§ 1–606.03a. Appeals of safety-sensitive designations.

(a) An employee may appeal the determination of a personnel authority denying the employee's petition appealing a safety-sensitive position designation, pursuant to § 1-615.03a, to the Office within 30 calendar days after the issuance of the personnel authority's determination or, if this section is not applicable when the personnel authority issues the determination, within 30 calendar days after October 1, 2021.

(b) In any appeal taken pursuant to this section, the Office shall review the record and uphold, reverse, or modify the determination of the personnel authority.

(c) All decisions of the Office on appeals of safety-sensitive designations ("designation decisions") shall include findings of fact and a written decision, as well as the reasons or basis for the decision, upon all material issues of fact and law presented on record, and an order; provided, however, that the Office may affirm a determination of a personnel authority or Hearing Examiner without findings of fact and a written decision. Final designation decisions shall be published in accordance with the rules and regulations of the Office and published on the Office's website. A designation decision shall include a statement of any further process available to the parties including, as appropriate, a party's right to file a petition for review or a petition for enforcement. The Office shall transmit copies of a designation decision to all parties to the appeal, including named parties and intervenors.

(d)(1) In appeals brought pursuant to this section, a Hearing Examiner shall issue an initial designation decision within 60 business days after the appeal is filed with the Office, unless the Hearing Examiner determines that an evidentiary hearing is warranted, in which case the Hearing Examiner shall issue an initial designation decision within 90 business days after the appeal is filed. A Hearing Examiner may permit oral argument only when the Hearing Examiner determines such argument is necessary to resolve matters of law and material fact.

(2) A personnel authority shall file an answer to an appeal within 15 business days after the employee files the appeal. The answer shall include the complete record of the proceedings before the personnel authority, including any documentary evidence reviewed or considered in rendering the determination. The employee may file a reply within 5 business days after the personnel authority files its answer.

(3) A Hearing Examiner may grant an extension of a deadline set forth in paragraph (1) or (2) of this subsection only where extraordinary circumstances prevent the meeting of the deadline and the need for the extension outweighs any prejudice to a party. If a Hearing Examiner determines that dilatory actions of a party contributed to the need for an extension, the Hearing Examiner may, in the Hearing Examiner's discretion, draw inferences against the offending party.

(4) A Hearing Examiner shall review the question of whether an employee's position is safety-sensitive without deference to the agency's designation or the personnel authority's determination. The employee shall bear the burden of establishing jurisdictional facts by a preponderance of the evidence. To prevail, the personnel authority must establish, by a preponderance of the evidence, that the employee's position meets the definition of safety-sensitive, as defined in § 1-603.01(15B).

(5)(A) The initial designation decision of a Hearing Examiner shall become final 15 business days after issuance unless a party files a petition for review of the initial designation decision with the Office within the 15 business-day period. The responding party may file an answer to the petition for review within 15 business days after the petition for review is filed. The Office shall issue a final designation decision on a petition for review within 60 business days after the petition for review is filed. If the Office denies all petitions for review, the initial designation decision shall become final upon the issuance of the last denial. If the Office grants a petition for review, the subsequent designation decision of the Office shall be the final designation decision of the Office unless the decision states otherwise.

(B) After issuing the initial designation decision, the Hearing Examiner shall retain jurisdiction over the case only to the extent necessary to correct the record, rule on a motion for attorney fees, or process any petition for enforcement filed under the authority of the Office.

(e) A final designation decision of the Office issued pursuant to this section is not subject to judicial review.

(f) The Office may issue such rules and regulations as it considers practicable or desirable to govern appeals under this section.