39.2.2  Handling Cases

39.2.2.1  (08-11-2004)
Merit Systems Protection Board Cases

  1. The Associate Chief Counsel (General Legal Services) (GLS) function will represent the Service and Counsel management when there is an appeal of an Agency action or an appeal based on whistle-blowing to the Merit Systems Protection Board.

39.2.2.1.1  (08-11-2004)
Prehearing Procedures

  1. Upon receipt of an employee’s petition for appeal and acknowledgment order from the Merit Systems Protection Board, the Area Counsel (GLS) will assign a GLS attorney to the case. The assigned GLS attorney shall, consistent with any existing memorandum of understanding and office practice, notify the appropriate servicing labor or employee relations office and client organization to advise them of the receipt of the case.

  2. The GLS attorney shall review the employee’s petition for appeal and attachments (if any) and handle the Merit Systems Protection Board appeal in accordance with 5 C.F.R. § 1201 et seq., and any other applicable guidance.

  3. Upon receipt of the employee’s petition for appeal and Acknowledgment Order from the Merit Systems Protection Board, the assigned GLS attorney shall ensure compliance with any orders contained therein and all pertinent regulatory requirements. Examples include:

    • Filing an agency response including, when appropriate, a Motion for Lack of Board Jurisdiction

    • Initiating discovery consistent with regulation, specifically 5 C.F.R. § 1201.71

    • Engaging in settlement discussions

  4. The agency’s response to the petition for appeal must meet the time limit set forth in 5 C.F.R. § 1201.22. The response must also meet the requirements of 5 C.F.R. § 1201.25. It shall be noted that in the event the appellant has either not requested a hearing or subsequently withdraws an earlier request, the agency’s response shall, when appropriate, contain a request for a hearing and the reasons therefore, e.g., when it is necessary to resolve credibility issues.

  5. The GLS attorney shall prepare the case for hearing including determining the facts, identifying and interviewing prospective witnesses, and identifying and gathering necessary documents.

  6. The GLS attorney shall use discovery to facilitate the preparation of the case. A decision not to engage in discovery in any particular case must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP.

  7. In all aspects of hearing preparation and litigation, the GLS attorney will insure that any disclosure of tax return and return information is consistent with I.R.C. § 6103(l)(4). Additionally, the GLS attorney will exercise caution in not disclosing information that would violate the Privacy Act.

39.2.2.1.2  (08-11-2004)
Merit Systems Protection Board Cases without a Hearing

  1. If the appeal is to be decided without a hearing, the GLS attorney shall ensure that:

    1. In an adverse action case, an affidavit or unsworn declaration is obtained from the Deciding Official explaining how the Douglas factors were considered and weighed in making the decision.

    2. Affidavits or unsworn declarations are obtained from any Agency witness who can support the Agency’s case or refute allegations made by the Appellant.

    3. All documentary evidence not previously provided in the Agency Response File is submitted to the Administrative Judge and requested to be accepted as Agency exhibits.

    4. A closing statement is presented which clearly sets forth the Agency’s case, references the Agency’s exhibits, refutes the Appellant’s case as much as possible, and which includes supportive case law.

39.2.2.1.3  (08-11-2004)
The Merit Systems Protection Board Hearing

  1. The GLS attorney shall be prepared to make both opening and closing statements. The GLS attorney will always consider the filing of a post-hearing brief and must request permission from the Administrative Judge to do so should the filing of a post hearing brief be desired. The decision to not file a post-hearing brief shall be approved by the Area Counsel (GLS).

  2. At hearing, the GLS attorney shall introduce relevant documentary and testimonial evidence which supports the Service’s or Counsel’s case.

  3. The deciding official of an adverse action generally will testify at the Merit Systems Protection Board hearing to explain how the Douglas factors were considered and weighed in making the decision and with respect to other relevant matters. Exceptions to providing the actual testimony of the deciding official should be rare and only in those instances when it is determined the testimony is not in the best interest of the case. The decision not to have the deciding official testify must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP.

39.2.2.1.4  (08-11-2004)
Appeals

  1. The Merit Systems Protection Board regulations governing appeals are found at 5 C.F.R. Part 1201, Subpart C.

  2. Appeals of Decisions Adverse to the Agency. In the event that a decision is adverse to the agency’s position, the GLS attorney shall:

    1. Promptly review the decision to determine whether grounds for review or appeal exist and determine the applicable time frames for review or appeal.

