be attached to the 
notice required by paragraph (a) of this section. The notice shall also 
be accompanied by proof of service.


Sec. 29.8  Filing a charge with the General Counsel.

    (a) Who may file. Any employee of the Architect of the Capitol who 
claims that he or she has been subjected to unlawful discrimination or 
retaliation (as defined in Sec. 29.3) may file a charge with the 
Board's General Counsel. One or more employees may file a charge as 
representative of a class of employees of the Architect of the Capitol.
    (b) When to file. A charge by an employee of the Architect of the 
Capitol must be filed at either of the following times:
    (1) Within 30 days after the receipt of a final decision by the 
Architect of the Capitol on the employee's internal complaint of 
discrimination or retaliation; or
    (2) At any time after the passage of 120 days following the filing 
of an internal complaint of discrimination or retaliation, if the 
Architect of the Capitol has not yet issued a final decision on the 
internal complaint.
    (c) How to file. Charges may be filed with the General Counsel in 
person or by mail. Please note that the address to be used differs for 
the two kinds of filing.
    (1) Filing in person: A charge may be filed in person at the Office 
of the General Counsel, Suite 840, Union Center Plaza II, 820 First 
St., NE., Washington, DC.
    (2) Filing by mail: A charge may be filed by mail addressed to the 
General Counsel, Personnel Appeals Board, Suite 840, Union Center Plaza 
II, 441 G Street, NW., Washington, DC 20548. When filed by mail, the 
postmark shall be date of filing for all submissions to the General 
Counsel.
    (d) What to file. The charge should include the following 
information:
    (1) Name, address, and telephone number of the charging party. In 
the case of a class action, a clear description of the class of 
employees on whose behalf a charge is filed;
    (2) The names and titles of persons, if any, responsible for 
actions the charging party wishes to have the General Counsel review;
    (3) The actions complained about, including dates and reason given;
    (4) The charging party's reasons for believing that the actions 
taken constitute unlawful discrimination;
    (5) Remedies sought by the charging party;
    (6) Information concerning the charging party's exhaustion of 
administrative remedies before the Architect of the Capitol, including 
the date the internal complaint of discrimination was filed and, if 
applicable, the date on which the employee received a final decision 
from the Architect of the Capitol on his or her complaint of 
discrimination;
    (7) Name and address of the representative, if any, who will act 
for the charging party;
    (8) Signature of the charging party or the charging party's 
representative.
    (e) Attorney fees only issue raised. The General Counsel shall not 
represent the petitioner when the only issue raised is attorney fees. 
When attorney fees are the only issue raised in a charge to the General 
Counsel, the General Counsel shall transmit the charge to the Board for 
processing as a petition for review.


Sec. 29.9  General Counsel procedures.

    (a) The General Counsel shall serve on the Architect of the Capitol 
a copy of the charge, investigate the matters raised in the charge, 
refine the issues where appropriate, and attempt to settle all matters 
at issue.
    (b) The General Counsel's investigation may include gathering 
information from the Architect of the Capitol, and interviewing and 
taking statements from witnesses. Employees of the Architect of the 
Capitol shall be on official time during the time that they are 
responding to any requests from the General Counsel.
    (c) Following the investigation, the General Counsel shall provide 
the charging party with a Right to Appeal Letter. Accompanying this 
letter will be a statement of the General Counsel advising the charging 
party of the results of the investigation. This statement of the 
General Counsel is not subject to discovery and may not be introduced 
into evidence before the Board.
    (d) If, following the investigation, the General Counsel determines 
that there are not reasonable grounds to believe that the charging 
party has been subjected to unlawful discrimination or retaliation as 
described in Sec. 29.3, then the General Counsel shall not represent 
the charging party. If the General Counsel determines that there are 
reasonable grounds to believe that the charging party has been 
subjected to such discrimination or retaliation, then the General 
Counsel shall represent the charging party, unless the charging party 
elects not to be represented by the General Counsel. Any charging party 
may represent him- or herself or obtain other representation.
    (e) When the charging party elects to be represented by the General 
Counsel, the General Counsel is to direct the representation in the 
charging party's case. The charging party may also retain a private 
representative in such cases. However, the role of the private 
representative is limited to assisting the General Counsel as the 
General Counsel determines to be appropriate.
    (f) When the General Counsel is not participating in a case, the 
General Counsel may request permission to intervene with respect to any 
issue in which the General Counsel finds a significant public interest 
in the enforcement of the right to be free of unlawful discrimination 
and retaliation in employment.


Sec. 29.10  Filing a petition for review with the Board.

