[Federal Register Volume 68, Number 239 (Friday, December 12, 2003)]
[Rules and Regulations]
[Pages 69297-69305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30698]



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  Federal Register / Vol. 68, No. 239 / Friday, December 12, 2003 / 
Rules and Regulations  

[[Page 69297]]



GENERAL ACCOUNTING OFFICE

4 CFR Parts 27, 28 and 29


Personnel Appeals Board; Procedural Rules

AGENCY: General Accounting Office, Personnel Appeals Board.

ACTION: Final rule.

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

SUMMARY: The General Accounting Office Personnel Appeals Board (PAB) 
has authority with respect to employment practices within the General 
Accounting Office (GAO or agency), pursuant to the General Accounting 
Office Personnel Act of 1980. The PAB revises its procedural 
regulations. The changes are intended to clarify the meaning of some 
sections, to correct a few provisions affected by changes in law or 
agency structure, and to refine certain procedures.

DATES: Effective date: January 1, 2004.

FOR FURTHER INFORMATION CONTACT: Beth Don, Executive Director, or Susan 
Inzeo, Solicitor, 202-512-6137.

SUPPLEMENTARY INFORMATION: The General Accounting Office Personnel 
Appeals Board is authorized by Congress, pursuant to 31 U.S.C. 751-755, 
to hear and decide cases brought by GAO employees concerning various 
personnel matters including adverse or performance-based actions, 
claims of discrimination, alleged prohibited personnel practices, and 
labor-management relations. The Board also exercises oversight 
authority over equal employment opportunity at the agency, and has 
authority to consider, decide, and order corrective action in labor-
management representation matters. The Board's current procedural 
regulations applicable to GAO appear at 4 CFR parts 27 and 28. The 
Board is revising these regulations for the purpose of clarifying the 
meaning of some sections, correcting a few provisions affected by 
changes in law or agency structure, and streamlining certain 
procedures. The proposed changes were published for comment in the 
Federal Register at 68 FR 41742, July 15, 2003. The significant changes 
were summarized and explained in the supplementary information section 
of the published proposed rules. The Board will not repeat all that 
explanatory material here.

Comments on Proposed Revisions

    The only comments received during the sixty-day comment period were 
submitted by the Personnel Appeals Board General Counsel. The Board has 
fully considered these comments and responds as follows.
    The General Counsel raised concern regarding the changes to Sec.  
27.3 (The General Counsel). The Board's revision deletes the phrase 
``unless to do so would create a conflict of interest for the General 
Counsel'' following the summary statement of the General Counsel's 
statutory responsibility, at Board request, to ``investigate matters 
under the jurisdiction of the Board, and otherwise assist the Board in 
carrying out its functions.'' The revision more closely tracks the 
language of the statute and the deleted language is superfluous.
    The General Counsel also raised concern about Sec.  28.98(c) 
(Individual charges in EEO cases; Special rules for adverse and 
performance-based actions). Specifically, the comment raised the 
possibility of confusion concerning the provision's applicability to 
performance-related actions that do not rise to the level of removal. 
The Board considers that the provision is clear in reference to 
performance-based removals and actions that rise to the level of 
adverse actions. Moreover, paragraph (c) of Sec.  28.98 was not 
proposed for revision at this time.
    The General Counsel objected to the reference in the revised Sec.  
28.133 (Stay proceedings) that a stay may be requested by the Office of 
General Counsel rather than the General Counsel. The final version of 
this provision reflects the Board's acceptance of this comment.

List of Subjects in 4 CFR Parts 27, 28, and 29

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

    For the reasons stated in the preamble, the General Accounting 
Office Personnel Appeals Board amends 4 CFR chapter I, subchapter B, 
parts 27, 28, and 29 as follows:

PART 27--GENERAL ACCOUNTING OFFICE PERSONNEL APPEALS BOARD; 
ORGANIZATION

0
1. The authority citation for part 27 continues to read as follows:

    Authority: 31 U.S.C. 753.


Sec.  27.1  [Amended]

0
2. Amend Sec.  27.1 as follows:
0
a. Remove the words ``parts 28 and 29'' in the second sentence and add 
in their place ``part 28''.
0
b. In the third sentence, remove the word ``reconsideration'' and add 
in its place the word ``review''.

0
3. Amend Sec.  27.3 by revising the last sentence to read as follows:


Sec.  27.3  The General Counsel.

    * * * The General Counsel, at the request of the Board, shall 
investigate matters under the jurisdiction of the Board, and otherwise 
assist the Board in carrying out its functions.

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

0
4. The authority citation continues to read as follows:

    Authority: 31 U.S.C. 753.

Subpart A--Purpose, General Definitions, and Jurisdiction

0
5. Amend Sec.  28.1 by revising paragraphs (a), (b), and the first 
sentence of paragraph (c) 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 (GAOPA), 31 U.S.C. 751-755.
    (b) The purpose of the rules in this part is to establish the 
procedures to be followed by:
    (1) The GAO, in its dealings with the Board;

[[Page 69298]]

    (2) Employees of the GAO or applicants for employment with the GAO, 
or groups or organizations claiming to be affected adversely by the 
operations of the GAO personnel system;
    (3) 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, United States Code; and
    (4) The Board, in carrying out its responsibilities under 
Subchapters III and IV of chapter 7 of title 31, United States Code.
    (c) The scope of the Board's operations encompasses the 
investigation and adjudication of cases arising under 31 U.S.C. 753. * 
* *
* * * * *

0
6. Amend Sec.  28.2 by revising paragraph (a) introductory text, and 
paragraphs (b)(1) and (b)(3) to read as follows:


Sec.  28.2  Jurisdiction.

    (a) The Board has jurisdiction to hear and decide the following:
* * * * *
    (b) * * *
    (1) An officer or employee petition involving a removal, suspension 
for more than 14 days, reduction in grade or pay, or furlough of not 
more than 30 days;
    (2) * * *
    (3) The appropriateness of a unit of employees for collective 
bargaining;
* * * * *

0
7. Revise Sec.  28.3 to read as follows:


Sec.  28.3  General definitions.