    2. Consult with the appropriate client organizations which have final authority for deciding whether to appeal and with the servicing labor or employee relations offices.

    3. Prepare a written appeal for filing, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and Associate Chief Counsel (GLS) or designee (consultation with the Chief, CLP, is required in seeking review or appeal of cases that require the involvement of the General Counsel’s Office, Department of the Treasury, Office of Personnel Management, the Department of Justice (DOJ), or when a significant case).

    5. Ensure compliance with General Counsel Order No. 10.

    6. Ensure that any appeal to the Court of Appeals or higher has the approval of the Chief Counsel or Chief Counsel’s delegate.

  3. Appeals by Opposing Party. In the event that an appeal is filed by an opposing party after a decision favorable to the Service or Counsel has been made, the GLS attorney shall:

    1. Promptly review the appeal to determine the extent of the Agency’s response and to determine the applicable time frames for responding to the appeal.

    2. Consult with the appropriate servicing labor or employee relations offices and client organizations.

    3. Prepare a response to the appeal, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

39.2.2.1.5  (08-11-2004)
Settlement of Merit Systems Protection Board Cases

  1. See CCDM 39.2.2.6, Procedures for Settlement of Labor and Personnel Litigation Cases.

39.2.2.2  (08-11-2004)
Arbitration Cases

  1. The Associate Chief Counsel (GLS) function represents IRS and Counsel management when arbitration is invoked in either a contract grievance or in a disciplinary/adverse action.

39.2.2.2.1  (08-11-2004)
Prehearing Procedures

  1. Upon receipt of an arbitration invocation in either a contract grievance or in a disciplinary/adverse action case, the Area Counsel (GLS) will assign a GLS attorney to the case. The assigned GLS attorney will, consistent with any existing memorandum of understanding and office practice notify the appropriate servicing labor or employee relations office and client organization to advise them of the receipt of the arbitration invocation.

  2. The assigned GLS attorney will handle the arbitration in accordance with the applicable collective bargaining agreement and any other applicable guidance.

  3. Consistent with any existing memorandums of understanding and applicable office practice, the GLS attorney shall take the following steps to obtain the services of an arbitrator.

    1. The appropriate servicing labor or employee relations office shall be contacted to procure the services of the assigned arbitrator. See Exhibit 39.2.2-1 for a sample confirmation memorandum to the labor relations office.

    2. The GLS attorney shall insure that the arbitrator’s services have been properly procured in advance of the arbitrator providing any services or the agency incurring any charges. See Exhibit 39.2.2-2 for a sample confirmation letter to the arbitrator.

    3. The GLS attorney shall also ensure that the servicing labor or employee relations office secures a purchase order to pay for any other applicable costs incurred by the arbitration (i.e., court reporter fees, cost of hearing transcript).

  4. The assigned GLS attorney will coordinate with the attorney or National Field Representative handling the case for the National Treasury Employees Union (NTEU) to determine tentative date(s) and location for the arbitration hearing. The GLS attorney or the NTEU attorney/National Field Representative will then contact the arbitrator with the proposed date(s) and location of the hearing. Once the date(s) and location of the arbitration have been agreed to by the parties and the arbitrator, the GLS attorney will notify the servicing labor or employee relations office of the date(s) and location of the hearing.

  5. The assigned GLS attorney shall ensure that the servicing labor or employee relations office makes arrangements for a suitable hearing room and a court reporter (if needed) for the date(s) the hearing has been scheduled.

  6. The assigned GLS attorney shall prepare the case for hearing including determining the facts, identifying and interviewing prospective witnesses and identifying and gathering necessary documents.

  7. If the services of a bargaining history witness is required, arrangements for his/her appearance will be coordinated with the Office of Workforce Relations in the Headquarters Office for Service cases and with the Associate Chief Counsel (F&M) for Counsel cases prior to setting the date for the hearing. The GLS attorney must ensure that the NTEU attorney or National Field Representative is informed that bargaining history will be part of the Agency’s case.

  8. Consistent with any existing memorandums of understanding and applicable office practice, the GLS attorney shall be prepared to respond to information requests made by the Union per 5 U.S.C. § 7114(b)(4), and to coordinate with the servicing labor or employee relations office and other offices as appropriate.

  9. In all aspects of hearing preparation and litigation, the GLS attorney will insure that any disclosure of tax return and return information is consistent with I.R.C. § 6103(l)(4). Additionally, the GLS attorney will exercise caution in not disclosing information that would violate the Privacy Act.

