Procedures for Previously Exempt State and Local Government Employee Complaints of Employment Discrimination Under the Government Employee Rights Act of 1991

Federal RegisterApr 10, 1997

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1603

RIN 3046-AA45

Procedures for Previously Exempt State and Local Government

Employee Complaints of Employment Discrimination Under the Government

Employee Rights Act of 1991

AGENCY: Equal Employment Opportunity Commission.

ACTION: Interim rule.

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SUMMARY: Title III of the Civil Rights Act of 1991, entitled the

Government Employee Rights Act of 1991, extends the protections against

employment discrimination based on race, color, religion, sex, national

origin, age and disability to previously exempt state and local

government employees. This interim rule establishes EEOC procedures for

resolving employment discrimination complaints filed by those

individuals.

DATES: This rule will become effective on April 10, 1997. Written

comments on the interim rule must be received on or before June 9,

1997.

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ADDRESSES: Comments should be submitted to the Office of the Executive

Secretariat, Equal Employment Opportunity Commission, 1801 L Street,

N.W., Washington, D.C. 20507. Copies of comments submitted by the

public will be available for review at the Commission's library, room

6502, 1801 L Street, N.W., Washington, D.C. between the hours of 9:30

a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Nicholas M. Inzeo, Deputy Legal

Counsel, Thomas J. Schlageter, Assistant Legal Counsel or Stephanie D.

Garner, Senior Attorney, at (202) 663-4669 or TDD (202) 663-7026. This

notice is also available in the following formats: Large print,

braille, audio tape and electronic file on computer disk. Requests for

this notice in an alternative format should be made to the Publications

Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: Title III of the Civil Rights Act of 1991

contains the Government Employee Rights Act of 1991. 2 U.S.C. 1201 et

seq. Section 321 of the Government Employee Rights Act of 1991 (the

Act) provides new equal employment opportunity protections for

previously exempt state and local government employees. The Act

designates the Equal Employment Opportunity Commission as the

enforcement agency for previously exempt state and local government

employees covered by section 321. 2 U.S.C. 1220.

Section 321 of the Act provides for an administrative enforcement

mechanism that is different from EEOC's normal charge resolution

procedures contained in 29 C.F.R. Part 1601. Under section 321, a

covered individual who believes he or she was discriminated against has

180 days to file a complaint. Thereafter, the Act provides that the

matter be processed in accordance with the formal adjudication

principles and procedures set forth in sections 554 through 557 of the

Administrative Procedure Act, 5 U.S.C. 554-557. Section 321 provides

for judicial review of a Commission final order under chapter 158 of

title 28 of the United States Code.

This interim rule sets out the Commission's procedures for handling

complaints brought by individuals covered by section 321 of the Act.

The filing procedures for complaints follow established Commission

procedures for charges published at 29 CFR Part 1601. Previously exempt

state and local government employees may file a complaint with the

Commission at its offices in Washington, D.C. or any of its field

offices. The Commission will review each complaint for jurisdiction

under section 321 and dismiss those complaints that fail to state a

claim. EEOC may refer a complaint from a previously exempt state or

local government employee to a neutral mediator or to any other

alternative dispute resolution process. EEOC may investigate a 321

complaint using a variety of fact-finding methods. In an investigation,

EEOC can issue subpoenas for the production of evidence or witnesses.

EEOC's existing subpoena procedures, found at 29 CFR 1601.16, will

apply to subpoenas issued under this part. The investigative procedures

of this rule are modeled after those in Part 1601 of this Chapter. It

is the Commission's intention to apply these procedures consistently

with its application of the Part 1601 procedures.

If the complaint is not dismissed or resolved during mediation or

investigation, the Commission will send the complaint to an

administrative law judge for formal adjudication in accordance with the

Administrative Procedure Act. Discovery under this part will be

conducted in accordance with the Federal Rules of Civil Procedure and

the administrative law judge will accept evidence in accordance with

the Federal Rules of Evidence, except that the rules on hearsay will

not be strictly applied. The administrative law judge will issue a

decision within 270 days after referral of a complaint for hearing.

Within 30 days of issuance, any party may appeal the dismissal of a

complaint, a matter certified for interlocutory review, an

administrative law judge's denial of a motion for withdrawal or a

decision of an administrative law judge to the Commission. After the

parties have briefed the issues, the Commission will issue a final

order. In the absence of a timely appeal, the final decision of the

administrative law judge will become the final order of the Commission.

