APPEALS FROM ADMINISTRATIVE DECISIONS

• Citation: 25 CFR Part 2
• Sections: 96

§ 2.100 What is the purpose of this part?

If you are adversely affected by certain decisions of a Bureau of Indian Affairs (Bureau) official, you can challenge (appeal) that decision to a higher authority within the Department of the Interior (Department) by following the procedures in this part. Except as otherwise provided in this part or in other applicable laws and regulations, you must exhaust the appeal mechanisms available under this part before you can seek review in a Federal district court under the Administrative Procedure Act (5 U.S.C. 704).

§ 2.101 What terms do I need to know?

Administrative record means all documents and materials that were considered directly or indirectly, or were presented for consideration, in the course of making the decision that is the subject of the appeal.

Adversely affected means the decision on appeal has caused or is likely to cause injury to a legally protected interest.

Agency means the Department of the Interior, inclusive of all its offices and bureaus.

Appeal means:

(1) A written request for administrative review of a decision-maker's decision or inaction that is claimed to adversely affect the interested party making the request; or

(2) The process you must follow when you seek administrative review of a decision-maker's decision or inaction.

Appellant means the person or entity who files an appeal.

AS-IA means the Assistant Secretary—Indian Affairs, Department of the Interior. AS-IA also means the Principal Deputy Assistant Secretary—Indian Affairs or other official delegated the authority of the AS-IA when the office of the AS-IA is vacant, when the AS-IA is unable to perform the functions of the office, or when the AS-IA is recused from the matter.

BIA means the Bureau of Indian Affairs.

BIE means the Bureau of Indian Education.

BTFA means the Bureau of Trust Funds Administration.

Days mean calendar days, unless otherwise provided. Days during which the agency is closed because of a lapse in appropriations do not count as days for purposes of calculating deadlines for actions by Federal officials under this part.

Decision means an agency action that permits, approves, or grants permission, requires compliance, or grants or denies requested relief.

Decision-maker means the Indian Affairs official whose decision or inaction is being appealed.

Effective means that the decision will be implemented by the Department.

Final agency action means a decision that represents the consummation of the agency's decision-making process and is subject to judicial review under 5 U.S.C. 704. Final agency actions are immediately effective unless the decision provides otherwise.

IBIA means the Interior Board of Indian Appeals within the Office of Hearings and Appeals.

IED means the Office of Indian Economic Development.

Indian Affairs means all offices and personnel subject to the authority of the AS-IA.

Interested party means a person or entity whose legally protected interests are adversely affected by the decision on appeal or may be adversely affected by the decision of the reviewing official.

Local Bureau Official (“LBO”) means the Superintendent, Field Representative, or other BIA official who serves as the primary point of contact between BIA and a Tribe or individual Indian.

Notice of Appeal (“NOA”) means a written document that an appellant files with the reviewing official and serves on the decision-maker and interested parties.

OIG means the Office of Indian Gaming.

OJS means the Office of Justice Services.

OSG means the Office of Self Governance.

Participant means the appellant, any interested party who files a response as provided for in § 2.209, and any Tribe that is an interested party.

Person means an individual human being or other entity.

Reviewing official means an Indian Affairs official who is authorized to review and issue decisions on appeals filed under this part, and the IBIA, unless otherwise provided in this part.

Trust Asset means trust lands, natural resources, trust funds, or other assets held by the Federal Government in trust for Indian Tribes and individual Indians.

We, us, and our, mean the officers and employees of Indian Affairs.

You (in the text of each section) and I (in the section headings) mean an interested party who is considering, pursuing, or participating in an administrative appeal as provided for in this part.

§ 2.102 What may I appeal under this part?

(a) Subject to the exceptions in this part and other applicable law or regulation, you may appeal:

(1) Any discrete, written decision made by a decision-maker that adversely affects you, including a determination by the decision-maker that she or he lacks either the duty or authority to take the action that you have requested; and

(2) Inaction by Indian Affairs officials by following the procedures in subpart F of this part.

(b) You may not appeal in the following circumstances.