  10. The GLS attorney must prepare in writing the issue which he or she believes should be presented to the arbitrator for resolution. An attempt to reach agreement on the issue with opposing NTEU counsel or National Field Representative shall be made. If an agreement cannot be reached, the parties will submit separate statements of the issue to the arbitrator.

39.2.2.2.2  (08-11-2004)
The Arbitration Hearing

  1. Any issues of arbitrability or grievability will normally be addressed initially at the hearing prior to review of the merits under consideration.

  2. The GLS attorney shall be prepared to make both opening and closing statements.

  3. At hearing, the GLS attorney will introduce relevant documentary and testimonial evidence which supports the Service’s or Counsel’s case.

  4. The deciding official of a disciplinary or adverse action generally will testify at the arbitration hearing to explain how the Douglas factors were considered and weighed in making the decision and with respect to other relevant matters. Exceptions to providing the actual testimony of the deciding official will be rare and only in those instances when it is determined the testimony is not in the best interest of the case. The decision not to have the deciding official testify must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP.

  5. At the close of the hearing, the GLS attorney will ensure the dates for submission of post-hearing briefs to the Arbitrator are established when applicable under the provisions of the collective bargaining agreement.

39.2.2.2.3  (08-11-2004)
Appeals

  1. Appeals of Decisions Adverse to the Agency. In the event that a decision is adverse to the agency’s position, the GLS attorney shall:

    1. Promptly review the decision to determine whether grounds for review or appeal exist and determine the applicable time frames for review or appeal.

    2. Consult with the appropriate client organizations which have final authority for deciding whether to appeal and with the servicing labor or personnel relations offices.

    3. Prepare a written appeal for filing.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee (consultation with the Chief, CLP is required in seeking review or appeal of cases that require the involvement of the General Counsel’s Office, Department of the Treasury, Office of Personnel Management, DOJ, or when it is a significant case).

    5. Ensure compliance with General Counsel Order No. 10.

    6. Ensure that any appeal to the Court of Appeals or higher has the approval of the Chief Counsel or Chief Counsel’s delegate.

  2. Appeals by Opposing Party. In the event that an appeal is filed by an opposing party after a decision favorable to the Service or Counsel has been made, the GLS attorney shall:

    1. Promptly review the appeal to determine the extent of the Agency’s response and to determine the applicable time frames for responding to the appeal.

    2. Consult with the appropriate servicing labor or personnel relations offices and client organizations.

    3. Prepare a response to the appeal, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

39.2.2.2.4  (08-11-2004)
Settlement of Arbitration Cases

  1. See CCDM 39.2.2.6, Procedures for Settlement of Labor and Personnel Litigation Cases.

39.2.2.3  (08-11-2004)
Unfair Labor Practice Cases

  1. Upon receipt of a charge, the Area Counsel (GLS) will assign a GLS attorney to the case. The assigned GLS attorney will, consistent with any existing memorandum of understanding and office practice, notify the appropriate servicing labor relations office and client organization to advise them of the receipt of the charge.

  2. The GLS attorney will represent IRS or Counsel management in handling the unfair labor practice charge in accordance with 5 C.F.R. § 2423 and any other applicable guidance.

  3. Upon receipt of a charge, the GLS attorney assigned to the case must notify the Federal Labor Relations Authority (FLRA) Regional Director by letter of the designation of the agency representative. This letter will also advise the Regional Director that all requests for information, documents, and interviews of agency employees will be made through the GLS attorney.

  4. The GLS attorney assigned to the case will promptly review the charge. The GLS attorney will investigate the case to determine the facts, identify and interview prospective witnesses, and identify and gather necessary documents.

  5. The GLS attorney will generally file a position paper in response to an unfair labor practice charge. Any decision by the GLS attorney to not file a response must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP. If a response is filed, it will be filed with the FLRA Regional Director and should not be served on the union group of employees, or individual employee.

  6. When an investigator from the FLRA Regional Director’s office requests to interview a bargaining unit employee, the GLS attorney will notify the servicing labor relations office so that appropriate arrangements can be coordinated with the employee’s immediate supervisor. If the investigator requests to interview a management employee, the GLS attorney must determine whether it is in the interest of the case to grant such request. If the GLS attorney decides to grant the investigator’s request for an interview, the GLS attorney will advise the management employee not to participate in an interview without the presence of counsel and will brief the management employee prior to the interview as to the areas likely to be discussed. The GLS attorney will be present during the interview unless unusual circumstances exist and the attorney’s absence is approved by the Area Counsel (GLS).

