2 U.S.C. § 1406 — Appeal to Board

Page 342 TITLE 2—THE CONGRESS § 1406 section (a)’’ for ‘‘complaint’’, was executed by making the substitution both places it appeared, to reflect the probable intent of Congress. Subsec. (c)(3). Pub. L. 115–397, § 103(c), added par. (3). Subsec. (d). Pub. L. 115–397, § 103(e)(3), substituted ‘‘claim’’ for ‘‘complaint’’ in introductory provisions. Subsec. (d)(2). Pub. L. 115–397, § 103(d), added par. (2) and struck out former par. (2) which read as follows: ‘‘commenced no later than 60 days after filing of the complaint under subsection (a), except that the Office may, for good cause, extend up to an additional 30 days the time for commencing a hearing; and’’. Subsec. (g). Pub. L. 115–397, § 103(e)(4), substituted ‘‘claim’’ for ‘‘complaint’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–397 effective upon expira- tion of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title. § 1406. Appeal to Board (a) In general Any party aggrieved by the decision of a hear- ing officer under section 1405(g) of this title may file a petition for review by the Board not later than 30 days after entry of the decision in the records of the Office. (b) Parties’ opportunity to submit argument The parties to the hearing upon which the de- cision of the hearing officer was made shall have a reasonable opportunity to be heard, through written submission and, in the discretion of the Board, through oral argument. (c) Standard of review The Board shall set aside a decision of a hear- ing officer if the Board determines that the deci- sion was— (1) arbitrary, capricious, an abuse of discre- tion, or otherwise not consistent with law; (2) not made consistent with required proce- dures; or (3) unsupported by substantial evidence. (d) Record In making determinations under subsection (c), the Board shall review the whole record, or those parts of it cited by a party, and due ac- count shall be taken of the rule of prejudicial error. (e) Decision The Board shall issue a written decision set- ting forth the reasons for its decision. The deci- sion may affirm, reverse, or remand to the hear- ing officer for further proceedings. A decision that does not require further proceedings before a hearing officer shall be entered in the records of the Office as a final decision. (Pub. L. 104–1, title IV, § 406, Jan. 23, 1995, 109 Stat. 35.) § 1407. Judicial review of Board decisions and enforcement (a) Jurisdiction (1) Judicial review The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any proceeding commenced by a petition of— (A) a party aggrieved by a final decision of the Board under section 1406(e) of this title in cases arising under part A of subchapter II, (B) a charging individual or a respondent before the Board who files a petition under section 1331(d)(4) of this title, (C) the General Counsel or a respondent before the Board who files a petition under section 1341(c)(5) of this title, or (D) the General Counsel or a respondent before the Board who files a petition under section 1351(c)(3) of this title. The court of appeals shall have exclusive juris- diction to set aside, suspend (in whole or in part), to determine the validity of, or other- wise review the decision of the Board. (2) Enforcement The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any petition of the General Counsel, filed in the name of the Office and at the direction of the Board, to enforce a final decision under section 1405(g) or 1406(e) of this title with re- spect to a violation of part A, B, C, or D of subchapter II. (b) Procedures (1) Respondents (A) In any proceeding commenced by a peti- tion filed under subsection (a)(1)(A) or (B), or filed by a party other than the General Coun- sel under subsection (a)(1)(C) or (D), the Office shall be named respondent and any party be- fore the Board may be named respondent by filing a notice of election with the court with- in 30 days after service of the petition. (B) In any proceeding commenced by a peti- tion filed by the General Counsel under sub- section (a)(1)(C) or (D), the prevailing party in the final decision entered under section 1406(e) of this title shall be named respondent, and any other party before the Board may be named respondent by filing a notice of elec- tion with the court within 30 days after serv- ice of the petition. (C) In any proceeding commenced by a peti- tion filed under subsection (a)(2), the party under section 1405 or 1406 of this title that the General Counsel determines has failed to com- ply with a final decision under section 1405(g) or 1406(e) of this title shall be named respond- ent. (2) Intervention Any party that participated in the pro- ceedings before the Board under section 1406 of this title and that was not made respondent under paragraph (1) may intervene as of right. (c) Law applicable Chapter 158 of title 28 shall apply to judicial review under paragraph (1) of subsection (a), ex- cept that— (1) with respect to section 2344 of title 28, service of a petition in any proceeding in which the Office is a respondent shall be on the General Counsel rather than on the Attor- ney General; (2) the provisions of section 2348 of title 28, on the authority of the Attorney General, shall not apply;