(1) You may not separately appeal the issuance of component documents of the administrative record, including, but not limited to, appraisals or market studies, reports, studies, investigations, notices of impoundment or public sale, recommendations, or National Environmental Policy Act documents. The adequacy of these types of documents cannot be challenged unless and until an appealable decision is made in reliance upon these documents.

(2) You may not appeal an agency's notification to you that it is pursuing or is considering pursuing action against you in Federal district court, unless separate regulations in this title require you to follow administrative appeal procedures in accordance with this part or other regulations such as those listed in § 2.103 to appeal the notification. Such notifications include, but are not limited to, notices that could lead the agency to pursue actions for money damages against you, such as actions for trespass, ejectment, eviction, nuisance, conversion, or waste to Indian land under the Federal common law or statute.

(3) You may not appeal final agency actions (though you may be able to seek review in Federal district court).

(c) Any challenge to preliminary, procedural, or intermediate actions by a reviewing official must be submitted to the reviewing official prior to that official's issuing the decision. The reviewing official will address such challenges in the final decision. Such a challenge is not a separate appeal.

§ 2.103 Are all appeals subject to this part?

Not all appeals are subject to this part. Decisions by some Indian Affairs officials may be appealed to the Interior Board of Indian Appeals, subject to the regulations at 43 CFR part 4. Other regulations govern appeals of administrative decisions regarding certain topics. Table 1 to this section lists some decision topics that are subject to different appeals regulations, in whole or in part, and where to find those regulations.

Table 1 to § 2.103

For appeal rights related to . . .

Refer to . . .

Access to student records

25 CFR part 43.

Acknowledgment as a federally recognized Indian Tribe

25 CFR part 83.

Adverse employment decisions against Bureau of Indian Affairs employees

43 CFR part 20.

Any decision by a Court of Indian Offenses

25 CFR part 11.

Appointment or termination of contract educators

25 CFR part 38.

Debts owed by Federal employees

5 CFR part 550.

Determination of heirs, approval of wills, and probate proceedings

43 CFR part 4; 43 CFR part 30; 25 CFR part 16; 25 CFR part 17.

Indian School Equalization Program student count

25 CFR part 39.

Eligibility determinations for adult care assistance, burial assistance, child assistance, disaster, emergency and general assistance, and the Tribal work experience program

25 CFR part 20.

Certain adverse enrollment decisions

25 CFR part 62.

Freedom of Information Act requests

43 CFR part 2.

Grazing permits for trust or restricted lands

25 CFR part 166.

Indian Reservation Roads Program funding

25 CFR part 170.

Leasing of trust or restricted lands

25 CFR part 162.

Matters subject to the Contract Disputes Act

48 CFR part 33; 48 CFR part 6101.

Privacy Act requests

43 CFR part 2.

Restricting an Individual Indian Money account

25 CFR part 115.

Rights-of-way over or across trust or restricted lands

25 CFR part 169.

Secretarial elections

25 CFR part 81.

Self-Determination contracts

25 CFR part 900.

Self-Governance compacts

25 CFR part 1000.

Student rights and due process

25 CFR part 42.

Tribally controlled colleges and universities

25 CFR part 41.

Departmental quarters

41 CFR part 114.

§ 2.104 How will I know what decisions are appealable under this part?

(a) When an Indian Affairs official makes a decision that is subject to an appeal under this part, she or he will transmit the decision to interested parties by U.S. Mail or, upon request, by electronic mail. Unless the decision is immediately effective, and except for decisions that are subject to appeal to IBIA, the official will include the following notice of appeal rights at the end of the decision document:

This decision may be appealed by any person or entity who is adversely affected by the decision. Appeals must be submitted to the—[appropriate reviewing official]—at—[address, including email address]. The appeals process begins when you file with the reviewing official a notice of appeal, complying with the provisions of 25 CFR 2.205-2.207.

Deadline for Appeal. Your notice of appeal must be submitted in accordance with the provisions of 25 CFR 2.214 within 30 days of the date you receive notice of this decision pursuant to 25 CFR 2.203. If you do not file a timely appeal, you will have failed to exhaust administrative remedies as required by 25 CFR part 2. If no appeal is timely filed, this decision will become effective at the expiration of the appeal period. No extension of time may be granted for filing a notice of appeal.