  7. As an alternative to granting an investigator’s request for an interview of a management employee, the GLS attorney will consider requesting that the investigator submit written interrogatories to be answered by the management employee and/or the management employee submit a written affidavit to the investigator.

  8. During and/or after an interview, neither the GLS attorney nor the management employee will sign any affidavit or notes taken by the investigator.

39.2.2.3.1  (08-11-2004)
GLS Actions after Issuance of a Complaint

  1. If the FLRA Regional Director issues a formal complaint and notice of hearing, the GLS attorney shall, consistent with any existing memorandum of understanding and office practice, notify the appropriate servicing labor relations office and client organization to advise them of the receipt of the complaint and notice of hearing.

  2. The GLS attorney shall file an answer to the complaint within the time limits set forth in 5 C.F.R. § 2423.20(b). The answer shall admit, deny, or explain each allegation of the complaint.

  3. The GLS attorney assigned to the case shall conduct additional investigation as appropriate to determine the facts, identify, interview and prepare prospective witnesses, and identify and gather necessary documents.

  4. In all aspects of hearing preparation and litigation, the GLS attorney will insure that any disclosure of tax return and return information is consistent with I.R.C. § 6103(l)(4). Additionally, the GLS attorney will exercise caution in not disclosing information that would violate the Privacy Act.

  5. All motions, except those made during a prehearing conference or hearing shall be made in writing and in accordance with applicable regulations or other guidance. Prehearing motions and motions made at the hearing shall be filed with the Administrative Law Judge. Motions for an interlocutory appeal of any ruling and responses must be filed in accordance with 5 C.F.R. § 2423.31(c). With very limited exceptions, after transfer of the case to the FLRA, motions and responses thereto shall be filed in writing with the FLRA.

  6. A response to a motion shall be prepared and filed within the time frames set forth in 5 C.F.R. § 2423.21 and in compliance with 5 C.F.R. § 2429.25 and 5 C.F.R. § 2429.27(c).

39.2.2.3.2  (08-11-2004)
Conduct of the Hearing

  1. The GLS attorney shall be prepared to make both opening and closing statements at hearing.

  2. At the hearing, the GLS attorney will introduce relevant evidence that supports the Service’s or Counsel’s case.

  3. A post-hearing brief shall be prepared and filed by the GLS attorney in accordance with 5 C.F.R. § 2423.33 and any other applicable regulations and guidance. A decision not to file a post-hearing brief, in any particular case, must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP.

39.2.2.3.3  (08-11-2004)
Appeals

  1. Appeals of Decisions Adverse to the Agency. In the event that a decision is adverse to the agency’s position, the GLS attorney shall:

    1. Promptly review the decision to determine whether grounds for review or appeal exist and determine the applicable time frames for review or appeal.

    2. Consult with the appropriate client organizations(s) which have final authority for deciding whether to appeal and with the servicing labor or personnel relations offices.

    3. Prepare a written appeal for filing, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee (consultation with the Chief, CLP is required in seeking review or appeal of cases that require the involvement of the General Counsel’s Office, Department of the Treasury, Office of Personnel Management, DOJ or when it is a significant case).

    5. Ensure compliance with General Counsel Order No. 10.

    6. Ensure that any appeal to the Court of Appeals or higher has the approval of the Chief Counsel or Chief Counsel’s delegate.

  2. Appeals by Opposing Party. In the event that an appeal is filed by an opposing party after a decision favorable to the Service or Counsel has been made, the GLS attorney shall:

    1. Promptly review the appeal to determine the extent of the Agency’s response and to determine the applicable time frames for responding to the appeal.

    2. Consult with the appropriate servicing labor or personnel relations offices and client organizations.

    3. Prepare a response to the appeal, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

39.2.2.3.4  (08-11-2004)
Settlement of Unfair Labor Practice Cases

  1. See CCDM 39.2.2.6, Procedures for Settlement of Labor and Personnel Litigation Cases.

39.2.2.4  (08-11-2004)
Representation and Unit Determination Cases

  1. In exercising its delegated authority, the Associate Chief Counsel (GLS) will encounter cases in which a labor organization, employee, group of employees or the agency has filed a petition with the Federal Labor Relations Authority (FLRA) seeking a change in representation status for an employee or group of employees or for a determination of the appropriate bargaining unit for representation purposes, which may include a petition for the consolidation of existing bargaining units.