Previously exempt state and local government employees may seek

judicial review of an EEOC final order within 60 days after its

issuance in the judicial circuit in which the petitioner resides, or

has its principle office, or in the United States Court of Appeals for

the District of Columbia Circuit.

The Commission is publishing part 1603 as an interim rule to

provide for immediate processing of complaints already filed under

section 321 of the Act. The Commission will consider all comments

received on part 1603 and, if necessary, will publish a revised final

rule.

Executive Order 12866

In promulgating the interim rule implementing section 321 of the

Act, the Commission has adhered to the regulatory philosophy and the

applicable principles of regulation set forth in section 1 of Executive

Order 12866, Regulatory Planning and Review. In addition, it has been

determined that this regulation is not a significant regulatory action

within the meaning of section 3(f).

Regulatory Flexibility Act

As Chairman of the Equal Employment Opportunity Commission, I

certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that

this interim rule will not have a significant economic impact on a

substantial number of small entities because it establishes procedures

for complaints of discrimination by formerly exempt state and local

government employees.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. Chapter 35) does not apply

to this interim rule because it does not contain information collection

requirements that require the approval of the Office of Management and

Budget.

List of Subjects in 29 CFR Part 1603

Administrative practice and procedure, Equal employment

opportunity, Intergovernmental relations, Investigations, State and

local governments.

For the Commission.

Gilbert F. Casellas,

Chairman.

For the reasons set forth in the preamble, title 29, chapter XIV of

the Code of Federal Regulations is amended by adding part 1603 to read

as follows:

PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL

GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER

SECTION 321 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

Sec.

1603.100 Purpose.

Subpart A--Administrative Process

1603.101 Coverage.

1603.102 Filing a complaint.

1603.103 Referral of complaints.

1603.104 Service of the complaint.

1603.105 Withdrawal of a complaint.

1603.106 Computation of time.

1603.107 Dismissals of complaints.

1603.108 Settlement and alternative dispute resolution.

1603.109 Investigations.

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Subpart B--Hearings

1603.201 Referral and scheduling for hearing.

1603.202 Administrative law judge.

1603.203 Unavailability or withdrawal of administrative law judges.

1603.204 Ex parte communications.

1603.205 Separation of functions.

1603.206 Consolidation and severance of hearings.

1603.207 Intervention.

1603.208 Motions.

1603.209 Filing and service.

1603.210 Discovery.

1603.211 Subpoenas.

1603.212 Witness fees.

1603.213 Interlocutory review.

1603.214 Evidence.

1603.215 Record of hearings.

1603.216 Summary decision.

1603.217 Decision of the administrative law judge.

Subpart C--Appeals

1603.301 Appeal to the Commission.

1603.302 Filing an appeal.

1603.303 Briefs on appeal.

1603.304 Commission decision.

1603.305 Modification or withdrawal of Commission decision.

1603.306 Judicial review.

Authority: 2 U.S.C. 1220.

Sec. 1603.100 Purpose.

This part contains the regulations of the Equal Employment

Opportunity Commission (hereinafter the Commission) for processing

complaints of discrimination filed under section 321 of the Government

Employee Rights Act, 2 U.S.C. 1220.

Subpart A--Administrative Process

Sec. 1603.101 Coverage.

Section 321 of the Government Employee Rights Act of 1991 applies

to employment, which includes application for employment, of any

individual chosen or appointed by a person elected to public office in

any State or political subdivision of any State by the qualified voters

thereof:

(a) To be a member of the elected official's personal staff;

(b) To serve the elected official on the policymaking level; or

respect to the exercise of the constitutional or legal powers of the

office.

Sec. 1603.102 Filing a complaint.

(a) Who may make a complaint. Individuals referred to in

Sec. 1603.101 who believe they have been discriminated against on the

basis of race, color, religion, sex, national origin, age or disability

or retaliated against for opposing any practice made unlawful by

federal laws protecting equal employment opportunity or for

participating in any stage of administrative or judicial proceedings

under federal laws protecting equal employment opportunity may file a

complaint not later than 180 days after the occurrence of the alleged

discrimination.

