(a) Right of appeal. An employee who has been furloughed for more than 30 days, separated, or demoted by a reduction-in-force action taken under this part may appeal that action to OPM.

(b) Burden of proof. The employee (i.e., appellant) bears the burden of proof to demonstrate, by a preponderance of the evidence:

(1) The timeliness of the written appeal;

(2) That OPM possesses jurisdiction over the appeal;

(3) That the agency failed to comply with an applicable statute or OPM regulation governing reduction-in-force actions under this part; and

(4) That the failure prejudiced the appellant by causing the appellant to be subjected to the appealed action or to lose a materially more favorable outcome under this part.

(c) Exclusive appeal procedure. (1) The procedures in this subpart are the sole and exclusive means of appealing a reduction-in-force action taken under this part.

(2) A reduction-in-force action taken under this part, and any matter relating to an appeal of such an action, may not be raised under a negotiated grievance procedure or contested through grievance arbitration.

(3) Paragraphs (c)(1) and (2) of this section do not preclude an employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, an Inspector General, the Merit Systems Protection Board, the Department of Labor Veterans' Employment and Training Service, or the Office of Special Counsel.

(4) A party cannot obtain judicial review of a decision under this subpart.

(a) Filing an appeal. A party, or his or her authorized representative, seeking to file an initial appeal or reconsideration of an initial decision under this subpart must utilize the electronic filing system identified on OPM's website. Unless a party demonstrates good cause and seeks approval from OPM, OPM will not accept any pleadings, evidence, or documents via electronic mail or postal mail.

(b) Time limits. An employee may submit an appeal of a reduction-in-force action within 30 calendar days from the effective date of the action. An appeal is deemed timely when it is electronically filed by 11:59 p.m. Eastern Time on the 30th calendar day after the effective date of the action.

(1) In computing the number of days allowed for filing an appeal, the first day counted is the day after the effective date of an agency action. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date.

(2) If an employee does not submit an appeal within the time set by this section, the appeal will be dismissed as untimely filed unless the employee demonstrates good cause for an untimely appeal. The determination of good cause will be in the sole and exclusive discretion of OPM.

(3) If, before the expiration of the filing period in this paragraph (b), the employee timely filed a complaint, appeal, or other matter within the independent jurisdiction of an entity identified in § 351.901(c)(3), and the final decision on that matter materially affects the employee's retention standing, order of release, assignment rights, or other rights under this part, the employee may file an appeal under this subpart within 30 calendar days after the date on which the decision on that matter becomes final and is no longer subject to further administrative review. OPM will determine, in its sole and exclusive discretion, whether the decision on the collateral matter materially affects the employee's rights under this part.

(c) E-filing procedures. (1) All parties and their representatives to an appeal or reconsideration must register as instructed by OPM on its e-filing website using a unique email address.

(2) Registration as an e-filer constitutes consent to accept electronic service of pleadings, evidence, notices, orders, and other documents filed by other e-filers or issued by OPM. No party may electronically file any document with OPM or access an appeal or reconsideration of an appeal unless registered as an e-filer or exempted under paragraph (c)(7) of this section for good cause.

(3) All notices, orders, decisions, and other documents issued by OPM, as well as all documents filed by parties, will be made available for viewing and downloading at OPM's electronic filing system. Access to documents is limited to the parties and their representatives who are registered e-filers in the cases in which they were filed.

(4) All parties and their representatives must follow the instructions on OPM's website for properly filing all pleadings, evidence, and other documents. OPM may strike a document where an e-filer repeatedly fails to follow these instructions following receipt of a show cause order.

(5) Each e-filer must promptly update their profile in OPM's electronic filing system and notify OPM and other parties of any change in their address, telephone number, or email address by filing a pleading in each pending case with which they are associated. E-filers are responsible for monitoring case activity regularly in OPM's electronic filing system to ensure that they have received all case-related documents.