    In this part--
    Administrative judge means any individual designated by the Board 
to preside over a hearing conducted on matters within its jurisdiction. 
An administrative judge may be a member of the Board, an employee of 
the Board, or any individual qualified by experience or training to 
conduct a hearing who is appointed to do so by the Board. When a panel 
of members or the full Board is hearing a case, the Chair shall 
designate one of the members to exercise the responsibilities of the 
administrative judge in the proceedings.
    Appeal means a request filed with the full Board for review of an 
initial decision.
    Board means the General Accounting Office Personnel Appeals Board 
as established by 31 U.S.C. 751 and explained in 4 CFR 27.1.
    Charge means any request filed with the PAB Office of General 
Counsel to investigate any matter within the jurisdiction of the Board, 
under the provisions of Subchapter IV of chapter 7 of Title 31, United 
States Code.
    Charging Party means any person filing a charge with the PAB Office 
of General Counsel for investigation.
    Clerk of the Board means the Clerk of the Personnel Appeals Board.
    Comptroller General means the Comptroller General of the United 
States.
    Days means calendar days.
    Director of EEO Oversight means the Personnel Appeals Board 
Director of EEO Oversight.
    Executive Director means the Executive Director of the Personnel 
Appeals Board.
    GAO means the General Accounting Office.
    General Counsel means the General Counsel of the Board, as provided 
for under 31 U.S.C. 752.
    Initial Decision means the adjudicatory statement of a case that is 
issued by an administrative judge who is a member of or appointed by 
the Board.
    Notice of Appeal means a pleading requesting that the full Board 
review an initial decision.
    Person means an employee, an applicant for employment, a former 
employee, a labor organization or the GAO.
    Petition means any request filed with the Board for action to be 
taken on matters within the jurisdiction of the Board, under the 
provisions of Subchapter IV of Chapter 7 of title 31, United States 
Code.
    Petitioner means any person filing a petition for Board 
consideration.
    Pleading means a document that initiates a cause of action before 
the Board, responds to a cause of action, amends a cause of action, 
responds to an amended cause of action, requests reconsideration of a 
decision, responds to such a request, requests appellate review by the 
full Board or responds to such a request.
    Request for Reconsideration means a request, filed with the 
administrative judge who rendered the initial decision, to reconsider 
that decision in whole or part.
    Solicitor means the attorney appointed by the Board to provide 
advice and assistance to the Board in carrying out its adjudicatory 
functions and to otherwise provide assistance as directed by the Board.
    Workforce Restructuring Action (WRA) means the release of an 
employee from a job group by separation, demotion, reassignment 
requiring displacement, or furlough for more than 30 days when the 
cause of action is lack of work, shortage of funds, insufficient 
personnel ceiling, reorganization or realignment, an individual's 
exercise of reemployment or reinstatement rights, correction of skills 
imbalances, or reduction of high-grade supervisory, or managerial 
positions.

0
8. Amend Sec.  28.4 by adding paragraph (d) to read as follows:


Sec.  28.4  Computation of time.

* * * * *
    (d) No written submission shall be accepted by the Clerk of the 
Board after 4 p.m., Monday through Friday.

Subpart B--Procedures

0
9. Amend Sec.  28.8 by revising paragraph (a) to read as follows:


Sec.  28.8  Informal procedural advice.

    (a) Persons may seek informal advice on all aspects of the Board's 
procedures by contacting the Board's Executive Director, Director of 
EEO Oversight, Solicitor, General Counsel or the Clerk of the Board.
* * * * *

0
10. Amend Sec.  28.10 by revising the heading and the first sentence of 
paragraph (a) and paragraph (b)(1) to read as follows:


Sec.  28.10  Notice of petition rights.

    (a) The GAO shall be responsible for ensuring that employees are 
routinely advised of their rights to petition the Board and that 
employees who are the object of an adverse or performance-based action 
are, at the time of the action, adequately advised of their rights to 
petition the Board. * * *
    (b) * * *
    (1) Time limits for filing a petition with the Board and the 
address of the Board;
* * * * *

0
11. Amend Sec.  28.11 by revising the heading and paragraphs (c), 
(d)(2) and the last sentence of paragraph (e) to read as follows:


Sec.  28.11  Filing a charge with the Office of General Counsel.

* * * * *
    (c) How to file. Charges may be filed with the Office of General 
Counsel by personal delivery (including commercial carrier) or by mail. 
The address to be used differs for the two kinds of filing.
    (1) A charge may be filed by personal delivery at the Office of 
General Counsel, Personnel Appeals Board, GAO, Suite 580, Union Center 
Plaza II, 820 First Street, NE., Washington, DC 20002.
    (2) A charge may be filed by mail addressed to the Office of 
General

[[Page 69299]]

Counsel, Personnel Appeals Board, Suite 580, Union Center Plaza II, 441 
G Street, NW., Washington, DC 20548 or Office of General Counsel, 
Personnel Appeals Board, GAO, Suite 580, Union Center Plaza II, 820 
First Street, NE., Washington, DC 20002. When filed by mail, the 
postmark shall be the date of filing for all submissions to the Office 
of General Counsel.
    (d) * * *
    (2) The names and titles of persons, if any, responsible for 
actions the charging party wishes to have the Office of General Counsel 
investigate;
* * * * *
    (e) * * * When attorney fees are the only issue raised in a charge 
to the Office of General Counsel, the General Counsel shall transmit 
the charge to the Board for processing under Sec. Sec.  28.18 through 
28.88 as a petition.

0
12. Amend Sec.  28.12 as follows:
0
a. Revise paragraphs (c), (d), and (g).
0
b. Add new paragraphs (h) and (i).
    The additions and revisions read as follows:


Sec.  28.12  General Counsel procedures.