Appeal Contents and Packaging. Your notice of appeal must comply with the requirements in 25 CFR 2.214. It must clearly identify the decision being appealed. If possible, attach a copy of this decision letter. The notice and the envelope in which it is mailed should be clearly labeled, “Notice of Appeal.” If electronic filing is available, “Notice of Appeal” must appear in the subject line of the email submission. Your notice of appeal must list the names and addresses of the interested parties known to you and certify that you have sent them and this office copies of the notice by any of the mechanisms permitted for transmitting the NOA to the BIA.

Where to Send Copies of Your Appeal.

[For appeals to IA officials, not IBIA]: In addition to sending your appeal to—[the reviewing official],—you must send a copy of your appeal to this office at the address on the letterhead—[if an email address is included in the letterhead, you may submit your appeals documents via email, with “Notice of Appeal” in the subject line of the email submission].

[For appeals to the IBIA]: If the reviewing official is the IBIA, you must also send a copy of your appeal to the AS-IA and to the Associate Solicitor, Division of Indian Affairs. If the reviewing official is the IBIA, your appeal will be governed by the IBIA's regulations, at 43 CFR part 4.

Assistance. If you can establish that you are an enrolled member of a federally recognized Tribe and you are not represented by an attorney, you may, within 10 days of receipt of this decision, request assistance from this office in the preparation of your appeal. Our assistance is limited to serving your filings on the interested parties and allowing limited access to government records and other documents in the possession of this office. We cannot obtain an attorney for you or act as your attorney on the merits of the appeal.

(b) If a decision-maker issues a decision that does not include notice of appeal rights, the decision-maker will provide written notice of appeal rights and the decision may be appealed as follows:

(1) If the decision-maker discovers within 30 days of issuing the decision that the decision did not include notice of appeal rights, then the decision-maker will provide written notice of appeal rights to interested parties, and inform them that they may appeal the decision within 30 days from the date of receipt of the notice. If no appeal is filed by the new deadline, the interested parties will have failed to exhaust administrative remedies as required by this part and the decision will become effective.

(2) If the decision-maker does not discover within 30 days of issuing the decision that the decision did not include notice of appeal rights and no administrative appeal is filed within 30 days of the issuance of the decision, then the decision becomes effective 31 days after it was issued.

(3) If the decision-maker discovers, more than 30 days but less than 365 days, after the date of the decision that the decision did not include notice of appeal rights, then the decision-maker will immediately notify the interested parties that the decision was issued without the requisite notice of appeal rights. If the decision has not actually been implemented, the decision-maker shall stay the implementation of the decision and reissue the decision with the appeal rights notice as provided in this section. If the decision has been implemented, the decision maker shall notify the interested parties of that fact, and notify them that they may file a challenge to the decision in Federal court, or pursue the administrative appeal process set out in this section.

§ 2.105 Who will receive notice of decisions that are appealable under this part?

Except as provided in other regulations governing specific types of decisions (see § 2.103), the decision-maker will transmit a copy of all appealable decisions to all known interested parties at the addresses the decision-maker has on file for them.

§ 2.106 How does this part comply with the Paperwork Reduction Act?

The information collected from the public under this part is cleared and covered by Office of Management and Budget (OMB) Control Number 1076-NEW. Please note that a Federal Agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

§ 2.200 Who may appeal a decision?

You have a right to appeal a decision made by an Indian Affairs official if you can show, through credible statements, that you are adversely affected by the decision.

§ 2.201 Do I need a lawyer in order to file a document in an appeal?

No. You may represent yourself. If you are represented by someone else, your representative must meet the standards established in 43 CFR part 1 and must provide documentation of his or her authority to act on your behalf.

§ 2.202 Who decides administrative appeals?

Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this section identifies the reviewing officials for appeals under this part:

Table 1 to § 2.202

Official issuing the decision

Reviewing official or IBIA

Agency Superintendent or Field Representative, BIA

Regional Director, BIA.

Regional Director, BIA

IBIA.

District Commander, OLES

Deputy Director BIA, Office of Justice Services (OJS).