    (a) Who may file. A petition for review may be filed with the Board 
by any employee of the Architect of the Capitol who has received a 
Right to Appeal Letter from the General Counsel and who is claiming to 
have been subjected to unlawful discrimination or retaliation as 
described in Sec. 29.3.
    (b) When to file. Petitions for review must be filed within 30 days 
after service upon the charging party of the Right to Appeal Letter 
from the General Counsel.
    (c) How to file. Petitions for review may be filed in person or by 
mail. Please note that the address to be used differs for the two kinds 
of filing.
    (1) Filing in person: A petition may be filed in person at the 
office of the Board, Suite 830, Union Center Plaza II, 820 First 
Street, NE., Washington, DC.
    (2) Filing by mail: A petition may be filed by mail addressed to 
the Personnel Appeals Board, Suite 830, Union Center Plaza II, 441 G 
Street, NW., Washington, DC 20548. When filed by mail, the postmark 
shall be the date of filing for all submissions to the Board.
    (d) What to file. The petition for review shall include the 
following information:
    (1) The name, address, and telephone number of the petitioner. In 
the case of a class action, a clear description of the class of 
employees on whose behalf the petition is being filed;
    (2) The names and titles of persons, if any, responsible for the 
actions the petitioner wishes to have the Board review;
    (3) The actions being complained about including dates and reasons 
given;
    (4) Petitioner's reasons for believing that the actions constituted 
unlawful discrimination or retaliation;
    (5) Remedies sought by petitioner;
    (6) Information concerning petitioner's exhaustion of 
administrative remedies before the Architect of the Capitol, including 
the date that an internal complaint of discrimination or retaliation 
was filed and the date, if applicable, that the petitioner received a 
final decision from the Architect of the Capitol;
    (7) Name, address, and telephone number of the representative, if 
any, who will act for the petitioner;
    (8) Signature of the petitioner or the petitioner's representative.
    (e) Amendments to a petition for review. Failure to raise a claim 
in the petition for review shall not bar its submission later unless to 
do so would prejudice the rights of the other parties or unduly delay 
the proceedings.
    (f) Class Actions. One or more employees of the Architect of the 
Capitol may file a petition for review as representatives of a class of 
employees in any matter within the Board's jurisdiction as set forth in 
Sec. 29.3. In determining whether it is appropriate to treat an appeal 
as a class action, the Board will be guided, but not controlled, by the 
applicable provisions of the Federal Rules of Civil Procedure.


Sec. 29.11  Board procedures on petitions for review.

    In adjudicating petitions for review filed by employees of the 
Architect of the Capitol, the Board will generally follow the same 
procedures as it does for adjudicating petitions for review filed by 
General Accounting Office (GAO) employees under 4 CFR part 28, subpart 
B. The Board specifically adopts the regulations contained in 4 CFR 
28.19 through 28.90 as the procedures it will follow for petitions for 
review filed by Architect of the Capitol employees. The Architect of 
the Capitol will have the same obligations and responsibilities as are 
assigned to the GAO under those regulations. The regulations concerning 
ex parte communications, contained in 4 CFR part 28, subpart I, will 
also be applicable to all proceedings brought by or on behalf of 
employees of the Architect of the Capitol.


Sec. 29.12  Proceedings brought by the General Counsel seeking 
corrective action, disciplinary action or a stay.

    The regulations contained in 4 CFR part 28, subpart G, concerning 
proceedings brought by the General Counsel seeking corrective action, 
disciplinary action or a stay, are hereby adopted and made applicable 
to the Board's authority with respect to employment practices within 
the Architect of the Capitol with the following qualifications:
    (a) The authority of the General Counsel to bring proceedings 
seeking corrective action, disciplinary action, or a stay will be 
limited to matters involving allegations of unlawful discrimination or 
retaliation as described in Sec. 29.3.
    (b) Wherever the regulations in 4 CFR part 28, subpart G assign 
rights, responsibilities, or obligations to the GAO or its employees 
those same rights, responsibilities, or obligations will be assigned to 
the Architect of the Capitol or its employees, respectively.


Sec. 29.13  Applicability of this part to pending cases.

    (a) The regulations in this part apply to all claims brought by 
employees of the Architect of the Capitol alleging discrimination or 
retaliation (as described in Sec. 29.3) where:
    (1) The alleged discrimination or retaliation occurred on or after 
the July 22, 1994, effective date of the Architect of the Capitol Human 
Resources Act; or
    (2) The internal complaint of discrimination or retaliation was 
filed with the Architect of the Capitol on or after the July 22, 1994, 
effective date of the Architect of the Capitol Human Resources Act; or
    (3) The final decision of the Architect of the Capitol on an 
internal complaint of discrimination or retaliation was issued on or 
after the July 22, 1994, effective date of the Architect of the Capitol 
Human Resources Act.
    (b) The regulations in this part do not apply to any claim of 
discrimination or retaliation by an employee of the Architect of the 
Capitol which was pending before, or an appeal from, the Office of 
Senate Fair Employment Practices on the July 22, 1994, effective date 
of the Architect of the Capitol Human Resources Act. Any such claims 
shall continue to be processed pursuant to the procedures established 
in the Government Employee Rights Act of 1991, 2 U.S.C. 1201, et seq.
Nancy A. McBride,
Chair, Personnel Appeals Board, U. S. General Accounting Office.
[FR Doc. 94-28274 Filed 11-15-94; 8:45 am]
BILLING CODE 1610-01-P