* * * * *
    (c) Following the investigation, the Office of General Counsel 
shall provide the charging party with a Right to Petition 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)(1) If the General Counsel determines that there are reasonable 
grounds to believe that the charging party's rights under subchapters 
III and IV of chapter 7 of title 31, United States Code, have been 
violated, then the General Counsel shall represent the charging party 
unless the charging party elects not to be represented by the Office of 
General Counsel.
    (2) If, following the investigation, the General Counsel determines 
that there are not reasonable grounds to believe that the charging 
party's rights under subchapters III and IV of chapter 7 of title 31, 
United States Code, have been violated, then the General Counsel shall 
not represent the charging party. The charging party may nonetheless 
file a petition with the Board in accordance with Sec.  28.18.
    (3) Any charging party may represent him- or herself or obtain 
other representation.
* * * * *
    (g) If 180 days have elapsed since the filing of the charge, and 
the Office of General Counsel has not completed the investigation and 
issued a Right to Petition Letter, the charging party may bring his or 
her case directly to the Board by filing a petition in accordance with 
Sec.  28.18. If a charging party exercises this option to file a 
petition with the Board without waiting for the completion of the 
investigation, the Office of General Counsel shall not represent the 
charging party in proceedings before the Board. The charging party may 
represent him- or herself or obtain other representation. The Office of 
General Counsel shall close the investigation of the charge upon being 
notified by the Clerk of the Board that the charging party has filed a 
petition with the Board under this paragraph (g).
    (h) Office of General Counsel settlement: Where the General Counsel 
under paragraph (a) of this section transmits a settlement which has 
been agreed to by the parties, the settlement agreement shall be the 
final disposition of the case.
    (i) Confidentiality: (1) It is the Office of General Counsel's 
policy to protect against the disclosure of documents obtained during 
the investigation, as a means of ensuring that Office's continuing 
ability to obtain all relevant information. However, if the Office of 
General Counsel files a petition with the Personnel Appeals Board on 
behalf of a charging party pursuant to this section, that Office may 
disclose the identity of witnesses and a synopsis of their expected 
testimony. Documents to be offered into evidence at the hearing may be 
disclosed as required by the prehearing disclosure requirements of 
Sec.  28.56.
    (2) Unless so ordered by a court of competent jurisdiction, no 
employee of the Personnel Appeals Board Office of General Counsel shall 
produce or disclose any information or records acquired as part of the 
performance of his/her official duties or because of his/her official 
status. Before producing or disclosing such information or records 
pursuant to court order, an employee shall notify the General Counsel.

0
13. Revise Sec.  28.13 to read as follows:


Sec.  28.13  Special procedure for Workforce Restructuring Action.

    In the event of a Workforce Restructuring Action (WRA) resulting in 
an individual's separation from employment, an aggrieved employee may 
choose to file a petition directly with the Personnel Appeals Board, 
without first filing the charge with the PAB's Office of General 
Counsel pursuant to Sec.  28.11. Pursuant to Sec.  28.98, individuals 
raising discrimination issues in connection with a WRA action need not 
file a complaint with GAO's Office of Opportunity and Inclusiveness 
before pursuing a WRA challenge alleging discrimination, either by 
filing directly with the PAB or by filing a charge with the Board's 
Office of General Counsel.

Hearing Procedures for Cases Before the Board--General


Sec.  28.15  [Amended]

0
14. Amend Sec.  28.15 by removing the word ``appeals'' and adding in 
its place the word ``petitions'' in the first sentence.

0
15. Amend Sec.  28.17 by revising the heading, paragraphs (a)(2) and 
(a)(3), paragraphs (b)(1) and (b)(2) and paragraphs (c)(1), (c)(2), and 
(c)(3) to read as follows:


Sec.  28.17  Internal petitions of Board employees.

    (a) * * *
    (2) When an employee of the Board believes that he or she has been 
denied his or her right to equal employment opportunity, the employee 
shall bring this matter to the attention of the Board's Executive 
Director or General Counsel. If the matter cannot be resolved within 10 
days, the Executive Director shall notify the employee of his or her 
right to file an EEO complaint. The employee may consult with either 
the Board's Solicitor or General Counsel and seek advice with regard to 
procedural matters concerning the filing of an EEO charge. The employee 
shall have 20 days from service of this notice to file an EEO charge 
with the PAB Office of General Counsel. Upon receipt of an EEO charge, 
the General Counsel shall arrange with the Executive Director for 
processing in accordance with paragraph (b) of this section. If the EEO 
allegations involve challenge to a WRA-based separation, the employee 
may choose to expedite the procedures by filing a petition directly 
with the Board.
    (3) When an employee of the Board wishes to raise any other issue 
that would be subject to the Board's jurisdiction, the employee shall 
file a charge with the General Counsel and the General Counsel shall 
arrange with the Executive Director for processing in accordance with 
paragraph (b) of this section. If the challenged action is a WRA-based 
separation from employment, the employee may choose to expedite the 
procedures by filing a petition directly with the Board.
    (b) * * *
    (1) If agreed to by the Office of Special Counsel or the EEOC, as 
appropriate,

[[Page 69300]]

that body will appoint and detail a person from among its attorneys to 
perform the functions of the General Counsel.
    (2) If the Special Counsel or the EEOC does not agree to such a 
procedure, an appointment of an attorney will be sought from the 
Federal Mediation and Conciliation Service (FMCS).
    (3) * * *
    (c) * * *
    (1) If agreed to by the MSPB or the EEOC, as appropriate, that body 
will appoint and detail one of its administrative law judges (ALJ) or 
administrative judges (AJ) to perform the Board's adjudicative 
functions.
    (2) If neither the MSPB nor the EEOC agrees to such a procedure, an 
appointment of an arbitrator will be sought from the FMCS.
    (3) In any event, whoever is so appointed shall possess all of the 
powers and authority possessed by the Board in employee cases. The 
decision of the administrative law judge, administrative judge or 
arbitrator shall be a final decision of the Board. The procedure for 
judicial review of the decision shall be the same as that described in 
Sec.  28.90.
* * * * *

0
16. Amend Sec.  28.18 by revising the heading and paragraphs (a), (b), 
(c), (d) introductory text, (e) and (f) to read as follows:


Sec.  28.18  Filing a petition with the Board.