  2. This subsection describes the procedures the GLS attorney will use in representing IRS or Counsel management when assigned a representation case.

39.2.2.4.1  (08-11-2004)
Prehearing Procedures

  1. If a representation petition is served on an Area Counsel (GLS) office, the Area Counsel will forward a copy of the petition to the Chief, CLP.

  2. Upon receipt of the representation petition, the Chief, CLP, or Area Counsel (GLS), as appropriate, will assign the case to a GLS attorney.

  3. Upon receipt of the case, the GLS attorney shall, consistent with any existing memorandums of understanding and office practice, notify the appropriate servicing labor relations offices and client organizations of receipt of the case by GLS.

  4. The GLS attorney shall handle the representation matter in accordance with the FLRA regulations governing representation proceedings which are found in 5 C.F.R. Part 2422.

  5. The GLS attorney assigned to the case will familiarize him/herself with the case and make sure the record is complete.

  6. The GLS attorney shall examine the representation petition to determine whether the appropriate type of petition has been filed and whether it complies with the requirements of the FLRA regulations. If appropriate, the GLS attorney shall file objections to the petition with the Regional Director of the FLRA.

  7. The GLS attorney shall prepare the case for hearing including determining the facts, identifying and interviewing prospective witnesses, and identifying and gathering necessary documents.

  8. The GLS attorney shall advise the agency regarding its pre-hearing obligations, including posting of the notice of petition, timeliness of the petition, and the obligation of the parties to meet, furnish relevant information, cooperate and use their best efforts to secure agreement as set out in the FLRA regulations. The attorney will ensure compliance with all requests of the Regional Director.

  9. The GLS attorney shall examine the adequacy and validity of the petitioner’s showing of interest and, if appropriate, file a timely challenge with the Regional Director of the FLRA.

  10. An organizational chart shall be obtained and a position description obtained for each position in the chart. The actual duties, responsibilities, and line of authority for each position shall be examined to determine whether they meet the criteria for inclusion in the bargaining unit.

  11. With regard to each position involved, the attorney shall be familiar with the job description, the actual duties and responsibilities of the position, and the function and importance of the position in relation to the facility.

  12. In all aspects of hearing preparation and litigation, the GLS attorney will ensure that the disclosure of tax return and return information is consistent with I.R.C. § 6103(l)(4). Additionally, the GLS attorney will exercise caution in not disclosing information that would violate the Privacy Act.

39.2.2.4.2  (08-11-2004)
Representation Hearings

  1. Representation hearings are considered investigatory and not adversarial. The purpose of the hearing is to develop a complete record of relevant and material facts upon which the Regional Director can make an appropriate unit determination.

  2. If a hearing is scheduled, the GLS attorney shall be prepared to make both opening and closing statements and to submit a post-hearing brief with the Regional Director. A decision to not file a post-hearing brief shall be approved by the Area Counsel (GLS) or Chief, CLP, as appropriate.

  3. At hearing, the GLS attorney shall introduce relevant documentary and testimonial evidence which supports the Service’s or Counsel’s case.

39.2.2.4.3  (08-11-2004)
Appeals

  1. The regulations governing filing an application for review with the FLRA from a Decision and Order of a Regional Director are found at 5 C.F.R. § 2422.31.

  2. Appeals of Decisions Adverse to the Agency. In the event that the Decision and Order of the Regional Director is adverse to the agency’s position, the GLS attorney shall:

    1. Promptly review the Decision and Order to determine whether grounds exist for filing an application for review with the FLRA and to determine the applicable time frames for filing an application for review.

    2. Consult with the appropriate client organizations that have final authority for deciding whether to appeal and with the servicing labor relations offices.

    3. Prepare a written application for review for filing.

    4. Process any application for review consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

      Note:

      Consultation with the Chief, CLP, is required in all cases involving representation decisions adverse to the agency’s position.

    5. Ensure compliance with General Counsel Order No. 10.

  3. Appeals by Opposing Party. In the event that an application for review is filed by an opposing party after a Decision and Order favorable to the Service or Counsel has been made, the GLS attorney shall:

    1. Promptly review the application for review to determine the extent of the Agency’s response and to determine the applicable time frames for responding.

