(a) Certification of compliance. (1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by:
(i) Providing the required interim relief; or
(ii) Satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(2) Evidence of its compliance must accompany its petition for review. Failure by an agency to provide the certification and evidence required by this section with its petition for review may result in the dismissal of the agency's petition for review.
(b) Allegation of noncompliance in petition for review. If an appellant or an intervenor files a petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency's compliance with the interim relief order, the agency must submit evidence within 25 days of the date of service that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). The agency's evidence may be provided with any response to the petition for review or in a separate pleading.
(c) Request for dismissal for noncompliance with interim relief order. If the agency files a petition for review and the appellant believes the agency has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition, or within 25 days of the date upon which the appellant becomes aware that the agency has not provided, or has ceased to provide, interim relief. A copy of the request must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit. Failure by an agency to provide the certification required by paragraph (a) of this section with its petition for review, or to provide evidence of compliance in response to a Board order, may result in the dismissal of the agency's petition for review.
(d) Back pay and attorney fees. Nothing in this section shall be construed to require any payment of back pay for the period preceding the date of the judge's initial decision or attorney fees before the decision of the Board becomes final.
[89 FR 72963, Sept. 9, 2024]
Notes of Decisions
Garilynn Smith v. Dep't of the Army, 2022 MSPB 4 (MSPB 2022).
· cites it 3× “5 C.F.R. § 1201.116 (a). The agency’s failure to provide the required certification may result in the dismissal of the agency’s petition for review.”
Troy Stewart v. Dep't of Transp., 2023 MSPB 18 (MSPB 2023).
· cites it 6× “5 C.F.R. § 1201.116 (a). An appellant may challenge an agency’s certification of compliance with the interim relief order, and an agency’s failure to establish compliance may result in the dismissal of its petition or cross petition for review.”
Lois Starkey v. Dep't of Hous. & Urban Dev., 2024 MSPB 6 (MSPB 2024).
· cites it 6× “315 , ¶ 15 (2015); 5 C.F.R. § 1201.116 (a). The Board’s regulations further contemplate that if an agency fails to submit the required certification with its petition, the Board may, in its discretion, dismiss the agency’s petition for review.”
Kenneth Johnson v. Dep't of Vets. Affairs, 2023 MSPB 9 (MSPB 2023).
· cites it 2× “§ 7701 (b)(2)(A)(ii); 5 C.F.R. § 1201.116 (a). An agency’s failure to provide the required certification or to provide evidence of compliance in response to a Board order may result in the dismissal of the agency’s petition for review.”
Joseph Schmitt v. Dep't of Vets. Affairs, 2022 MSPB 40 (MSPB 2022).
· cites it 2× “Consistent with 5 C.F.R. § 1201.116 (a), the administrative judge instructed the agency that a petition for review must be accompanied by a certification that the agency complied with the interim relief order either by providing interim relief or satisfying the requirements of 5…”
Cory Owens v. Dep't of Homeland Sec., 2023 MSPB 7 (MSPB 2023).
· cites it 2× “11 , ¶ 8; see 5 C.F.R. § 1201.116 (e). In this case, however, we find that the agency’s petition does not meet the criteria for review in any event, and the issuance of our final decision renders moot any dispute concerning the agency’s compliance with the interim relief order.”
Paul v. Connolly v. United States Dep't of Just., 766 F.2d 507 (Fed. Cir. 1985).
· cites it 2× “The board may “[t]ake any other action necessary for final disposition of the case,” 5 C.F.R. § 1201.116 (a)(4), or it “may affirm, reverse, remand, modify or vacate the decision of the presiding official, in whole or in part.”
Hoofman v. Dep't of the Army, 526 F. App'x 982 (Fed. Cir. 2013).
· cites it 2× “5 C.F.R. § 1201.116 (e) (“Failure by an agency to provide the certification required by paragraph (a) of this section with its petition or cross petition for review, or to provide evidence of compliance in response to a Board order .”
Cynthia A. Guillebeau v. Dep't of the Navy, 362 F.3d 1329 (Fed. Cir. 2004).
“The Board’s regulations provide: “If the appellant is not the prevailing party in the final Board order, and if the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under § 1201.”
Norman Dawson v. Merit Sys. Prot. Bd., Off. of Pers. Mgmt., Intervenor, 712 F.2d 264 (7th Cir. 1983).
· cites it 3× “See 5 C.F.R. § 1201.116 (a). 4 Dawson’s argument ignores the fact that the Board informed him by letter dated January 7, 1982 that it had received a petition for review from the Office of Personnel Management and granted Dawson the opportunity to respond to OPM’s petition.”
Earl L. James v. Fed. Energy Regulatory Comm'n, 755 F.2d 154 (Fed. Cir. 1985).
· cites it 2× “This discretionary procedure is, in fact, set forth in 5 C.F.R. § 1201.116 . The court’s assumption was based not only on this regulation, but also on its experience in reviewing prior cases where the board has done more than simply decide the issue stated in a petition for…”
— 5 C.F.R. § 1201.116(e) — 1 case
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