    (a) Who may file. Any person who is claiming to be affected 
adversely by GAO action or inaction that is within the Board's 
jurisdiction under subchapter IV of chapter 7 of title 31, United 
States Code, or who is alleging that GAO or a labor organization 
engaged or is engaging in an unfair labor practice, may file a petition 
if one of the following is met:
    (1) The person has received a Right to Petition Letter from the 
Board's Office of General Counsel; or
    (2) At least 180 days have elapsed from the filing of the charge 
with the Board's Office of General Counsel and that Office has not 
issued a Right to Petition Letter; or
    (3) The person was separated due to a Workforce Restructuring 
Action and chooses to file a petition directly with the Board, without 
first filing with the Board's Office of General Counsel, as provided in 
Sec.  28.13.
    (b) When to file. (1) Petitions filed pursuant to paragraph (a)(1) 
of this section must be filed within 30 days after receipt by the 
charging party of the Right to Petition Letter from the Board's Office 
of General Counsel.
    (2) Petitions filed pursuant to paragraph (a)(2) of this section 
may be filed at any time after 180 days have elapsed from the filing of 
the charge with the Board's Office of General Counsel, provided that 
that Office has not issued a Right to Petition Letter concerning the 
charge.
    (3) Petitions filed pursuant to paragraph (a)(3) of this section 
must be filed within 30 days after the effective date of the separation 
due to a Workforce Restructuring Action.
    (c) How to file. (1) A petition may be filed by hand delivery at 
the office of the Board, Suite 560, Union Center Plaza II, 820 First 
Street NE., Washington, DC 20002. It must be received by 4 p.m., Monday 
through Friday, on the date that it is filed.
    (2) A petition may be filed by mail addressed to the Personnel 
Appeals Board, GAO, Suite 560, Union Center Plaza II, 441 G Street NW., 
Washington, DC 20548 or Personnel Appeals Board, GAO, Suite 560, Union 
Center Plaza II, 820 First Street NE., Washington, DC 20002. When filed 
by mail, the postmark shall be the date of filing for all submissions 
to the Board.
    (d) What to file. The petition shall include the following 
information:
* * * * *
    (e) Failure to raise a claim or defense. Failure to raise a claim 
or defense in the petition shall not bar its submission later unless to 
do so would prejudice the rights of the other parties or unduly delay 
the proceedings.
    (f) Non-EEO class actions. One or more persons may file a petition 
as representatives of a class in any matter within the Board's 
jurisdiction. For the purpose of determining whether it is appropriate 
to treat a petition as a class action, the administrative judge will be 
guided, but not controlled, by the applicable provisions of the Federal 
Rules of Civil Procedure. See Sec.  28.97 for EEO class actions.

0
17. Revise Sec.  28.19(a) to read as follows:


Sec.  28.19  Content of response by charged party.

    (a) Within 20 days after service of a copy of a petition, the GAO 
or other charged party shall file a response containing at least the 
following:
    (1) A statement of the position of the charged party on each 
allegation set forth therein, including admissions, denials or 
explanations. If the petition contains numbered paragraphs, the 
responses should reference the paragraph numbers. If the petition does 
not contain numbered paragraphs, the responses should quote or 
otherwise clearly identify the specific allegations of the petition.
    (2) Any other defenses to the petition.
    (3) Designation of, and signature by, the representative authorized 
to act for the charged party in the matter.
* * * * *

0
18. Amend Sec.  28.20 by revising the first and last sentences of 
paragraph (b)(1) and the first two sentences of paragraph (b)(2) to 
read as follows:


Sec.  28.20  Number of pleadings, service and response.

* * * * *
    (b) Service. (1) The Board will serve copies of a petition upon the 
parties to the proceeding by mail and/or by facsimile. * * * The Board 
will not serve copies of any pleadings, motions, or other submissions 
by the parties after the initial petition.
    (2) The parties shall serve on each other one copy of all pleadings 
other than the initial petition. Service shall be made by mailing, by 
facsimile or by delivering personally a copy of the pleading to each 
party on the service list previously provided by the Board. * * *
* * * * *
0
19. Revise Sec.  28.21 to read as follows:


Sec.  28.21  Amendments to petitions and motions practice.

    (a) Amendments to petitions. The Board, at its discretion, may 
allow amendments to a petition as long as all persons who are parties 
to the proceeding have adequate notice to prepare for the new 
allegations and if to do so would not prejudice the rights of the other 
parties or unduly delay the proceedings.
    (b) Motions practice. (1) When an action is before an 
administrative judge, motions of the parties shall be filed with the 
Clerk of the Board and shall be in writing except for oral motions made 
during the hearing. An original and 3 copies of written motions shall 
be filed with the Clerk of the Board. An original and 3 copies of 
responses in opposition to written motions must be filed with the Clerk 
of the Board within 20 days of service of the motion unless the 
administrative judge requires a shorter time.
    (2) When an action is before the full Board, an original and 7 
copies of any motion shall be filed with the Clerk of the Board. An 
original and 7 copies of any responses in opposition to motions must be 
filed with the Clerk of the Board within 20 days of service of the 
motion unless the Board requires a shorter time.
    (3) A party filing a motion for extension of time, a motion for 
postponement of a hearing, or any other procedural motion must first 
contact the