(b) Where to file a complaint. A complaint may be filed in person

or by mail or by facsimile machine to the offices of the Commission in

Washington, D.C., or any of its field offices or with any designated

agent or representative of the Commission. The addresses of the

Commission's field offices appear in 29 CFR 1610.4.

signed and verified. In addition, each complaint should contain the

following:

(1) The full name, address and telephone number of the person

making the complaint;

(2) The full name and address of the person, governmental entity or

political subdivision against whom the complaint is made (hereinafter

referred to as the respondent);

(3) A clear and concise statement of the facts, including pertinent

dates, constituting the alleged unlawful employment practices (See 29

CFR 1601.15(b)); and

(4) A statement disclosing whether proceedings involving the

alleged unlawful employment practice have been commenced before a State

or local FEP agency charged with the enforcement of fair employment

practice laws and, if so, the date of such commencement and the name of

the agency.

(d) Amendment of a complaint. Notwithstanding paragraph (c) of this

section, a complaint is sufficient when the Commission receives from

the person making the complaint a written statement sufficiently

precise to identify the parties and to describe generally the alleged

discriminatory action or practices. A complaint may be amended to cure

technical defects or omissions, including failure to verify the

complaint, or to clarify and amplify its allegations. Such amendments,

and amendments alleging additional acts that constitute discriminatory

employment practices related to or growing out of the subject matter of

the original complaint, will relate back to the date the complaint was

first received. A complaint that has been amended after it was referred

shall not be again referred to the appropriate state or local fair

employment practices agency.

(e) Misfiled complaint. A charge filed pursuant to 29 CFR part 1601

or part 1626, that is later deemed to be a matter under this part,

shall be processed as a complaint under this part and shall relate back

to the date of the initial charge or complaint. A complaint filed under

this part that is later deemed to be a matter under 29 CFR part 1601 or

part 1626 shall be processed as a charge under the appropriate

regulation and shall relate back to the date of the initial complaint.

Sec. 1603.103 Referral of complaints.

(a) The Commission will notify an FEP agency, as defined in 29 CFR

1601.3(a), when a complaint is filed by a state or local government

employee or applicant under this part concerning an employment practice

within the jurisdiction of the FEP agency. The FEP agency will be

entitled to process the complaint exclusively for a period of not less

than 60 days if the FEP agency makes a written request to the

Commission within 10 days of receiving notice that the complaint has

been filed, unless the complaint names the FEP agency as the

respondent.

(b) The Commission may enter into an agreement with an FEP agency

that authorizes the FEP agency to receive complaints under this part on

behalf of the Commission, or waives the FEP agency's right to exclusive

processing of complaints.

Sec. 1603.104 Service of the complaint.

Upon receipt of a complaint, the Commission shall promptly serve

the respondent with a copy of the complaint.

Sec. 1603.105 Withdrawal of a complaint.

The complainant may withdraw a complaint at any time by so advising

the Commission in writing.

Sec. 1603.106 Computation of time.

(a) All time periods in this part that are stated in terms of days

are calendar days unless otherwise stated.

(b) A document shall be deemed timely if it is delivered by

facsimile not exceeding 20 pages, in person or postmarked before the

expiration of the applicable filing period, or, in the absence of a

legible postmark, if it is received by mail within five days of the

expiration of the applicable filing period.

and equitable tolling.

(d) The first day counted shall be the day after the event from

which the time period begins to run and the last day of the period

shall be included unless it falls on a Saturday, Sunday or federal

holiday, in which case the period shall be extended to include the next

business day.

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Sec. 1603.107 Dismissals of complaints.

(a) Where a complaint on its face, or after further inquiry, is

determined to be not timely filed or otherwise fails to state a claim

under this part, the Commission shall dismiss the complaint.

(b) Where the complainant cannot be located, the Commission may

dismiss the complaint provided that reasonable efforts have been made

to locate the complainant and the complainant has not responded within

30 days to a notice sent by the Commission to the complainant's last

known address.

fails or refuses to appear or to be available for interviews or

conferences as necessary, or otherwise refuses to cooperate, the

Commission, after providing the complainant with notice and 30 days in

which to respond, may dismiss the complaint.

(d) Written notice of dismissal pursuant to paragraphs (a), (b), or

respondent. The Commission hereby delegates authority to the Program

Director, Office of Program Operations, or to his or her designees, and

District Directors, or to their designees, to dismiss complaints.

