2 U.S.C. § 1406

Appeal to Board

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(a) In general

Any party aggrieved by the decision of a hearing officer under section 1405(g) of this title may file a petition for review by the Board not later than 30 days after entry of the decision in the records of the Office.

(b) Parties’ opportunity to submit argument

The parties to the hearing upon which the decision of the hearing officer was made shall have a reasonable opportunity to be heard, through written submission and, in the discretion of the Board, through oral argument.

(c) Standard of reviewThe Board shall set aside a decision of a hearing officer if the Board determines that the decision was—(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;(2) not made consistent with required procedures; or(3) unsupported by substantial evidence.(d) Record

In making determinations under subsection (c), the Board shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

(e) Decision

The Board shall issue a written decision setting forth the reasons for its decision. The decision may affirm, reverse, or remand to the hearing officer for further proceedings. A decision that does not require further proceedings before a hearing officer shall be entered in the records of the Office as a final decision.

(Pub. L. 104–1, title IV, § 406, Jan. 23, 1995, 109 Stat. 35.)

Notes of Decisions

Cited in 8 cases, 2003–2020 · leading case: Banks v. Off. of Senate Sergeant-At-Arms, 222 F.R.D. 7 (D.D.C. 2004).

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Banks v. Off. of Senate Sergeant-At-Arms, 222 F.R.D. 7 (D.D.C. 2004). “2 U.S.C.A. § 1406 (1997). Appeal of the decisions from this Board lies in the United States Court of Appeals for the Federal Circuit.”

Waters v. United States Capitol Police Bd., 216 F.R.D. 153 (D.D.C. 2003). “2 U.S.C.A. § 1406 (1997). Appeal of the decisions from this Board lies in the United States Court of Appeals for the Federal Circuit.”

Sherry M. Britton v. Off. of Compliance, & Off. of Architect of the Capitol, 412 F.3d 1324 (Fed. Cir. 2005). · cites it 2× “Analysis This case presents two issues of timeliness: (1) whether Britton requested counseling early enough to avoid dismissal of her claim for FMLA leave for April 13 and 14, and (2) whether 2 U.S.C. § 1406 (a) and section 1.03 of the Office of Compliance’s Rules of Procedure…”

Combat Vets. for Cong. Political Action Comm. v. Fed. Election Comm'n, 983 F. Supp. 2d 1 (D.D.C. 2013). “, 2 U.S.C. § 1406 (“The parties ... shall have a reasonable opportunity to be heard, through written submission and, in the discretion of the Board, through oral argument.”

Sherry M. Britton v. Off. Of Compliance & Architect of the Capitol (Fed. Cir. 2005). · cites it 2× “Analysis This case presents two issues of timeliness: (1) whether Britton requested counseling early enough to avoid dismissal of her claim for FMLA leave for April 13 and 14, and (2) whether 2 U.S.C. § 1406 (a) and section 1.03 of the Office of Compliance’s Rules of Procedure…”

MacOn v. Ooc (Fed. Cir. 2017). “Macon ap- pealed to the Office’s Board of Directors under 2 U.S.C. § 1406 . The Board affirmed the Hearing Officer’s findings and legal conclusions.”

Kabakova v. Off. of the Architect of the Capitol (D.D.C. 2020). “Under the scheme in place at the time, if the plaintiff disagreed with the hearing officer’s decision to permit withdrawal with prejudice, her recourse was to appeal the hearing officer’s order to the Board of Directors of the Office of Compliance, see 2 U.S.C. § 1406 (1995),…”

Macon v. Off. of Compliance, 694 F. App'x 789 (Fed. Cir. 2017). “Macon appealed to the Office’s Board of Directors under 2 U.S.C. § 1406 . The Board affirmed the Hearing Officer’s findings and legal conclusions.”

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