Deputy Director, BIA

Director, BIA.

Director, BIA

IBIA.

Principal of a Bureau operated School

Education Program Administrator.

Education Program Administrator

Associate Deputy Director, BIE.

Associate Deputy Director, BIE

Director, BIE.

President of a Bureau operated Post-Secondary School

Director, BIE.

Director, BIE

AS-IA.

BTFA decision-maker

Director, BTFA.

Director of: OIG; IED; OSG

Appropriate Deputy Assistant Secretary—Indian Affairs.

Deputy Assistant Secretary—Indian Affairs; Director, BTFA

AS-IA.

§ 2.203 How long do I have to file an appeal?

(a) You have 30 days after you receive a copy of the decision you are appealing to file a Notice of Appeal, except as provided in § 2.104(b).

(b) We will presume that you have received notice of the decision 10 days after the date that the decision was mailed to you, if the decision-maker mailed the document to the last address the decision-maker has on file for you.

(c) If the reviewing official receives proof that the document was delivered before the expiration of the 10-day period, you are presumed to have received notice on the date of delivery, and you have 30 days from that date to file an appeal.

§ 2.204 Will the reviewing official grant a request for an extension of time to file a Notice of Appeal?

No. No extensions of time to file a Notice of Appeal will be granted.

§ 2.205 How do I file a Notice of Appeal?

(a) To file a Notice of Appeal to an Indian Affairs official, you must submit the Notice of Appeal to the reviewing official identified in the decision document's notice of appeal rights, as prescribed in § 2.104. Your submission must comply with § 2.214.

(b) If you are appealing to the IBIA, you must comply with IBIA's regulations, set out at 43 CFR part 4.

§ 2.206 What must I include in my Notice of Appeal?

In addition to meeting the requirements of § 2.214, your Notice of Appeal must include an explanation of how you satisfy the requirements of standing set out in § 2.200 and a copy of the decision being appealed, if possible.

§ 2.207 Do I have to send the Notice of Appeal to anyone other than the reviewing official?

(a) Yes. You must provide copies of your Notice of Appeal to the decision-maker and all interested parties known to you. If you are an individual Indian and are not represented by an attorney, you may request that we make the copies for you and mail your appeal documents to all interested parties.

(b) If you are appealing to the IBIA, you must also send a copy of your Notice of Appeal to the AS-IA and to the Associate Solicitor for Indian Affairs at the same time you send the appeal to the IBIA.

§ 2.208 What must I file in addition to the Notice of Appeal?

No later than 10 days after filing your Notice of Appeal, you must submit to the reviewing official, the decision-maker, and interested parties a statement of reasons that:

(a) Explains why you believe the decision was wrong;

(b) Identifies relevant information or evidence you believe the decision-maker failed to consider;

(c) Describes the relief you seek;

(d) Provides all documentation you believe supports your arguments; and

(e) Complies with the requirements of § 2.214.

§ 2.209 Who may file a response to the statement of reasons?

Any interested party may file a response to the statement of reasons, thereby becoming a participant. The decision-maker may also file a response to the statement of reasons.

§ 2.210 How long does the decision-maker or an interested party have to file a response?

The decision-maker or an interested party has 30 days after receiving a copy of the statement of reasons to file a response.

§ 2.211 What must a response to the statement of reasons include?

(a) A response to a statement of reasons must comply with § 2.214. In addition, the response must:

(1) State when the interested party or decision-maker submitting the response received the statement of reasons;

(2) Explain how the interested party submitting the response is adversely affected by the decision being appealed or may be adversely affected by the reviewing official's decision; and

(3) Explain why the interested party or decision maker submitting the response believes the arguments made in the appellant's Notice of Appeal and statement of reasons are right or wrong.

(b) The response may also include statements and documents supporting the position of the interested party or decision-maker submitting.

§ 2.212 Will the reviewing official accept additional briefings?

(a) Yes. The appellant may file a reply with the reviewing official within 21 days of receiving a copy of any response brief.

(b) Any interested party may, within 10 days after receiving the table of contents of the administrative record (AR), request copies of some or all of the AR. Such party may submit a supplemental brief within 10 days after receiving the requested documents.