    2. Consult with the appropriate servicing labor relations offices and client organizations.

    3. Prepare an opposition to the application for review, if necessary.

    4. Process any review of the opposition consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

39.2.2.5  (08-11-2004)
Equal Employment Opportunity Cases

  1. The Associate Chief Counsel (GLS) represents the Service and Counsel management when it is named as a party in a discrimination complaint brought by an employee, former employee, applicant, third party, or group of employees. When discrimination is alleged by an employee covered by a negotiated grievance procedure, the employee may proceed under the negotiated grievance procedure or under the Equal Employment Opportunity (EEO) statutory procedure, but not both. This chapter addresses the statutory EEO process only under 29 C.F.R. §1614.101, et. seq. The GLS attorney should handle the EEO case in accordance with the regulations governing EEO proceedings found in 29 C.F.R. §1614. 101, et. seq. and any other applicable guidance.

39.2.2.5.1  (06-03-2009)
Agency Decision

  1. If, in lieu of a hearing before an Administrative Judge, the complainant requests a decision based on the evidence of record, the GLS attorney shall review the file and prepare comments for the Office of Civil Rights and Diversity, Treasury, concerning the issues in the case.

  2. If the case is at the hearing stage and complainant withdraws and asks for an agency decision the GLS attorney shall review the file and prepare comments for the Office of Civil Rights and Diversity, Treasury.

39.2.2.5.2  (06-03-2009)
Pre-hearing Procedures

  1. If the complainant requests a hearing, the Treasury Complaints Center will forward a copy of the EEO Investigative File (IF) prepared by the Treasury Complaints Center, and the Administrative File to the appropriate Area Counsel (GLS), who will assign the case to a GLS attorney who will handle the matter.

  2. The GLS attorney assigned to the case will become familiar with the case and make sure the record is complete.

  3. Upon receipt of a case, the GLS attorney shall, consistent with any existing memorandums of understanding and office practice, notify the appropriate servicing EEO Office and client organizations of the receipt of the case by GLS.

  4. Upon receipt of the acknowledgment order from the EEOC, the GLS attorney shall ensure compliance with any orders contained therein and all pertinent regulatory requirements. Examples include initiating discovery and engaging in settlement discussions.

  5. The GLS attorney assigned to the case shall promptly review the IF.

  6. The GLS attorney shall prepare the case for hearing including determining the facts, identifying and interviewing prospective witnesses, and identifying and gathering necessary documents.

  7. Consistent with regulation (29 C.F.R. §1614.109) the GLS attorney shall use discovery to facilitate the preparation of the case. A decision not to engage in discovery, in any particular case, must be approved by the Area Counsel (GLS) and, as appropriate, Chief, CLP.

  8. After review of the EEO IF and other information as appropriate, the GLS attorney shall consider whether or not a Motion for a Decision Without a Hearing to dispose of some or all of the issues in the case should be prepared and filed.

  9. The GLS attorney shall ensure that arrangements for a hearing room and court reporter have been accomplished by the appropriate EEO Office in advance of the hearing.

  10. In all aspects of hearing preparation and litigation, the GLS attorney will insure that any disclosure of tax return and return information is consistent with I.R.C. § 6103(l)(4). Additionally, the GLS attorney will exercise caution in not disclosing information that would violate the Privacy Act.

39.2.2.5.3  (08-11-2004)
Class Actions

  1. Upon receipt of a class complaint, a GLS attorney shall be assigned to the case and shall, consistent with any existing memorandums of understanding and office practice, notify the appropriate servicing EEO Office and client organizations. The GLS attorney shall also review the class complaint to determine if the regulatory and legal requirements of 29 C.F.R. §1614.204 have been met such as numerosity, commonality, etc. If appropriate, the GLS attorney shall prepare a response and Motion to Dismiss on the grounds that the complaint does not meet the regulatory requirements for a class complaint.

  2. All class complaints will be coordinated with the Chief, CLP.

  3. Upon notice of Class certification the GLS attorney shall take appropriate steps to ensure that necessary records and evidence are preserved.

39.2.2.5.4  (08-11-2004)
EEO Hearings

  1. The GLS attorney shall be prepared to make both opening and closing statements. The GLS attorney should always consider the filing of a post-hearing brief and must request permission from the Administrative Judge to do so should the filing of a post hearing brief be desired. The decision to not file a post-hearing brief should be approved by the Area Counsel (GLS).

