SUPPLEMENTARY INFORMATION:

The Government Accountability Office (GAO) is not subject to the Administrative Procedure Act and accordingly the PAB is not required by law to seek comments before issuing a final rule. The 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 authority over GAO's Equal Employment Opportunity (EEO) process at the agency. The Board's procedural regulations applicable to GAO appear at 4 CFR parts 27 and 28. The Board is revising these regulations to maximize judicial economy, streamline processes and modernize litigation processes to provide to electronic means for communication, filing, and service.

For the reasons stated in the summary, GAO proposes to amend 4 CFR part 28 as follows:

1. The authority citation for part 28 continues to read as follows:

Authority: 31 U.S.C. 753.

2. Amend § 28.4(b) by changing “paper upon them and the notice or paper is served by mail, five (5) days shall be added to the prescribed period. Only two (2) days shall be added when a document is served by express mail or other form of expedited delivery.” to “document upon them and the notice is served electronically, the time shall be computed as described above in paragraph (a) of this section. If the notice is served” and delete “Only two (2) days shall be added when a document is served by express mail or other form of expedited delivery.”

3. Amend § 28.4(d) by changing “No written submission shall be accepted by the Clerk of the Board after 4 p.m., Monday through Friday” to “To compute a deadline date the Board will consider a day to end after 11:59 p.m. Eastern Time. Administrative Judges can choose to alter the applicable time zone at their discretion.”

4. Amend § 28.8(a) by deleting the Board's Executive Director, Director of EEO Oversight, Solicitor.

5. Amend § 28.9(b) by changing “No pleading, motion or supporting memorandum filed with the Board shall exceed 60 pages, exclusive of attachments. The Board or the administrative judge may waive this limitation for good cause shown. Pleadings, motions and supporting memoranda, and attachments thereto, shall be on standard letter-size paper (8 1/2 x 11).” to “All pleadings, motions or supporting memoranda filed with the Board shall comply with the formatting and organization requirements contained in the Board's Local Rules. The Board or the administrative judge may permit a deviation from the Local Rules upon a showing of good cause.”

6. Amend § 28.11(b)(1) to remove the words “30 days” and add, in their place, the words “45 days”.

7. Amend § 28.11(b)(2) to remove the words “30 days” and add, in their place, the words “45 days”.

8. Amend § 28.11(b)(4) by revising paragraph (b)(4) to read as follows: “Charges relating to continuing violations must be filed within 45 days of at least one act or incident contributing to the continuing violation.”

9. Amend § 28.11(b) by adding paragraph (b)(5) to read as follows: “Charges relating to unfair labor practices shall be filed in accordance with the rules set forth in § 28.121.”

10. Amend § 28.11(c) by revising paragraph (c) to read as follows:

“How to file. Charges may be filed with the Office of General Counsel by email or by U.S. Mail.

(1) A charge may be filed by sending the charge as an attachment to an email ( printed page 51108) addressed to pabogc@gao.gov. When filed electronically, the filing date is the date and time the email is delivered to the pabogc@gao.gov mailbox.

(i) In the event a charge is mistakenly sent to the pab@gao.gov mailbox instead of the pabogc@gao.gov mailbox, the Office of General Counsel may treat the filing as if it had been sent to the pabogc@gao.gov mailbox for timeliness purposes.

(2) A charge may be filed by U.S. Mail addressed to the Office of General Counsel, Personnel Appeals Board, Room 1562, 441 G Street NW, Washington, DC 20548. When filed by mail, the postmark shall be the date of filing.”

11. Amend § 28.11(d) by revising the introduction language to read as follows: “What to file. A written charge must be filed with the Office of General Counsel. A charge may be submitted in any written form (Office of General Counsel charge form, letter, memorandum, etc.). The charging party should include in any charge the following information:”

12. Amend § 28.11(d) by adding paragraph (d)(7)(i) to read as follows:

“An electronic filing may include any of the following forms of signature:

(A) An electronic signature using a government or other private secure electronic signature,

(B) Signer may type “/s/” followed by the typed name of the person, or

(C) A scanned pen/ink signature of the person signing the charge.”

