[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1210.21]

[Page 95-96]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1210_DEPARTMENT OF HOMELAND SECURITY HUMAN RESOURCES MANAGEMENT SYSTEM--
 
Subpart B_Procedures for Appeals of Actions Taken Under 5 CFR Part 9701, 
                                Subpart F
 
Sec. 1210.21  Initial decision by the adjudicating official.

    (a) General. The adjudicating official must issue a decision after 
the close of the record and a copy of the decision must be provided to 
each party to the appeal and to the Director. An initial decision must 
be issued no later than 90 days after the date on which the appeal is 
filed. However, failure to meet this deadline will not prejudice any 
party to the case and will not form the basis for any legal action by 
any party. See 5 CFR 9701.706(l). A document that is filed with a Board 
office by personal delivery is considered filed on the date on which the 
Board office receives it. The date of filing by facsimile is the date of 
the facsimile. The date of filing by mail is the date on the Board's 
acknowledgment order, and the Board must issue an acknowledgment order 
within five calendar days after receiving the appeal. The date of filing 
by commercial delivery is the date the document was delivered to the 
commercial delivery service. The date of filing by e-filing is the date 
of electronic submission.
    (b) Consideration of penalty. The adjudicating official may modify 
the penalty imposed by the Department if he or she determines that such 
penalty is so disproportionate to the basis for the action as to be 
wholly without justification. In cases of multiple charges, the 
adjudicating official's determination in this regard is based on the 
justification for the penalty as it relates to the sustained charge(s). 
When a penalty is mitigated, the maximum justifiable penalty must be 
applied.
    (c) Interim relief. (1) If an employee is the prevailing party in an 
appeal under this subpart, the employee must be granted the relief 
provided in the decision upon issuance of the decision, subject to 
paragraph (b)(3) of this section. Such relief remains in effect pending 
the outcome of any petition for review unless--
    (i) An adjudicating official determines that the granting of such 
relief is not appropriate; or
    (ii) The relief granted in the decision provides that the employee 
will return or be present at the place of employment pending the outcome 
of any petition for review, and the Department,

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subject to paragraph (b)(2) of this section, determines, in its sole, 
exclusive, and unreviewable discretion, that the return or presence of 
the employee would be unduly disruptive to the work environment.
    (2) If the Department makes a determination under paragraph 
(b)(1)(ii) of this section that prevents the return or presence of an 
employee at the place of employment, such employee must receive pay, 
compensation, and all other benefits as terms and conditions of 
employment pending the outcome of any petition for review.
    (3) Nothing in the provisions of this section may be construed to 
require that any award of back pay or attorney fees be paid before the 
decision is final.