[[Page 69301]]

other party to determine whether there is any objection to the motion 
and must state in the motion whether the other party has any objection.
    (4) No motions, responses or other submissions will be accepted for 
filing by the Clerk of the Board after 4 p.m., Monday through Friday. 
All written submissions shall be served simultaneously upon the other 
parties to the proceeding. A certificate of service must be attached 
showing service by mail, facsimile or personal delivery of the 
submission to the other parties. Further submissions by either party 
may be filed only with the approval of the administrative judge or full 
Board.
    (5) All written motions and responses thereto shall include a 
proposed order, where applicable.
    (6) Motions for extension of time will be granted only upon a 
showing of good cause.
    (7) Oral argument. The administrative judge may allow oral argument 
on the motion at his or her discretion.
    (c) Motions for summary judgment. (1) Either party may move for 
summary judgment by filing a written motion no later than 14 days prior 
to the commencement of the hearing or as otherwise ordered by the 
administrative judge.
    (2) Motions for summary judgment must be accompanied by a statement 
of material facts for which there is no genuine dispute and a statement 
of reasons in support of the motion. The motion may be supported by 
documents, affidavits, or other evidence.
    (3) Summary judgment will be granted if the pleadings, depositions, 
answers to interrogatories, admissions, affidavits, if any, and other 
documents show that there is no genuine issue as to any material fact 
and that the moving party is entitled to judgment as a matter of law.
    (4) A party moving for summary judgment must make a showing 
sufficient to establish the existence of each element essential to that 
party's cause of action and for which that party bears the burden of 
proof.
    (5) When a party moves for summary judgment, the Board will 
evaluate the motion on its own merits, resolving all reasonable 
inferences against the moving party.


Sec.  28.22  [Amended]

0
20. Amend Sec.  28.22 by removing the words ``File recommended or'' and 
adding the word ``Issue'' in their place in paragraph (b)(12).

0
21. Amend Sec.  28.24 as follows:
0
a. Revise paragraph (a) introductory text and paragraph (a)(2).
0
b. In paragraph (b), remove the words ``an appeal'' and add the words 
``a petition'' in their place.
    The revision reads as follows:


Sec.  28.24  Sanctions.

* * * * *
    (a) Failure to comply with an order or subpoena. When a party fails 
to comply with an order or subpoena (including an order for the taking 
of a deposition, for the production of evidence within the party's 
control, for an admission, or for production of witnesses), the 
administrative judge may:
    (1) * * *
    (2) Prohibit the party failing to comply with such order or 
subpoena from introducing, or otherwise relying upon, evidence relating 
to the information sought.
* * * * *

Parties, Practitioners and Witnesses

0
22. Revise the first two sentences of paragraph (a) of Sec.  28.25 to 
read as follows:


Sec.  28.25  Representation.

    (a) All parties to a petition may be represented in any matter 
relating to the petition. The parties shall designate their 
representatives, if any, in the petition or responsive pleading. * * *
* * * * *

0
23. Amend Sec.  28.27 by revising the first two sentences of paragraph 
(c) to read as follows:


Sec.  28.27  Intervenors.

* * * * *
    (c) A motion for permission to intervene will be granted where a 
determination is made by the administrative judge or the Board, where 
the case is being heard en banc, that the requestor will be affected 
directly by the outcome of the proceeding. Denial of a motion for 
intervention may be appealed to the full Board. * * *
* * * * *


Sec.  28.28  [Amended]

0
24. Amend Sec.  28.28 by removing the word ``appeal'' and adding the 
word ``petition'' in its place in paragraph (a).

0
25. Amend Sec.  28.29 by revising paragraph (a)(2) to read as follows:


Sec.  28.29  Consolidation or joinder.

    (a) * * *
    (2) Joinder may occur where one person has two or more petitions 
pending and they are united for consideration. For example, a single 
petitioner who has one petition pending challenging a 30-day suspension 
and another petition pending challenging a subsequent dismissal might 
have the cases joined.
* * * * *

Discovery


Sec.  28.41  [Amended]

0
26. Amend Sec.  28.41(b) by removing the word ``appeal'' in the first 
sentence and add in its place the word ``review''.

0
27. Amend Sec.  28.42 by revising the first sentence of paragraph 
(d)(5) to read as follows:


Sec.  28.42  Discovery procedures and protective orders.

* * * * *
    (d) * * *
    (5) Discovery shall be completed by the time designated by the 
administrative judge, but no later than 65 days after the service of 
the notice of filing of a petition. * * *

Subpoenas

0
28. Amend Sec.  28.46 as follows:
0
a. Revise paragraph (b).
0
b. Remove paragraph (d).
    The revision read as follows:


Sec.  28.46  Motion for subpoena.

* * * * *
    (b) Motion. (1) A motion for the issuance of a subpoena requiring 
the attendance and testimony of witnesses or the production of 
documents or other evidence under Sec.  28.46(a) shall be submitted to 
the administrative judge at least 15 days in advance of the date 
scheduled for the commencement of the hearing.
    (2) If the subpoena is sought as part of the discovery process, the 
motion shall be submitted to the administrative judge at least 15 days 
in advance of the date set for the attendance of the witness at a 
deposition or the production of documents.
* * * * *

Hearings

0
29. Amend Sec.  28.56 by adding a second sentence in paragraph (f) to 
read as follows:


Sec.  28.56  Hearing procedures, conduct and copies of exhibits.

* * * * *
    (f) * * * Multiple exhibits shall be indexed and tabbed.
* * * * *

0
30. Amend Sec.  28.57 by revising paragraph (b) to read as follows:


Sec.  28.57  Public hearings.

* * * * *
    (b) At the hearing, the petitioner, the petitioner's 
representative, GAO's legal representative, and a GAO management

[[Page 69302]]

representative, who is not expected to testify, each have a right to be 
present. The Agency management representative shall be designated prior 
to the hearing.

0
31. Amend Sec.  28.61 as follows:
0
a. In paragraph (b) introductory text, remove the word ``may'' and add 
in its place the word ``shall''.
0
b. Revise the definition of harmful error in paragraph (d).
    The revision reads as follows:


Sec.  28.61  Burden and degree of proof.

* * * * *
    (d) * * *
    Harmful error means error by the agency in the application of its 
procedures which, in the absence or cure of the error, might have 
caused the agency to reach a conclusion different from the one reached.
* * * * *

0
32. Redesignate Sec.  28.62 as Sec.  28.63, and add a new Sec.  28.62 
to read as follows:


Sec.  28.62  Decision on the record.