13. Amend § 28.11(e) to add the words “Attorney's Fees” as the paragraph heading.

14. Amend § 28.18(b)(1) by changing “paragraph” to “§ 28.18”.

15. Amend § 28.18(b)(2) by changing “paragraph” to “§ 28.18”.

16. Amend § 28.18(b)(3) by changing “paragraph” to “§ 28.18”.

17. Amend § 28.18(c)(1) by changing “A petition may be filed by hand delivery to the office of the Personnel Appeals Board, Room 1566, 441 G Street NW, Washington, DC 20548. It must be received by 4 p.m., Monday through Friday, on the date that it is filed.” to “Petitions shall conform to the specifications and instructions laid out in the Local Rules for the Personnel Appeals Board, which are posted and publicly available on the PAB's website ( www.pab.gao.gov).”

18. Amend § 28.18(c)(2) by changing “A petition may be filed by mail addressed to the Personnel Appeals Board, Room 1566, 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.” to “Generally, it is required for all parties to file electronically. However, the Board or administrative judge may permit an exception for good cause. A petition filed electronically must be filed in accordance with the Board's local rules.”

19. Amend § 28.18(c) by adding subparagraph “(3) A petition filed by mail shall be addressed to the Personnel Appeals Board, Room 1566, 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 and should contain a statement and any relevant documentation to demonstrate good cause for not filing electronically in accordance with paragraph (c)(2).”

20. Amend § 28.18(d)(6) by adding “, and a designation of representative signed by the petitioner;” after “further stages of the matter”.

21. Amend § 28.18(d)(7) by changing “Signature of the petitioner or petitioner's representative” “Signature of the petitioner and petitioner's representative (if any), as directed by § 28.20; and”

22. Amend § 28.18(d) by adding subsection (8) Any additional information directed by the Local Rules.

23. Amend § 28.18(f) by adding changing “ 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 § 28.97 for EEO class actions.” to “ 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 except any class petition solely based upon claims of prohibited discrimination covered under § 28.95 shall be processed pursuant to the Special Procedures: Equal Employment Opportunity (EEO) Cases set forth under § 28.97.

24. Add subsections to § 28.18(f)

(1) Petition. The judge will hear the case as a class petition if they find that a class petition is the fairest and most efficient way to adjudicate the petition, and that the representative of the parties will adequately protect the interests of all parties.

(2) What to File. In addition to the information required under § 28.18(d), any class petition shall:

(A) State clearly that it is being filed as a class petition.

(B) Set forth a description of the scope of the common class claims.

(C) Set forth an explanation as to whether and how the proposed class agent(s) are typical representatives of the common class claims.

(D) State whether the putative class includes persons covered by applicable collective bargaining agreements to which GAO is a party.

(E) State whether the proposed class requests a hearing on class certification.

(3) Timing. When a class petition is filed, the deadline to file individual petitions is tolled for the claims set forth under § 28.18(f)(2)(B). However, if the judge denies the class certification request, individuals affected by the decision may file individual petitions within 30 days following the date of the decision denying class certification. Each individual petitioner is responsible for keeping informed of the status of a class petition.

(4) Notice. The Clerk of the Board will publish notices of pending class certification upon receipt of a class petition.

(5) Review. A decision on a request to certify a class action petition is not reviewable pursuant to § 28.87(b) until the judge issues an initial decision under § 28.87(a).”

25. Amend § 28.20 to delete “Number of”

26. Amend § 28.20(a) to change “Number. One original and seven copies of all pleadings (see definition in § 28.3) must be filed with the Board. However, when before a single administrative judge, one original and three copies will be adequate unless informed otherwise.” to “Matters excluded from e-filing. E-filing is not required to File a request to hear a case as a class action or any opposition thereto e-filing may not be used to file a pleading that contains classified information. Refer to Local Rules for instructions on how to proceed if relevant case materials contain classified information.”

27. Amend § 28.20(b)(1) by changing “copies of a” to “the,” deleting “by mail and/or by facsimile.” Change “a service list indicating the names and addresses of the parties to the proceeding or their designated representatives.” to “an official Service List indicating the names, addresses, and email addresses of the parties to the proceeding and/or their designated representatives as they have been provided to the Board. The email address contained on the service list will be the party's registered email address for the duration of the case unless changed in accordance with paragraph (b)(2) of this section and the Board's local rules.”

28. Amend § 28.20(b)(2) by changing “mailing, by facsimile or by delivering personally,” to “email,” changing “a copy of the pleading to each party on the service list previously provided by ( printed page 51109) the Board. Each pleading must be accompanied by a certificate of service specifying how and when service was made. It shall be the duty of all parties to notify the Board and one another in writing of any changes in the names or addresses on the service list.” to “to the parties' and/or their representatives' registered email address as contained on the service list. Service shall be by email unless good cause has been shown and the administrative judge has granted a request to conduct service by mail. Each pleading must be accompanied by a certificate of service specifying how and when service was made. It shall be the duty of all parties to notify the Board and one another in writing of any changes in the names, addresses and email addresses on the service list.”