  2. At hearing, the GLS attorney should introduce relevant documentary and testimonial evidence which supports the Service’s or Counsel’s case.

39.2.2.5.5  (08-11-2004)
Appeals

  1. Appeals of Decisions Adverse to the Agency. In the event that a decision is adverse to the agency’s position, the GLS attorney shall:

    1. Promptly review the decision to determine whether grounds for review or appeal exist and determine the applicable time frames for review or appeal.

    2. Consult with the appropriate client organizations which have final authority for deciding whether to appeal and with the servicing EEO Office.

    3. Prepare a written appeal for filing, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

      Note:

      Consultation with the Chief, CLP is required in seeking review or appeal of cases that require the involvement of the General Counsel’s Office, Department of the Treasury, Office of Personnel Management, DOJ, or when it is a significant case.

    5. Ensure compliance with General Counsel Order No. 10.

    6. Ensure that any appeal to the Court of Appeals or higher has the approval of the Chief Counsel or Chief Counsel’s delegate.

  2. Appeals by Opposing Party. In the event that an appeal is filed by an opposing party after a decision favorable to the Service or Counsel has been made, the GLS attorney shall:

    1. Promptly review the appeal to determine the extent of the Agency’s response and to determine the applicable time frames for responding to the appeal.

    2. Consult with the appropriate servicing EEO Office and client organizations.

    3. Prepare a response to the appeal, if necessary.

    4. Process any review or appeal consistent with the procedural guidance issued by the Area Counsel (GLS) and the Associate Chief Counsel (GLS) or designee.

39.2.2.5.6  (06-03-2009)
Settlement of EEO Cases

  1. See CCDM 39.2.2.6, Procedures for Settlement of Labor and Personnel Litigation Cases.

  2. The DCRU reviews all IRS EEO settlement agreements and decisions finding discrimination.

  3. The GLS attorney must send DCRU a copy of the settlement agreement and any other pertinent information.

  4. In cases in which a finding of discrimination has been made, the GLS attorney should inform the DCRU and provide a copy of the decision and any other pertinent documentation.

39.2.2.6  (03-09-2011)
Procedures for Settlement of Labor and Personnel Litigation Cases

  1. When considering settlement, the GLS attorney shall first make a careful analysis of the relative strengths and weaknesses of the entire case. Depending on the type of case involved, the attorney must consult with the appropriate IRS or Counsel client(s), as defined below, to discuss all possible legal and practical ramifications prior to discussions with opposing counsel about settlement. At this time, the attorney should question the client about possible settlement positions. Clients may include:

    • Appropriate Service or Counsel management officials, i.e., Service Field Director or Division Counsel (Large Business and International )

    • Appropriate servicing labor relations or personnel offices

    • Appropriate embedded human resources or EEO & Diversity directors

    • Chief, EEO & Diversity

  2. In cases involving an issue of contract interpretation, the appropriate clients having settlement authority are:

    • Director, Office of Workforce Relations, Strategic Human Resources, for Service cases

    • Associate Chief Counsel (Finance & Management) for Counsel cases

  3. If it is obvious that settlement is a possibility, definite parameters should be set by the client in consultation with the GLS attorney.

  4. Settlement discussions can be initiated by either party. However, settlement offers and discussions should never exceed the parameters set with the client. Whenever an offer is made by the opposing party, it must be cleared with the client before the attorney can give it full consideration.

  5. If, during the course of the negotiations, a settlement is mutually agreed upon, the proposed settlement agreement must be cleared through the appropriate clients as identified in paragraph (1), Area Counsel (GLS) or the Chief, CLP, as appropriate.

  6. Any settlement reached must be documented in writing. Except when the forum negotiates an oral and binding settlement, the settlement agreement must be signed by the appropriate client(s) with settlement authority as identified in paragraph (1).

  7. Consistent with procedural guidance issued by Area Counsel (GLS) and the Associate Chief Counsel (GLS), as appropriate, the GLS attorney will follow up with the client organizations and the labor relation offices to ensure that the terms of the settlement agreement are implemented, as appropriate.