(e) A complainant who is dissatisfied with a dismissal issued

pursuant to paragraphs (a), (b), or (c) of this section may appeal to

the Commission in accordance with the procedures in subpart C of this

part.

Sec. 1603.108 Settlement and alternative dispute resolution.

(a) The parties are at all times free to settle all or part of a

complaint on terms that are mutually agreeable. Any settlement reached

shall be in writing and signed by both parties and shall identify the

allegations resolved. A copy of any settlement shall be served on the

Commission.

(b) With the agreement of the parties, the Commission may refer a

complaint to a neutral mediator or to any other alternative dispute

resolution process authorized by the Administrative Dispute Resolution

Act, 5 U.S.C. 571 to 583, or other statute.

and Conciliation Service, other federal agencies, appropriate

professional organizations, employees of the Commission and other

appropriate sources in selecting neutrals for alternative dispute

resolution processes.

(d) The alternative dispute resolution process shall be strictly

confidential, and no party to a complaint or neutral shall disclose any

dispute resolution communication or any information provided in

confidence to the neutral except as provided in 5 U.S.C. 584.

Sec. 1603.109 Investigations.

(a) Before referring a complaint to an administrative law judge

under section 201 of this part, the Commission may conduct

investigation using an exchange of letters, interrogatories, fact-

finding conferences, interviews, on-site visits or other fact-finding

methods that address the matters at issue.

(b) During an investigation of a complaint under this part, the

Commission shall have the authority to sign and issue a subpoena

requiring the attendance and testimony of witnesses, the production of

evidence and access to evidence for the purposes of examination and the

right to copy. The subpoena procedures contained in 29 CFR 1601.16

shall apply to subpoenas issued pursuant to this section.

Subpart B--Hearings

Sec. 1603.201 Referral and scheduling for hearing.

(a) Upon request by the complainant under paragraph (b) of this

section or if the complaint is not dismissed or resolved under subpart

A of this part, on behalf of the Commission, the Office of Federal

Operations shall transmit the complaint file to an administrative law

judge, appointed under 5 U.S.C. 3105, for a hearing.

(b) If the complaint has not been referred to an administrative law

judge within 180 days after filing, the complainant may request that

the complaint be immediately transmitted to an administrative law judge

for a hearing.

date for the hearing with due regard for the convenience of the

parties, their representatives or witnesses and shall notify the

parties of the same.

Sec. 1603.202 Administrative law judge.

The administrative law judge shall have all the powers necessary to

conduct fair, expeditious, and impartial hearings as provided in 5

U.S.C. 556(c). In addition, the administrative law judge shall have the

power to:

(a) Change the time, place or date of the hearing;

(b) Enter a default decision against a party failing to appear at a

hearing unless the party shows good cause by contacting the

administrative law judge and presenting arguments as to why the party

or the party's representative could not appear either prior to the

hearing or within two days after the scheduled hearing; and

Civil Procedure (28 U.S.C. appendix).

Sec. 1603.203 Unavailability or withdrawal of administrative law

judges.

(a) In the event the administrative law judge designated to conduct

the hearing becomes unavailable or withdraws from the adjudication,

another administrative law judge may be designated for the purpose of

further hearing or issuing a decision on the record as made, or both.

(b) The administrative law judge may withdraw from the adjudication

at any time the administrative law judge deems himself or herself

disqualified. Prior to issuance of the decision, any party may move

that the administrative law judge withdraw on the ground of personal

bias or other disqualification, by filing with the administrative law

judge promptly upon discovery of the alleged facts an affidavit setting

forth in detail the matters alleged to constitute grounds for

withdrawal.

withdrawal. If the administrative law judge concludes that the motion

is timely and has merit, the administrative law judge shall immediately

withdraw from the adjudication. If the administrative law judge does

not withdraw, the adjudication shall proceed.

Sec. 1603.204 Ex parte communications.

(a) Oral or written communications concerning the merits of an

adjudication between the administrative law judge or decision-making

personnel of the Commission and an interested party to the adjudication

without providing the other party a chance to participate are

prohibited from the time the matter is assigned to an administrative

law judge until the Commission has rendered a final decision.