    (a) The parties may agree to forego a hearing and request that the 
matter be decided by the presiding administrative judge based upon the 
record submitted.
    (b) If the parties agree to forego a hearing under this subpart, 
the record will close on the date that the administrative judge sets as 
the final date for the receipt or filing of submissions of the parties. 
Once the record closes, no additional evidence or argument will be 
accepted unless the party seeking to submit it demonstrates that the 
evidence was not available before the record closed.
    (c) In matters submitted for decision on the record under this 
section, the parties bear the same burdens of proof set forth in Sec.  
28.61.
    (d) A decision obtained under this section is a decision on the 
merits of the case and is appealable as if the matter had been 
adjudicated in an evidentiary hearing.

Evidence

0
33. Revise Sec.  28.66 to read as follows:


Sec.  28.66  Admissibility.

    Evidence or testimony may be excluded from consideration by the 
administrative judge if it is irrelevant, immaterial, unduly 
repetitious or protected by privilege. The administrative judge is not 
bound by formal evidentiary rules but may rely on the Federal Rules of 
Evidence for guidance.

0
34. Revise Sec.  28.69 to read as follows:


Sec.  28.69  Judicial notice.

    The administrative judge on his or her own motion or on motion of a 
party, may take judicial notice of a fact which is not subject to 
reasonable dispute because it is either: a matter of common knowledge; 
or a matter capable of accurate and ready determination by resort to 
sources whose accuracy cannot reasonably be questioned. Judicial notice 
taken of any fact satisfies a party's burden of proving the fact 
noticed.

Board Decisions, Attorney's Fees and Judicial Review


Sec.  28.86  [Removed and reserved]

0
35. Remove and reserve Sec.  28.86.

0
36. Amend Sec.  28.87 by revising paragraphs (a) and (b) and paragraph 
(g) introductory text, to read as follows:


Sec.  28.87  Board procedures; initial decisions.

    (a) When a case is heard in the first instance by a single Board 
member, a panel of members, or a non-member appointed by the Board, an 
initial decision shall be issued by that member, panel or individual 
and served upon the parties.
    (b) An aggrieved party may seek reconsideration of or may appeal 
the initial decision in the following manner:
    (1) Within 10 days of the service of the initial decision, such a 
party may file and serve a request for reconsideration with the 
administrative judge or panel rendering that decision. Filing of the 
request for reconsideration shall toll the commencement of the 15 day 
period for filing a notice of appeal with the full Board, pending 
disposition of the request for reconsideration by the administrative 
judge or panel. The administrative judge or panel shall determine if a 
response is required, and if so, will fix by order the time for the 
filing of the response. A motion for reconsideration will not be 
granted without providing an opportunity for response.
    (2) Within 15 days of the service of the initial decision, such a 
party may appeal to the full Board by filing and serving a notice of 
appeal to the Board.
* * * * *
    (g) In conducting its examination of the initial decision, the 
Board may substitute its own findings of fact and conclusions of law, 
but the Board generally will defer to demeanor-based credibility 
determinations made in the initial decision. In determining whether 
some action other than affirmance of the initial decision is required, 
the Board will also consider whether:
* * * * *

0
37. Amend Sec.  28.88 as follows:
0
a. Revise paragraphs (a), (b), and (d).
0
b. Add paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  28.88  Board procedures; enforcement.

    (a) All decisions and orders of the Board shall be complied with 
promptly. Whenever a Board decision or order requires a person or party 
to take any action, the Board may require such person or party to 
provide the Board and all parties with a compliance report.
    (b) When the Board does not receive a report of compliance in 
accordance with paragraph (a) of this section, the Solicitor shall make 
inquiries to determine the status of the compliance report and shall 
report upon the results of the inquiry to the Board.
* * * * *
    (d) Upon receipt of a non-compliance report from its Solicitor or 
of a petition for enforcement of a final decision, the Board may issue 
a notice to any person to show cause why there was non-compliance. 
Apart from remedies available to the parties, the Board may seek 
judicial enforcement of a decision or order issued pursuant to a show 
cause proceeding.
    (e) If the parties enter into a settlement agreement that has been 
reviewed and approved by the administrative judge, the Board retains 
jurisdiction to enforce the terms of such settlement agreement.
    (f) Any party to a settlement agreement over which the Board 
retains jurisdiction may petition the Board for enforcement of the 
terms of such settlement agreement.

0
38. Revise Sec.  28.89 to read as follows:


Sec.  28.89  Attorney's fees and costs.

    Within 20 days after service of a final decision by the Board, or 
within 20 days after the date on which an initial decision becomes 
final pursuant to Sec.  28.87(d), the petitioner, if he or she is the 
prevailing party, may submit a request for the award of reasonable 
attorney's fees and costs. GAO may file a response within 20 days after 
service of the request. Motions for attorney's fees shall be filed in 
accordance with Sec.  28.21 of these regulations. Rulings on attorney's 
fees and costs shall be consistent with the standards set forth at 5 
U.S.C. 7701(g). The decision of the administrative judge concerning 
attorney's fees and costs shall be subject to review and shall become 
final according to the provisions of Sec.  28.87.

Subpart D--Special Procedures; Equal Employment Opportunity (EEO) 
Cases

0
39. Amend Sec.  28.95 by revising paragraphs (a) and (d) to read as 
follows:

[[Page 69303]]

Sec.  28.95  Purpose and scope.

* * * * *
    (a) Section 717 of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e-16), prohibiting discrimination based on race, color, 
religion, sex or national origin;
* * * * *
    (d) Title I of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12101 et seq.) and sections 501 and 505 of the Rehabilitation 
Act of 1973 (29 U.S.C. 791, 794a) prohibiting discrimination on the 
basis of disability; or
* * * * *

0
40. Amend Sec.  28.97 by revising paragraph (b) introductory text, the 
first sentence of paragraph (c), paragraphs (d), and (e) to read as 
follows:


Sec.  28.97  Class actions in EEO cases.

