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Last revision: April 10, 1992
§1614.305 Consideration procedures.
(a) Once a petition is filed, the Commission will examine it and
determine whether the Commission will consider the decision of the
MSPB. An agency may oppose the petition, either on the basis that the
Commission should not consider the MSPB's decision or that the
Commission should concur in the MSPB's decision, by filing any such
argument with the Office of Federal Operations and serving a copy on
the petitioner within 15 days of receipt by the Commission.
(b) The Commission shall determine whether to consider the
decision of the MSPB within 30 days of receipt of the petition by the
Commission's Office of Federal Operations. A determination of the
Commission not to consider the decision shall not be used as evidence
with respect to any issue of discrimination in any judicial proceeding
concerning that issue.
(c) If the Commission makes a determination to consider the
decision, the Commission shall within 60 days of the date of its
determination, consider the entire record of the proceedings of the
MSPB and on the basis of the evidentiary record before the Board as
supplemented in accordance with paragraph (d) of this section, either:
(1) Concur in the decision of the MSPB; or
(2) Issue in writing a decision that differs from the decision of
the MSPB to the extent that the Commission finds that, as a matter of
(i) The decision of the MSPB constitutes an incorrect
interpretation of any provision of any law, rule, regulation, or
policy directive referred to in 5 U.S.C. 7702(a)(1)(B); or
(ii) The decision involving such provision is not supported by the
evidence in the record as a whole.
(d) In considering any decision of the MSPB, the Commission,
pursuant to 5 U.S.C. 7702(b)(4), may refer the case to the MSPB for
the taking of additional evidence within such period as permits the
Commission to make a decision within the 60-day period prescribed or
provide on its own for the taking of additional evidence to the extent
the Commission considers it necessary to supplement the record.
(e) Where the EEOC has differed with the decision of the MSPB
under 1614.305(c)(2), the Commission shall refer the matter to the