Communications concerning the status of the case, the date of a

hearing, the method of transmitting evidence to the Commission and

other purely procedural questions are permitted.

(b) Decision-making personnel of the Commission include members of

the Commission and their staffs and personnel in the Office of Federal

Operations, but do not include investigators and intake staff.

made part of the record and an opportunity for rebuttal by the other

party allowed. If the communication was oral, a memorandum stating the

substance of the discussion shall be placed in the record.

(d) Where it appears that a party has engaged in prohibited ex

parte

[[Page 17546]]

communications, that party may be required to show cause why, in the

interest of justice, his or her claim or defense should not be

dismissed, denied or otherwise adversely affected.

Sec. 1603.205 Separation of functions.

(a) The administrative law judge may not be responsible to or

subject to the supervision or direction of a Commission employee

engaged in investigating complaints under this part.

(b) No Commission employee engaged in investigating complaints

under this part shall participate or advise in the decision of the

administrative law judge, except as a witness or counsel in the

adjudication, or its appellate review.

Sec. 1603.206 Consolidation and severance of hearings.

(a) The administrative law judge may, upon motion by a party or

upon his or her own motion, after providing reasonable notice and

opportunity to object to all parties affected, consolidate any or all

matters at issue in two or more adjudications docketed under this part

where common parties, or factual or legal questions exist; where such

consolidation would expedite or simplify consideration of the issues;

or where the interests of justice would be served. For purposes of this

section, no distinction is made between joinder and consolidation of

adjudications.

(b) The administrative law judge may, upon motion of a party or

upon his or her own motion, for good cause shown, order any

adjudication severed with respect to some or all parties, claims or

issues.

Sec. 1603.207 Intervention.

(a) Any person or entity that wishes to intervene in any proceeding

under this subpart shall file a motion to intervene in accordance with

Sec. 1603.208.

(b) A motion to intervene shall indicate the question of law or

fact common to the movant's claim or defense and the complaint at issue

and state all other facts or reasons the movant should be permitted to

intervene.

15 days after the filing of the motion to intervene.

Sec. 1603.208 Motions.

(a) All motions shall state the specific relief requested. All

motions shall be in writing, except that a motion may be made orally

during a conference or during the hearing. After providing an

opportunity for response, the administrative law judge may rule on an

oral motion immediately or may require that it be submitted in writing.

(b) Unless otherwise directed by the administrative law judge, any

other party may file a response in support of or in opposition to any

written motion within ten (10) business days after service of the

motion. If no response is filed within the response period, the party

failing to respond shall be deemed to have waived any objection to the

granting of the motion. The moving party shall have no right to reply

to a response, unless the administrative law judge, in his or her

discretion, orders that a reply be filed.

not grant a written motion prior to the expiration of the time for

filing responses. The administrative law judge may deny a written

motion without awaiting a response. The administrative law judge may

allow oral argument (including that made by telephone) on written

motions. Any party adversely affected by the ex parte grant of a motion

for a procedural order may request, within five (5) business days of

service of the order, that the administrative law judge reconsider,

vacate or modify the order.

(d) The administrative law judge may summarily deny dilatory,

repetitive or frivolous motions. Unless otherwise ordered by the

administrative law judge, the filing of a motion does not stay the

proceeding.

(e) All motions and responses must comply with the filing and

service requirements of Sec. 1603.209.

Sec. 1603.209 Filing and service.

(a) Unless otherwise ordered by the administrative law judge, a

signed original of each motion, brief or other document shall be filed

with the administrative law judge, with a certificate of service

indicating that a copy has been sent to all other parties, and the date

and manner of service. All documents shall be on standard size (8\1/2\

x 11) paper. Each document filed shall be clear and legible.

(b) Filing and service shall be made by first class mail or other

more expeditious means of delivery, including, at the discretion of the

administrative law judge, by facsimile. The administrative law judge,

may in his discretion, limit the number of pages that may be filed or

served by facsimile. Service shall be made on a party's representative,

or, if not represented, on the party.

docket number assigned to the matter, a designation of the type of

filing (e.g., motion, brief, etc.), and the filing person's signature,

address, telephone number and telecopier number, if any.

Sec. 1603.210 Discovery.