* * * * *
    (b) An appeal from GAO's disposition of any EEO class complaint may 
be submitted to the Board at the following times:
* * * * *
    (c) In EEO class actions, employees shall not file charges with the 
Board's Office of General Counsel and that Office shall not undertake 
an independent investigation of a class complaint that has been filed 
with GAO. * * *
    (d) An appeal of a GAO disposition of an EEO class complaint shall 
be decided by the Board based upon a review of the administrative 
record, including any recommended findings and conclusions, developed 
in the GAO class complaint process. In such cases, the Board will 
employ the same standards of review set forth in Sec.  28.87.
    (e) The parties to an EEO class complaint do not have a right to a 
de novo evidentiary hearing before the Board. However, either the class 
representative or GAO may file a motion requesting an evidentiary 
hearing, rather than having the Board decide the case upon review of 
the administrative record already developed by GAO. The Board, in its 
discretion, may grant such motion or, upon its own review of the 
administrative record, may direct that a new hearing be conducted. If 
the Board orders a new evidentiary hearing, the class representative 
shall file a petition on behalf of the class and the case shall be 
adjudicated before an administrative judge of this Board pursuant to 
the procedures applicable to an individual EEO complaint processed 
under Sec.  28.98 of these regulations. For the purpose of determining 
whether it is appropriate to treat a petition as a class action, the 
administrative judge will be guided, but not controlled, by the 
applicable provisions of the Federal Rules of Civil Procedure.

0
41. Amend Sec.  28.98 by revising paragraphs (d) and (e)(1) to read as 
follows:


Sec.  28.98  Individual charges in EEO cases.

* * * * *
    (d) Special rules for WRA based actions. An individual alleging 
discrimination issues in connection with a WRA-based separation may 
follow the procedures outlined above in paragraph (c) of this section 
for adverse and performance based actions, or may choose instead a 
third option. In accordance with the provisions of Sec.  28.13, such an 
individual may challenge that action by filing directly with the PAB, 
thus bypassing both the Office of Opportunity and Inclusiveness and the 
Board's Office of General Counsel.
    (e)(1) The charging party shall file the charge with the Board's 
Office of General Counsel in accordance with Sec.  28.11. That Office 
shall investigate the charge in accordance with Sec.  28.12.
* * * * *


Sec.  28.99  [Amended]

0
42. Amend Sec.  28.99 as follows:
0
a. Remove ``for review'' in the heading.
0
b. In paragraph (b)(1), add ``Agency'' after ``Provision for.''
0
43. Revise Sec.  28.101 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, Title I of 
the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., 
the Age Discrimination in Employment Act, 29 U.S.C. 633a, or the 
Rehabilitation Act, 29 U.S.C. 791, files suit in Federal District Court 
on the same cause of action pending before the Personnel Appeals Board.

0
44. Amend Sec.  28.112 by revising paragraph (a)(3) to read as follows:


Sec.  28.112  Who may file petitions.

    (a) * * *
    (3) The GAO if it has a good faith reason to doubt that a majority 
of employees in the bargaining unit wish to be represented by the labor 
organization which is currently the exclusive representative of those 
employees;
* * * * *

0
45. Amend Sec.  28.113 by revising paragraph (a)(7), the second 
sentence of paragraph (b), and the first sentence of paragraph (c) to 
read as follows:


Sec.  28.113  Contents of representation petitions.

    (a) * * *
    (7) Membership cards, dues records, or signed statements by 
employees indicating their desire to support the petition of the labor 
organization, or similar evidence acceptable to the Board, showing that 
at least 30 percent of the employees in the proposed unit support the 
representation petition.
    (b) * * * Additionally, a petition under Sec.  28.112(a)(2) shall 
include evidence satisfactory to the Board that at least 30 percent of 
the employees in the unit support the petition to determine whether the 
employees wish to continue to be represented by the labor organization 
currently having bargaining rights.
    (c) The contents of petitions filed under Sec.  28.112(a)(3) shall 
conform to those provided in petitions under paragraph (a) of this 
section except that the information required by paragraphs (a)(4) and 
(a)(7) of this section need not be supplied. * * *
* * * * *

Subpart F--Special Procedures; Unfair Labor Practices


Sec.  28.121  [Amended]

0
46. Amend Sec.  28.121(c) as follows:
0
a. Remove ``for review'' after the word ``petition''.
0
b. Remove the term ``14b'' and add in its place the term ``15e''.
0
c. Add the words ``Office of'' before the phrase ``General Counsel''.


Sec.  28.122  [Amended]

0
47. Amend Sec.  28.122 as follows:
0
a. Remove ``;compelling need'' from the heading.
0
b. In paragraph (e) remove ``Sec. Sec.  28.86-28.87'' and in its place 
add ``Sec.  28.87''.

0
48. Amend Sec.  28.123 as follows:
0
a. Revise paragraph (a)(4).
0
b. In paragraph (c), remove the words ``Labor/Management Relations'' 
and add the words ``Employment Standards'' in their place.
    The revision reads as follows:


Sec.  28.123  Standards of conduct for labor organizations.

    (a) * * *
    (4) Fiscal integrity.
* * * * *

Subpart G--Corrective Action, Disciplinary and Stay Proceedings


Sec.  28.131  [Amended]

0
49. Amend paragraph (d) of Sec.  28.131 by removing the words ``for 
review'' after

[[Page 69304]]

``petition'' in both sentences, and adding the words ``Board's Office 
of'' before the phrase ``General Counsel''.


Sec.  28.132  [Amended]

0
50. Amend Sec.  28.132 by removing the first sentence in paragraph (e).

0
51. Amend Sec.  28.133 by revising paragraphs (a), (b), (c), (d), and 
(e) to read as follows:


Sec.  28.133  Stay proceedings.