  8. For settlement of significant litigation matters, see CCDM 39.2.2.7, Significant Case Coordination.

  9. For settlement of EEO cases, see CCDM 39.2.2.5.6, Settlement of EEO Cases.

39.2.2.7  (08-11-2004)
Significant Case Coordination

  1. The Associate Chief Counsel (GLS) must be kept informed of significant issues and cases handled by the Area Counsel (GLS) offices. Likewise, the Area Counsel (GLS) must be kept abreast of important cases and information affecting them. Consistent with guidance issued by the Associate Chief Counsel (GLS), attorneys shall promptly bring significant cases to the attention of the Associate Chief Counsel (GLS) or designee. Similarly, consistent with guidance issued by the Associate Chief Counsel (GLS), the Chief, CLP, or designee will notify the Area Counsel (GLS) of those issues and cases coming to its attention which affect matters handled by the field.

  2. The Associate Chief Counsel (GLS) must be notified within one business day of the Area Counsel (GLS) becoming aware of any case that must be reported to the Office of General Counsel, Department of the Treasury, in compliance with General Counsel Order No. 10.

  3. The Associate Chief Counsel (GLS) must be promptly notified of any appeal to the Court of Appeals or higher that needs the approval of the Chief Counsel or designee.

  4. Notice of significant cases or issues shall be made by email, facsimile, or mail. The subject line should prominently identify the matter as a significant case. Should exigent circumstances require immediate notification, notice shall be made by email and telephone.

39.2.2.8  (08-11-2004)
GLS Representation or Assistance to Agencies Other Than the Internal Revenue Service and the Office of Chief Counsel

  1. Occasionally, bureaus and activities within the Department of the Treasury other than the Service and the Office of Chief Counsel may request the Associate Chief Counsel (GLS) to furnish legal counsel in the following matters:

    • Unit determination cases

    • Arbitration matters

    • Unfair labor practice complaints

    • EEO matters

    • Related personnel/labor relations questions

  2. In order for a GLS attorney to undertake representation in these situations, prior authorization must be obtained by the chief legal officer of the Treasury bureau or activity seeking representation or assistance from the Associate Chief Counsel (GLS).

39.2.2.9  (08-11-2004)
Processing Awards of Attorney’s Fees and Litigation Costs Made Against the Agency

  1. The purpose of this subsection is to provide information on the procedures to be used for processing payments of awards of attorney fees and litigation costs.

  2. Whenever a case handled by a GLS attorney results in an award of attorney’s fees, the attorney of record shall provide a memorandum to the agency official responsible for payment (i.e., Controller, Beckley West Virginia or other appropriate office) which shall include the following:

    1. A statement that payment of the award is proper and lawful

    2. A statement citing the basis for payment, i.e., Back Pay Act, Title VII

    3. A statement specifying to whom payment must be made, including their Taxpayer Identification Number, if available

    4. A copy of the document which obligates payment of the award of attorney’s fees, i.e., an executed settlement agreement, a decision

Exhibit 39.2.2-1 
Confirmation Memo of Procurement of Arbitrator’s Services

IRS Memorandum
Date:   February 22, 2003
To:   Chief, Labor Relations Section
From:   GLS Attorney’s Name
Subject:   PROCUREMENT OF ARBITRATOR’S SERVICES FOR
GRIEVANCE OF JOHN DOE
This confirms our telephone conversation of February 20, 2003. Pursuant to that conversation, it is my understanding that you will undertake to prepare and submit the necessary requisitions and ensure that a purchase order is properly issued in order to obtain the services of Arbitrator John Smith on May 3, 2003, for a hearing on the grievance of John Doe.
We also request that you obtain purchase orders for the following as indicated:
  Court Reporter
Transcripts (No. of copies)
Other (Specify)
Upon your receipt of the completed and issued procurement forms, please inform me of the purchase order number.

Exhibit 39.2.2-2 
Sample Confirmation Letter

April 2, 2003

Mr. John Smith
5000 Marlboro Street
Philadelphia, PA

Dear Mr. Smith:

This confirms our telephone conversation of March 30, 2003, pertaining to the grievance arbitration of John Doe. It is my understanding that you are available to serve as an arbitrator in this matter and that the hearing is tentatively scheduled to be held at the IRS District Office in Philadelphia on May 3, 2003. Please contact me if any difficulties develop concerning your availability.

I have asked that the appropriate offices prepare the necessary papers in order to firmly commit the Internal Revenue Service to pay its portion of the bill for your services. You should soon be receiving a purchase order under separate cover. This purchase order constitutes your contract to perform services for the United States and must be prepared and sent to you in order to ensure the timely payment of your bill. Please telephone me if you have not received it by April 19, 2003.

Very truly yours,

cc: (Union attorney)


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