(c) Any interested party may ask the reviewing official for permission to file additional briefing. The reviewing official's decision on whether to grant the request is not appealable.

(d) No documents other than those specified in this part and those permitted by the reviewing official under paragraph (c) of this section may be filed.

(e) The reviewing official will not consider documents not timely filed.

§ 2.213 What role does the decision-maker have in the appeal process?

(a) The decision-maker is responsible for:

(1) Compiling the administrative record;

(2) Sending the administrative record to the reviewing official within 20 days of the decision-maker's receipt of the Notice of Appeal; and

(3) Making available a copy of the administrative record for review by interested parties. When the decision-maker transmits the administrative record to the reviewing official, the decision-maker shall transmit to the interested parties a copy of the table of contents of the administrative record. Interested parties may view the administrative record at the office of the decision-maker. Interested parties may request copies of all or part of the administrative record. Where reproduction and transmission of the administrative record imposes costs on BIA exceeding $50, BIA may charge the requestor for those costs. BIA shall not incur such costs without the requestor's approval. The decision-maker shall respond to requests for documents in the administrative record within 30 days of receipt of the request, either by providing the requested documents or identifying a date by which the documents shall be provided. The decision-maker shall redact the documents provided to the requestor as required by law ( e.g., the Privacy Act). The decision-maker may withhold information in the administrative record, invoking privileges available in civil litigation; such withholding being subject to judicial review. Provision of documents in the administrative record to an interested party under this part is not governed by the Freedom of Information Act. Failure of a decision-maker to respond to a request for documents under this section may be appealed as provided in subpart F of this part.

(b) If a decision-maker believes that a compacting or contracting Tribe possesses Federal records that are relevant to the analysis of the appeal, the decision-maker may request that the Tribe produce the documents. Within two weeks of receiving the decision-maker's request, the Tribe shall either provide the requested documents to the decision-maker or explain why it is not providing the documents. This section does not apply to Tribal records. See 25 U.S.C. 5329(b).

(c) The decision-maker may file a response to the statement of reasons.

§ 2.214 What requirements apply to my submission of documents?

Except where a section in this part (or 43 CFR part 4 with respect to submissions to the IBIA) sets out other requirements, you must comply with the following provisions:

(a) Information required in every submission. (1) The submitter's contact information, consisting of name, mailing address, telephone number, and email address if any; or the name, mailing address, telephone number, and email address of the submitter's representative;

(2) A certificate of service by the submitter that the submission was served on all interested parties known to the submitter, a list of parties served, and the date and method of service; and

(3) The signature of the interested party or his or her representative.

(b) Filing documents. A document is properly filed with an agency official by:

(1) Personal delivery, either hand delivery by an interested party or via private mail carrier, during regular business hours to the person designated to receive mail in the immediate office of the official;

(2) United States mail to the facility officially designated for receipt of mail addressed to the official. The document is considered filed by mail on the date that it is postmarked; and

(3) Electronic mail (email) is permissible only in accordance with the provisions in paragraph (i) of this section.

(c) Service generally. A copy of each document filed in a proceeding under this part must be served by the filing party on the relevant agency official(s) and all other known interested parties. If an interested party is represented by an attorney, service of any document shall be made upon such attorney. Where an interested party is represented by more than one attorney, service upon one of the attorneys shall be sufficient.

(d) Record address. Every person who files a document in an appeal shall, at the time of the initial filing in the matter, provide his or her contact information. Such person must promptly inform the decision-maker or reviewing official of any change in address. Any successors in interest of such person shall promptly inform the decision-maker or reviewing official of his or her interest in the matter and provide contact information. Agency officials and other parties to an appeal shall have fulfilled their service requirement by transmitting documents to a party's last known address.

(e) Computation of time for filing and service. Documents must be filed within the deadlines established in this part (or by 43 CFR part 4 for filings submitted to the IBIA), or as established by Department officials in a particular matter. Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document, the day upon which the decision or document to be appealed from or answered was served, or the day of any other event after which the designated period of time begins to run, is not included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, Federal legal holiday, or other day on which the office to which the document is addressed is not conducting business, in which event the period runs until the end of the next day on which the office to which the document is addressed is conducting business. When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays, and other nonbusiness days shall be excluded in the computation.