    (a) Prior to the effective date of any proposed personnel action, 
the Board's General Counsel may request, ex parte, the issuance of an 
initial stay of the proposed personnel action for a period not to 
exceed 30 days if the General Counsel believes that the proposed 
personnel action arises out of a prohibited personnel practice. The 
request shall be in writing and shall specify the nature of the action 
to be stayed and the basis for the General Counsel's belief. The 
Board's Office of General Counsel shall serve a copy of the request on 
the GAO. Within three business days of its filing, the request shall be 
granted by the Board member designated by the Board Chair to entertain 
the request unless that Board member determines that the request 
either:
    (1) Fails to satisfy the requirements of this paragraph or
    (2) On its face, conclusively establishes that the proposed 
personnel action did not arise out of an alleged prohibited personnel 
practice as specified by the General Counsel.
    (b) The Board's General Counsel may request the issuance of either:
    (1) Further temporary stays for the purpose of allowing additional 
time to pursue its investigation or
    (2) A permanent stay for the purpose of staying the proposed 
personnel action until a final decision is rendered.
    (c) Requests for stays under paragraph (b) of this section shall be 
received by both the Board and the GAO no less than 10 days before the 
expiration of any stay then in effect. Any response from GAO to the 
request shall be received by both the Board and the Board's Office of 
General Counsel no less than three days before the expiration of any 
stay then in effect. Any request for stay under this paragraph shall be 
decided by the Board member who issued the prior stay under paragraph 
(a) of this section, unless the Board Chair determines that it should 
be decided by the Board en banc. The Board member, or Board en banc, 
may require further briefing, oral argument, submission of affidavits 
or other documentary evidence, or may conduct an evidentiary hearing 
before rendering a decision. Any stay then in effect may be extended, 
sua sponte, for a period not to exceed 30 days to enable the Board 
member, or Board en banc, a reasonable opportunity to render a 
decision.
    (d) A temporary stay under paragraph (b)(1) of this section may be 
issued if the Board member, or Board en banc, determines that under all 
of the circumstances the interests of justice would be served by 
providing more time for the Board's Office of General Counsel to pursue 
the investigation. However, the duration of any single temporary stay 
shall not exceed the amount of time reasonably necessary to acquire 
sufficient information to support a request for a permanent stay in the 
exercise of a high degree of diligence and, in no event, shall any 
single temporary stay exceed 60 days except as provided under paragraph 
(c) of this section for the purpose of allowing time to render a 
decision.
    (e) In determining whether a permanent stay under paragraph (b)(2) 
of this section should be issued, the Board member, or Board en banc, 
shall:
    (1) Assess the evidence adduced by each side as to whether the 
proposed personnel action arises out of an alleged prohibited personnel 
practice as specified by the Board's General Counsel;
    (2) Assess the nature and gravity of any harm that could inure to 
each side if the request for permanent stay is either granted or 
denied; and
    (3) Balance the assessments conducted under paragraphs (e)(1) and 
(2) of this section.
* * * * *

Subpart I--Ex Parte Communications

0
52. Amend Sec.  28.146 by revising the second sentence of paragraph (a) 
to read as follows:


Sec.  28.146  Explanation and definitions.

    (a) * * * The only ex parte communications that are prohibited are 
those that involve the merits of the case or those that violate other 
rules requiring submissions to be in writing. * * *
* * * * *

0
53. Add subpart K, consisting of Sec. Sec.  28.160 and 28.161 to read 
as follows:
Subpart K--Access to Records
Sec.
28.160 Request for records.
28.161 Denial of access to information--Appeals.

Subpart K--Access to Records


Sec.  28.160  Request for records.

    (a) Individuals may request access to records pertaining to them 
that are maintained as described in 4 CFR part 83, by addressing an 
inquiry to the PAB General Counsel either by mail or by appearing in 
person at the Personnel Appeals Board Office of General Counsel, 820 
First Street, NE., Suite 580, Washington, DC 20002, during business 
hours on a regular business day. Requests in writing should be clearly 
and prominently marked ``Privacy Act Request.'' Requests for copies of 
records shall be subject to duplication fees set forth in 4 CFR 83.17.
    (b) Individuals making a request in person shall be required to 
present satisfactory proof of identity, preferably a document bearing 
the individual's photograph. Requests by mail or submitted other than 
in person should contain sufficient information to enable the General 
Counsel to determine with reasonable certainty that the requester and 
the subject of the record are one and the same. To assist in this 
process, individuals should submit their names and addresses, dates and 
places of birth, social security number, and any other known 
identifying information such as an agency file number or identification 
number and a description of the circumstances under which the records 
were compiled.
    (c) Exemptions from disclosure. The Personnel Appeals Board General 
Counsel and the Personnel Appeals Board, in deciding what records are 
exempt from disclosure, will follow the policies set forth in 4 CFR 
part 83.


Sec.  28.161  Denial of access to information--Appeals.

    (a) If a request for access to information under Sec.  28.160 is 
denied, the General Counsel shall give the requester the following 
information:
    (1) The General Counsel's name and business mailing address;
    (2) The date of the denial;
    (3) The reasons for the denial, including citation of appropriate 
authorities; and
    (4) The individual's right to appeal the denial as set forth in 
paragraphs (b) and (c) of this section.
    (b) Any individual whose request for access to records of the PAB 
General Counsel has been denied in whole or part by the General Counsel 
may, within 30 days of receipt of the denial, challenge that decision 
by filing a written request for review of the decision with the 
Personnel Appeals Board, 820 First Street, NE., Suite 560, Washington, 
DC 20002.

[[Page 69305]]

    (c) The appeal shall describe:
    (1) The initial request made by the individual for access to 
records;
    (2) The General Counsel's decision denying the request; and
    (3) The reasons why that decision should be modified by the Board.
    (d) The Board, en banc, may in its discretion render a decision 
based on the record, may request oral argument, or may conduct an 
evidentiary hearing.

PART 29--[REMOVED AND RESERVED]

0
54. Remove and reserve part 29.

Anne M. Wagner,
Chair, Personnel Appeals Board, U.S. General Accounting Office.
[FR Doc. 03-30698 Filed 12-11-03; 8:45 am]
BILLING CODE 1610-02-P