(a) Unless otherwise ordered by the administrative law judge,

discovery may begin as soon as the complaint has been transmitted to

the administrative law judge pursuant to Sec. 1603.201. Discovery shall

be completed as expeditiously as possible within such time as the

administrative law judge directs.

(b) Unless otherwise ordered by the administrative law judge,

parties may obtain discovery by written interrogatories (not to exceed

20 interrogatories including subparts), depositions upon oral

examination or written questions, requests for production of documents

or things for inspection or other purposes, requests for admission or

any other method found reasonable and appropriate by the administrative

law judge.

Procedure shall govern discovery in proceedings under this part.

(d) Neutral mediators who have participated in the alternative

dispute resolution process in accordance with Sec. 1603.108 shall not

be called as witnesses or be subject to discovery in any adjudication

under this part.

Sec. 1603.211 Subpoenas.

(a) Upon written application of any party, the administrative law

judge may on behalf of the Commission issue a subpoena requiring the

attendance and testimony of witnesses and the production of any

evidence, including, but not limited to, books, records,

correspondence, or documents, in their possession or under their

control. The subpoena shall state the name and address of the party at

whose request the subpoena was issued, identify the person and evidence

subpoenaed, and the date and time the subpoena is returnable.

(b) Any person served with a subpoena who intends not to comply

shall, within 5 days after service of the subpoena, petition the

administrative law judge in writing to revoke or modify the subpoena.

All petitions to revoke or modify shall be served upon the party at

whose request the subpoena was issued. The requestor may file with the

administrative law judge a response to the petition to revoke or modify

within 5 days after service of the petition.

under this section, the administrative law judge may refer the matter

to the Commission for enforcement in accordance with 29 CFR 1601.16(c).

[[Page 17547]]

Sec. 1603.212 Witness fees.

Witnesses summoned under this part shall receive the same fees and

mileage as witnesses in the courts of the United States. Those fees

must be paid or offered to the witness by the party requesting the

subpoena at the time the subpoena is served, or, if the witness appears

voluntarily, at the time of appearance. A federal agency or corporation

is not required to pay or offer witness fees and mileage allowances in

advance.

Sec. 1603.213 Interlocutory review.

(a) Interlocutory review may not be sought except when the

administrative law judge determines upon motion of a party or upon his

or her own motion that:

(1) The ruling involves a controlling question of law or policy

about which there is substantial ground for difference of opinion;

(2) An immediate ruling will materially advance the completion of

the proceeding; or

(3) The denial of an immediate ruling will cause irreparable harm

to the party or the public.

(b) Application for interlocutory review shall be filed within ten

(10) days after notice of the administrative law judge's ruling. Any

application for review shall:

(1) Designate the ruling or part thereof from which appeal is being

taken; and

(2) Contain arguments or evidence that tend to establish one or

more of the grounds for interlocutory review contained in paragraph (a)

of this section.

shall file a response to the application within 10 days after service

of the application. The applicant shall have no right to reply to a

response unless the administrative law judge, within his or her

discretion, orders that a reply be filed.

(d) The administrative law judge shall promptly certify in writing

any ruling that qualifies for interlocutory review under paragraph (a)

of this section.

(e) The filing of an application for interlocutory review and the

grant of an application shall not stay proceedings before the

administrative law judge unless the administrative law judge or the

Commission so orders. The Commission shall not consider a motion for a

stay unless the motion was first made to the administrative law judge.

Sec. 1603.214 Evidence.

The administrative law judge shall accept relevant non-privileged

evidence in accordance with the Federal Rules of Evidence (28 U.S.C.

appendix), except the rules on hearsay will not be strictly applied.

Sec. 1603.215 Record of hearings.

(a) All hearings shall be mechanically or stenographically

reported. All evidence relied upon by the administrative law judge for

decision shall be contained in the transcript of testimony, either

directly or by appropriate reference. All exhibits introduced as

evidence shall be marked for identification, with a copy provided for

all parties, if not previously provided, and incorporated into the

record. Transcripts may be obtained by the parties and the public from

the official reporter at rates fixed by the contract with the reporter.

(b) Corrections to the official transcript will be permitted upon

motion, only when errors of substance are involved and upon approval of

the administrative law judge. Motions for correction must be submitted

within ten (10) days of the receipt of the transcript unless additional

time is permitted by the administrative law judge.

Sec. 1603.216 Summary decision.