(f) Extensions of time. (1) The deadline for filing and serving any document may be extended by the agency official before whom the proceeding is pending, except that the deadline for filing a Notice of Appeal may not be extended.

(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document.

(3) A request for extension of time must be filed with the same office as the document that is the subject of the request.

(g) Formatting. All submissions, except exhibits, must be typed in 12-point font, (double-spaced) using a standard 8

1/2 - by 11-inch word processing format, except that a document submitted by an interested party who is not represented by an attorney may be hand-written. An agency official may decline to consider an illegible hand-written submission. An agency official who declines to consider a hand-written submission shall promptly notify the submitter of the decision not to consider the submission.

(h) Page limits for particular filings are set out in the sections addressing those filings. Attachments and exhibits not drafted by or for the submitter do not count toward the page limit.

(i) Submitting and serving documents by email. Submitting documents by email to an agency official is only permitted when the receiving official has notified the known interested parties that email submissions are acceptable. Documents may only be served via email on interested parties who have stated, in writing, their willingness to accept service by email. No single email submission may exceed 10 megabytes (MB). Submissions may be divided into separate emails for purposes of complying with this requirement. Filings submitted by email shall be in PDF format. Email submissions that arrive at the agency official's office after 5:00 p.m. shall be deemed to have arrived on the next work day.

(j) Non-compliant submissions. An agency official may decline to consider a submission that does not comply with the requirements in this section, or take other action she/he deems appropriate. A non-compliant submission is nonetheless a Federal record, and must be preserved as other Federal records.

§ 2.300 When is a decision effective?

(a) Agency decisions that are subject to further administrative appeal become effective when the appeal period expires without an appeal being filed, except as provided elsewhere in this chapter.

(b) When an agency decision is effective pursuant to paragraph (c) of this section or § 2.714, the administrative appeal will proceed unless an interested party challenges the agency decision in Federal court.

(c) Agency decisions that are subject to further administrative appeal and for which an appeal is timely filed may be made immediately effective by the reviewing official based on public safety, Indian education safety, protection of trust resources, or other public exigency.

(1) A decision-maker whose decision has been appealed may ask the reviewing official to make the appealed decision immediately effective or the reviewing official may make the appealed decision immediately effective on his or her own initiative.

(2) A reviewing official's decision to make an appealed decision immediately effective must explain why public safety, Indian education safety, protection of trust resources, or other public exigency justifies making the decision immediately effective. Any challenge to the decision to put an appealed decision into immediate effect shall be incorporated into the ongoing appeal.

(3) A decision by a reviewing official (other than the IBIA) to place an appealed decision into immediate effect must be in writing and include the following notice of appeal rights:

As explained above, based on concerns about public safety, Indian education safety, protection of trust resources, or other exigency, I have placed the challenged decision into immediate effect, as authorized by 25 CFR 2.300. I will continue with my review of the matter on appeal unless and until an interested party files suit in federal court challenging the agency decision.

§ 2.301 When is a decision a final agency action?

An agency decision that is not subject to administrative appeal is a final agency action and immediately effective when issued unless the decision provides otherwise.

§ 2.400 When may the reviewing official require an appeal bond?

(a) Any interested party who may suffer a financial loss or damage to Indian Trust Assets as a result of an appeal may ask the reviewing official to require the appellant to post an appeal bond.

(b) The reviewing official may decide on his or her own initiative to require an appeal bond in accordance with this subpart.

§ 2.401 How will the reviewing official determine whether to require an appeal bond?

The reviewing official may require an appeal bond if the party requesting the appeal bond can demonstrate that the delay caused by the appeal may result in a measurable and substantial financial loss or damage to Indian Trust Assets. The amount of the appeal bond will be commensurate with the estimated financial loss or damage to Indian Trust Assets.

§ 2.402 What form of appeal bond will the reviewing official accept?

The reviewing official will only accept an appeal bond that has a market value at least equal to the total bond amount in one, or a combination of, the following forms.