(6) A party or representative may withdraw their registration as an e-filer pursuant to the requirements posted on OPM's website. Withdrawing registration in OPM's e-filing system means that, effective upon OPM's processing of a proper withdrawal, pleadings, evidence, orders, and other documents filed by a party, a party's representative, or OPM will no longer be served on that person electronically and that person will no longer have electronic access to their case records through OPM's e-filing system. OPM may still process an appeal or request for reconsideration after a party withdraws as an e-filer. Withdrawal of e-filing registration by a party or representative will not be considered good cause for staying a case.

(7) OPM, in its sole and exclusive discretion, may exempt a party or representative from registering as an e-filer for good cause. A party or representative must promptly contact OPM as instructed on OPM's website to request an exemption from the e-filing requirements in this part. OPM will not find good cause for failing to timely file an appeal or seek reconsideration if the party or representative fails to contact OPM to request an exemption before any deadline to appeal or seek reconsideration.

(8) Documents filed in OPM's e-filing system are deemed received on the date of the electronic submission.

(a) Initial appeal. An employee's appeal shall be in writing and shall state the basis of the employee's appeal; the name, address, and email address or phone number of the appellant and appellant's representative, if any; and any documentation supporting the appellant's appeal.

(b) Agency response. (1) The agency response to an appeal must be filed within 30 calendar days after service of the initial appeal and contain:

(i) The name of the appellant and of the agency whose action the appellant is appealing;

(ii) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action;

(iii) All documents contained in the agency record of the action;

(iv) Designation of and signature by the authorized agency representative; and

(v) Any other documents or responses requested by OPM.

(2) The agency's 30 days to respond begins upon service of the appeal.

(3) The agency record of the action shall include, at a minimum:

(i) The appellant's specific written reduction-in-force notice, any amended notice, proof of service or receipt, and documents showing the effective date of the action;

(ii) Documents supporting the reason for the reduction in force, including whether the action was based on lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or the exercise of reemployment or restoration rights;

(iii) Documents establishing the appellant's coverage, position, appointment, tenure group and subgroup, veterans' preference status, service computation date, work schedule, competitive area, competitive level, and status as a competing employee;

(iv) Documents establishing the competitive area and competitive level used for the reduction in force, including any required agency or OPM approval, written competitive area justification, organizational chart, position descriptions, classification records, representative rate determinations, and related records;

(v) The retention register applicable to the appellant, if one was prepared, and any related retention records that affected the appellant's retention standing, order of release, or assignment rights, including records supporting performance credit, veterans' preference credit, tenure subgroup, and service computation date;

(vi) Documents showing how the agency applied the order of release, including any tie determination, any correction of retention standing, and any mandatory or discretionary exception to the order of release;

(vii) Documents concerning the appellant's assignment rights, if any, including positions considered for assignment, qualification determinations, job analysis or assessment materials, offers of assignment, and any declination;

(viii) Documents concerning any special reduction-in-force circumstance relevant to the appellant, including abolishment of an entire competitive area, transfer of function, exclusion from RIF competition under § 351.202(d), restoration protection, or other basis for modified notice or treatment under this part; and

(ix) A certification that the agency has produced the complete agency record of the reduction-in-force action.

(4) The agency must produce the complete agency record to OPM. The agency must serve the appellant with the agency record, except that the agency may redact or withhold information from the copy served on the appellant to the extent necessary to comply with the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law.

(c) Reply. An employee may file a reply to an agency response to an initial appeal within 15 calendar days of the agency response. The reply may only address the factual and legal issues raised by the agency in response to the initial appeal. The reply may not raise new allegations of error unless the basis rests on information first disclosed in the agency response or unless OPM grants leave for good cause.

(d) Inspection of OPM's appellate record. The employee, an employee's representative, and the agency will be permitted to inspect OPM's appellate record on request, subject to the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law.

(e) Service of documents. The employee, employee's representative, and agency will serve on each other copies of any and all information submitted to OPM with respect to an appeal, subject to the Privacy Act, applicable legal privileges, classified information or national security requirements, protective orders issued by OPM, and any other applicable limitation on disclosure required by law. Such information must be served on all other parties at the same time the information is submitted to OPM and must be accompanied by a certificate of service stating how and when service was made.

(f) Untimely filings. Untimely filings may be accepted upon a party's showing of good cause at the sole and exclusive discretion of OPM.