Upon motion of a party or after notice to the parties, the

administrative law judge may issue a summary decision without a hearing

if the administrative law judge finds that there is no genuine issue of

material fact or that the complaint may be dismissed pursuant to

Sec. 1603.107 or any other grounds authorized by this part. A summary

decision shall otherwise conform to the requirements of Sec. 1603.217.

Sec. 1603.217 Decision of the administrative law judge.

(a) The administrative law judge shall issue a decision on the

merits of the complaint within 270 days after referral of a complaint

for hearing, unless the administrative law judge makes a written

determination that good cause exists for extending the time for issuing

a decision. The decision shall contain findings of fact and conclusions

of law, shall order appropriate relief where discrimination is found,

and shall provide notice of appeal rights consistent with subpart C of

this part.

(b) The administrative law judge shall serve the decision promptly

on all parties to the proceeding and their counsel. Thereafter, the

administrative law judge shall transmit the case file to the Office of

Federal Operations including the decision and the record. The record

shall include the complaint; the investigative file, if any; referral

notice; motions; briefs; rulings; orders; official transcript of the

hearing; all discovery and any other documents submitted by the

parties.

Subpart C--Appeals

Sec. 1603.301 Appeal to the Commission.

Any party may appeal to the Commission the dismissal of a complaint

under Sec. 1603.107, any matter certified for interlocutory review

under Sec. 1613.213, or the administrative law judge's decision under

Sec. 1603.216 or Sec. 1603.217.

Sec. 1603.302 Filing an appeal.

(a) An appeal shall be filed within 30 days after the date of the

appealable decision or certification for interlocutory review, unless

the Commission, upon a showing of good cause, extends the time for

filing an appeal for a period not to exceed an additional 30 days.

(b) An appeal shall be filed with the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036, by mail or personal delivery or facsimile.

Sec. 1603.303 Briefs on appeal.

(a) The appellant shall file a brief or other written statement

within 30 days after the appeal is filed, unless the Commission

otherwise directs.

(b) All other parties may file briefs or other written statements

within 30 days of service of the appellant's brief or statement.

a section setting forth the party's legal arguments. Any brief or

statement in support of the appeal shall contain arguments or evidence

that tend to establish that the dismissal, order or decision:

(1) Is not supported by substantial evidence;

(2) Contains an erroneous interpretation of law, regulation or

material fact, or misapplication of established policy;

(3) Contains a prejudicial error of procedure; or

(4) Involves a substantial question of law or policy.

(d) Appellate briefs shall not exceed 50 pages in length.

(e) Filing and service of the appeal and appellate briefs shall be

made in accordance with Sec. 1603.209.

Sec. 1603.304 Commission decision.

(a) On behalf of the Commission, the Office of Federal Operations

shall review the record and the appellate briefs submitted by all the

parties. The Office of Federal Operations shall

[[Page 17548]]

prepare a recommended decision for consideration by the Commission.

(b) When an administrative law judge certifies a matter for

interlocutory review under Sec. 1603.213, the Commission may, in its

discretion, issue a decision on the matter or send the matter back to

the administrative law judge without decision.

appeal unless the Commission, in its discretion, reopens the record on

appeal.

(d) The decision of the Commission on appeal shall be its final

order and shall be served on all parties.

(e) In the absence of a timely appeal under Sec. 1603.302, the

decision of the administrative law judge under Sec. 1603.217 or a

dismissal under Sec. 1603.107 shall become the final order of the

Commission. A final order under this paragraph shall not have

precedential significance.

Sec. 1603.305 Modification or withdrawal of Commission decision.

At any time, the Commission may modify or withdraw a decision for

any reason provided that no petition for review in a United States

Court of Appeals has been filed.

Sec. 1603.306 Judicial review.

Any party to a complaint who is aggrieved by a final decision under

Sec. 1603.304 may obtain a review of such final decision under chapter

158 of title 28 of the United States Code by filing a petition for

review with a United States Court of Appeals within 60 days after

issuance of the final decision. Such petition for review should be

filed in the judicial circuit in which the petitioner resides, or has

its principal office, or in the United States Court of Appeals for the

District of Columbia Circuit.

[FR Doc. 97-9162 Filed 4-9-97; 8:45 am]

BILLING CODE 6570-06-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.