29. Amend § 28.20(b) by adding subpart “(3) The Board may serve documents via traditional means—postal mail, facsimile, commercial or personal delivery at its discretion. Parties and their representatives are responsible for ensuring that the Board always has their current postal mailing addresses, even when they are e-filers.”

30. Amend § 28.20(d) by changing “§ 28.9(b)” to “in the Board's local rules.”

31. Amend § 28.20 by adding subparts “(e) Signatures. (1) All filings must contain the signature of the filing party or the filing party's designated representative. (2) A filing made through a person's registered email address, authorized by that person and containing one of following methods listed will constitute a valid signature: (i) An electronic signature using a government or other private secure electronic signature, (ii) Signer may type “/s/” followed by the typed name of the person, or (iii) A scanned pen/ink signature of that person. (f) Date electronically filed documents are filed and served. (1) The date of filing for pleadings filed electronically is the date of the electronic submission. All pleadings filed electronically are time stamped with Eastern Time. (2) Documents issued by the Board are deemed received on the date of electronic transmission.”

32. Amend § 28.21(b)(1) by changing “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.” to “Motions shall be filed in accordance with § 28.20. Responses to written motions must be filed within 20 days of service of the motion unless the administrative judge requires a shorter time, or an extension has been requested and granted.”

33. Amend § 28.21(b)(2) by changing “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.” to “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 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.”

34. Amend § 28.21(b)(3) by changing “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 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.” to “All written submissions shall be served simultaneously upon the other parties to the proceeding in accordance with § 28.20(b). A certificate of service must be attached stating the method of service and listing the parties served. Further submissions by either party may be filed only with the approval of the administrative judge or the full Board.”

35. Amend § 28.21(b)(4) by changing “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” to “All written motions and responses thereto shall include a proposed order, where applicable.”

36. Amend § 28.21(b)(5) by changing “All written motions and responses thereto shall include a proposed order, where applicable” to “Motions for extension of time will be granted only upon a showing of good cause.”

37. Amend § 28.21(b)(6) by changing “Motions for extension of time will be granted only upon a showing of good cause” to “Oral argument. The administrative judge may allow oral argument on the motion at his or her discretion.”

38. Delete § 28.21(b)(7)

39. Amend § 28.21(c)(3) by adding “by the administrative judge” after “will be granted.”

40. Amend § 28.25(a) by changing “shall instead” to “shall also.”

41. Amend § 28.42 by changing “Discovery from a party. A party seeking discovery from another party shall initiate the process by serving a request for discovery on the other party” to “Seeking discovery generally. The administrative judge shall notify the parties of the right to seek discovery prior to the hearing and may issue such discovery orders as are appropriate. Both parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the petition, but the administrative judge and/or the Board's Local Rules may limit the quantity and timing of discovery. Evidence may be developed through interrogatories, depositions, and requests for admissions, stipulations or production of documents. Examples of grounds for objection to produce evidence include requests for information that is readily available, irrelevant to the matter, overburdensome to produce, repetitious of previous requests, or protected by privilege.”

42. Amend § 28.42(a)(2) by changing “The notice shall: (i) Specify the time and place of the taking of the deposition; and (ii) Be served on the person to be deposed” to “The notice shall specify the time and place of the taking of the deposition; and”

43. Amend § 28.42(a)(3) by adding “or any Federal employee” after “GAO”.

44. Amend § 28.42(b) by deleting “When a party unable to obtain voluntary cooperation, the party may request that the administrative judge issue a subpoena by following the procedures set forth in § 28.46.”

45. Amend § 28.42(d)(1) by changing “Requests for discovery shall be served within 30 days after the service list is served by the Board on all parties” to “The administrative judge shall notify the parties of the commencement and time limits to initiate discovery.”

46. Amend § 28.42(d)(2) by deleting “Any discovery requests following the initial request shall be served within 10 days of the date of service of the prior response, unless otherwise directed.” And deleting “or in the subpoena,”.

47. Amend § 28.42(d)(5) by changing “judge, but no later than 65 days after the service of the notice of filing of a petition. A later date may be set by the administrative judge after due consideration of the particular situation including the dates for hearing set and closing of the case record.” To “judge.” ( printed page 51110)

48. Delete §§ 28.46 through 28.50 RESERVED.

49. Amend § 28.56(b) by changing “will be conducted as” to “is”.

50. Amend § 28.56(c) by changing “will be” to “are.”

51. Amend § 28.56(d) by changing “the original of each such exhibit to the court reporter, two copies to the administrative judge, plus one copy for each opposing party that is separately represented” to “their exhibits in accordance with the Board's Local Rules and the orders of the administrative judge.”