(a) Designation of representative. An appellant may select a representative of his or her choice to assist in the preparation and presentation of an appeal, provided that the employee submits his or her designation of representative in writing related to the specific appeal.

(b) Federal employee representatives; official time and reimbursement. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function.

(c) Disallowance of representative. OPM or the agency whose action is under appeal may, in its sole and exclusive discretion, disallow an employee's choice of representative when the representative is an employee of that agency or OPM and the representative's activities would cause a conflict of interest or position.

(a) Appeals by non-OPM employees. OPM will assign personnel to adjudicate an appeal under this subpart by an employee of an agency other than OPM. OPM personnel assigned to adjudicate an appeal under this subpart shall be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action. OPM adjudicators shall not consider material ex parte communications concerning the merits of an appeal. If such a communication occurs, OPM will place a summary of the communication in the record and provide the parties a reasonable opportunity to respond, unless disclosure is prohibited by law. In addition, no OPM employee may be assigned to adjudicate an appeal if the employee has a relationship with the appellant or, during the preceding two years, that person was an employee of the agency that is a party to the action to be assigned, or the employee was subject to an action covered under this part. When necessary, OPM may assign an administrative law judge to preside over the adjudication of an appeal.

(b) Appeals by OPM employees. OPM will assign an administrative law judge to adjudicate an appeal under this subpart by an OPM employee and to issue an initial decision. To insulate the adjudication of its own employees' appeals from agency involvement, OPM will not disturb initial decisions in those cases unless a party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge, a clear error of law, or a material factual error that affected the outcome of the appeal. For purposes of this paragraph (b), the term harmful procedural irregularity means an irregularity in the application of procedures that was likely to have caused the administrative law judge to reach a conclusion different from the one he or she would have reached in the absence or cure of the irregularity. The assignment of an administrative law judge under paragraph (b) or under paragraph (a) of this section does not make 5 U.S.C. 554, 556, or 557 applicable to an appeal under this subpart except to the extent those provisions are independently required by law or expressly incorporated in this part.

(c) Ascertainment of facts. OPM may require either party to provide additional information, and it may audit or investigate an agency's action in the course of adjudicating an appeal if it determines, in its sole discretion, that the existing record is insufficient to resolve a material issue within OPM's jurisdiction, and that the audit or investigation is reasonably likely to produce information material to resolving that issue. An individual serving as a representative of either party may not participate in an audit or investigation unless OPM specifically requests them to do so. The review of an agency action must be based solely on the developed written record unless OPM determines that a hearing is necessary and efficient in resolving an appeal. For purposes of this section, the phrase necessary and efficient means circumstances in which the written record is insufficiently developed to make a determination regarding one or more facts material to the outcome of the appeal, or where there is a disputed issue of witness credibility that is material to the outcome of the appeal. Where an investigation or audit is conducted, OPM will:

(1) Inform the employee, the employee's representative, and the agency of an investigation or audit; and

(2) Provide the employee, the employee's representative, and the agency with the results of an investigation or audit, and a reasonable opportunity to submit arguments or additional information to support their positions.

(d) Initial decision. OPM will notify the employee, employee's representative, and agency in writing of its decision.

(e) Remedies. (1) If the employee is the prevailing party, OPM will order relief including correction of the personnel action and any back pay, interest, and reasonable attorney fees consistent with subpart H of part 550 of this chapter. The employee as a prevailing party is not entitled to compensatory damages or other relief not authorized under 5 U.S.C. 5596(b).

(2) If the agency timely requests reconsideration of an initial decision or OPM reopens and reconsiders an initial decision, the agency must continue to provide the relief ordered unless OPM issues an order staying any such relief. No such stay may be ordered that would deprive the employee of pay and benefits while the initial decision is pending reconsideration.

(a) Cease-and-desist directive. OPM may issue a protective order or cease-and-desist directive to protect the integrity of the adjudicatory process, prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information, or misuse of nonpublic information obtained through the appeal. OPM may do this sua sponte, or at the request of a party, preemptively or at any juncture in the appeal process. A party requesting OPM to issue a protective order or cease-and-desist directive should file such request using the e-filing procedures prescribed at § 351.902(c), and must include a statement of reasons justifying the request, together with any relevant documentary evidence. Any protective order issued by OPM must be no broader than reasonably necessary and must not restrict lawful communications protected by law.

(b) Failure to comply with an OPM directive. When a party to an appeal fails to comply with a directive issued under paragraph (a) of this section, OPM may, except when prohibited by law:

(1) Draw all inferences in opposition to the noncompliant party with regard to the appeal in question;

(2) Prohibit the noncompliant party from introducing evidence, or additional evidence, concerning the appeal, or otherwise relying on the record; or

(3) Eliminate from consideration any appropriate part of the filings or other submissions of the noncompliant party.

(c) Scope of sanctions. Any sanction issued under paragraph (b) of this section must be proportionate, causally related to the violation, and no broader than necessary to protect the adjudicatory process.

(a) Upon a request from either party to the dispute or upon its own initiative, OPM may, in its sole and exclusive discretion, reopen and reconsider an initial decision issued under this subpart. An employee, the employee's representative, or the agency may request reconsideration of an initial decision within 30 calendar days from issuance of the initial decision. The request for reconsideration must be filed in the same manner as an initial appeal.

(b) Grounds for which OPM may grant a request for reconsideration are:

(1) The initial decision contains erroneous findings of material fact sufficient to warrant an outcome different from that of the initial decision;

(2) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The party must explain how the error affected the outcome of the case;

(3) New and material evidence or legal argument is available that, despite the party's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed; or

(4) OPM finds good cause to reconsider an appeal.

(c) In any case that is reopened or reviewed, OPM may:

(1) Issue a reopened and reconsidered decision (“R&R decision”) that affirms, reverses, modifies, vacates, or otherwise decides the case, in whole or in part;

(2) Require the parties to submit argument and evidence;

(3) Take any other action necessary for final disposition of the case; and

(4) Issue an order with a date for compliance with the R&R decision.

(d) There is no further right of administrative appeal from the R&R decision.

The Director may, on the Director's own initiative and before a decision becomes final under § 351.909, reopen and reconsider any initial decision or reopened and reconsidered decision. In determining whether to exercise this authority, the Director may consider, among other things, whether the decision contains clear legal error; rests on an erroneous finding of material fact; involves an issue of exceptional importance, an issue affecting the governmentwide administration of the civil service laws, rules, regulations, or OPM policy, or a conflict among OPM decisions; or otherwise warrants Director review. This section does not create a right to request Director review. Upon reopening and reconsideration, the Director may take any action described in § 351.907(c).

(a) The initial decision becomes OPM's final decision 30 calendar days after issuance unless, before that time, a party timely requests reopening and reconsideration under § 351.907 or the Director reopens the decision under § 351.908.

(b) A timely request under § 351.907 suspends finality. If OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes OPM's final decision 30 calendar days after issuance of the denial or dismissal, unless the Director reopens the initial decision under § 351.908 before that time. If OPM grants the request, a reopened and reconsidered decision becomes OPM's final decision 30 calendar days after issuance unless the Director reopens that decision under § 351.908 before that time.

(c) An untimely request under § 351.907 does not suspend or otherwise affect finality. If OPM accepts and grants an untimely request for good cause, any resulting reopened and reconsidered decision becomes final as provided in paragraph (b) of this section.

(d) A decision by the Director pursuant to § 351.908 that disposes of the appeal is OPM's final decision and is effective upon issuance. If the Director remands the appeal or directs further proceedings, any resulting decision becomes final under this section.

(e) There is no further right of appeal of a final decision of OPM.

(f) Subject to applicable legal limits, including requirements protecting privacy, privileged information, protected personal information, law-enforcement-sensitive information, and other information that may not lawfully be disclosed, OPM shall maintain a publicly accessible website containing final decisions issued under this subpart that address a party's claim on the merits. Any final merits decision not made publicly available because of such legal limits shall be made available upon request to the Federal employee or former Federal employee involved in a proceeding under this subpart, his or her representative selected pursuant to § 351.904, or a representative of the Federal agency or office involved in the proceeding who has a need to know.