52. Amend § 28.56(e) by changing “bringing the proper number of copies of an exhibit to the hearing” to “for providing their own exhibits and complying with Board's Local Rules and the orders of the administrative judge.”

53. Amend § 28.56(f) by changing “in the lower right hand corner and the first page shall indicate the total number of pages in the exhibit. Multiple exhibits shall be indexed and tabbed” to “and formatted in accordance with the Board's Local Rules.”

54. Amend § 28.56(g) by changing “No later than the commencement of the hearing, each party shall submit to the administrative judge, to the court reporter, and to the opposing party (1) A typed list of the witnesses expected to be called to testify; and (2) a typed list of the acronyms (with definitions) expected to be used by the witnesses” to “Prior to commencement of the hearing and at the direction of the administrative judge, the parties shall submit to the administrative judge and to the opposing party: a list of witnesses they expect to call at hearing.”

55. Amend § 28.60(a) by changing “Principal briefs shall not exceed 60 pages and reply briefs 30 pages, exclusive of tables and pages limited only to quotations of statutes, rules, and the like. Motions to file extended briefs shall be granted only for good cause shown. Briefs in excess of 10 pages shall include an index and a table of authorities” to “Briefs shall conform to the length requirements contained in the Board's Local Rules unless otherwise directed by the administrative judge. Motions to file extended briefs shall be granted only for good cause shown.”

56. Amend § 28.60(b) by changing “Every brief must be easily readable. Pages must be 8 1/2 x 11 inches with margins at least one inch on all sides. Typewritten briefs must have double spacing between each line of text, except for quoted texts which may be single spaced” to “Every brief must conform to the formatting requirements contained in the Board's Local Rules unless otherwise directed by the administrative judge.”

57. Delete § 28.60(c)

58. Amend § 28.133(a) by changing “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” to “Initial Stay Request. If the General Counsel believes that a proposed personnel action is arising out of a prohibited personnel practice, the General Counsel may request the issuance of an initial stay, not to exceed 30 days. The initial stay” and adding “submitted prior to the effective date of the proposed personnel action, be” after “request shall be.” Delete “, and shall” before “, specify” and delete “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.”

59. Amend § 28.133(b) to change “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” to “The assigned Board member shall issue a ruling on the initial request prior to the effective date of the proposed personnel action but not more than three (3) business days following the initial stay request. The request shall be granted unless the Board member determines that the request either: (1) Fails to satisfy the requirements of this paragraph (a) 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.”

60. Amend § 28.133(c) to change “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” to “The Board's General Counsel may request additional stays for the following reasons: (1) For the purpose of allowing additional time to pursue its investigation or (2) For the purpose of staying the proposed personnel action that is the subject of a petition before the Board until a final decision is rendered.”

61. Amend § 28.133(d) to change “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” to “Requests for stays under paragraph (c) of this section shall be received by both the Board and 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 paragraphs (a) and (b) of this section, unless the Board Chair determines that it should be decided by the full Board. The Board member, or the full Board, 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 ( printed page 51111) the Board member, or full Board, a reasonable opportunity to render a decision.”

62. Amend § 28.133(e) to change “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” to “A stay under paragraph (c)(1) of this section may be issued if the Board member, or The full Board, 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 a stay under paragraph (c)(1) of this section shall not exceed the amount of time reasonably necessary to acquire sufficient information to support a request normally not more than 60 days.”

63. Amend § 28.133(f) to change “Any order issued by a member of the Board granting or denying, in whole or in part, a stay request under paragraph (b) shall be subject to review by the Board en banc on the filing and service of a notice of appeal, accompanied by a supporting brief, within 10 days of the service of that order. Responsive briefs shall be filed and served within 10 days of service of the appeal” to “In determining whether to grant a stay under paragraph (c)(2) of this section, the Board member, or the full Board, 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 (f)(1) and (2) of this section.”

64. Add § 28.133(h) “Any order issued by a member of the Board granting or denying, in whole or in part, a stay request under paragraph (c) shall be subject to review by the full Board on the filing and service of a notice of appeal, accompanied by a supporting brief, within 10 days of the service of that order. Responsive briefs shall be filed and served within 10 days of service of the appeal.”

91 FR 51107