(a) Negotiable U.S. Treasury securities, accompanied by a statement granting the AS-IA full authority to sell the securities and direct the proceeds to the party who was harmed by the appellant's unsuccessful appeal.

(b) Certificates of deposit that indicate on their face that AS-IA approval is required prior to redemption by any party.

(c) An irrevocable letter of credit issued by a federally insured financial institution and made payable to the Office of the AS-IA. The letter of credit must have an initial expiration date of not less than two years from the date of issuance and be automatically renewable for at least one year.

(d) A surety bond issued by a company approved by the U.S. Department of the Treasury.

§ 2.403 May I appeal the decision whether to require an appeal bond?

No. The reviewing official's decision whether to require an appeal bond is not appealable.

§ 2.404 What will happen to my appeal if I fail to post a required appeal bond?

If you are required to post a bond and fail to do so within the time allowed by the reviewing official to post the bond, the reviewing official will dismiss your appeal.

§ 2.405 How will the reviewing official notify interested parties of the decision on a request for an appeals bond?

When the reviewing official decides whether to require an appeal bond, she or he will provide the interested parties with written notice of the decision

§ 2.500 May an appeal be consolidated with other appeals?

Yes. The reviewing official may, either on his or her own initiative or upon request by the decision-maker or interested party, consolidate identical or similar appeals filed by you and others or consolidate multiple appeals that you file that also contain identical or similar issues.

§ 2.501 May an appealed decision be partially implemented?

Yes. The reviewing official may identify any parts of a decision-maker's decision that have not been appealed, to allow the decision-maker to implement those parts of the decision. The reviewing official will notify interested parties of a determination to implement unchallenged components of the decision-maker's decision. An interested party who disagrees with the reviewing official's determination may seek reconsideration by the reviewing official. A request for reconsideration must be filed within 15 days of issuance of the determination.

§ 2.502 May I withdraw my appeal once it has been filed?

Yes. You may withdraw your appeal at any time before the reviewing official issues a decision. To withdraw an appeal, you must write to the reviewing official and all participants stating that you want to withdraw your appeal. If you withdraw your appeal, it will be dismissed by the reviewing official. While the dismissal of a withdrawn appeal is without prejudice, the appeals time frame set out in this part will be unaffected by a withdrawn appeal. Therefore, any refiling of a withdrawn appeal must be within the original filing deadline established pursuant to § 2.104.

§ 2.503 May an appeal be dismissed without a decision on the merits?

Yes, the reviewing official may dismiss an appeal without a decision on the merits when:

(a) You are late in filing your appeal;

(b) You lack standing because you do not meet the requirements of § 2.200 for bringing an appeal;

(c) You have withdrawn the appeal;

(d) You have failed to pay a required appeal bond;

(e) The reviewing official lacks the authority to grant the requested relief;

(f) If you are represented and your representative does not meet the standards established in 43 CFR part 1 related to eligibility to practice before the Department, and you have failed to substitute yourself or an eligible representative after being given an opportunity to do so; or

(g) The reviewing official determines there are other circumstances that warrant a dismissal and explains those circumstances in the dismissal order.

§ 2.504 What information will the reviewing official consider?

(a) The reviewing official will consider:

(1) The administrative record for the decision, prepared by the decision-maker under § 2.213;

(2) All relevant documents submitted by the decision-maker and participants that were filed in accordance with applicable deadlines; and

(3) Laws, regulations, Secretarial Orders, Solicitor's Opinions, policies, implementing guidance, and prior judicial and administrative decisions that are relevant to the appeal.

(b) If the reviewing official considers documentation that was not included in the administrative record, the reviewing official will:

(1) Provide a copy of that documentation to the decision-maker and interested parties; and

(2) Establish a schedule for the decision-maker and interested parties to review and comment on the documentation.

§ 2.505 When will the reviewing official issue a decision on an appeal?

(a) The reviewing official (other than the IBIA) will issue a written decision, including the basis for the decision, within 90 days after the latest of:

(1) The filing of the statement of reasons;

(2) The filing of any responses, replies, or supplemental briefs under §§ 2.209 through 2.212; or

(3) The filing of any comments on additional material under § 2.504(b).

(b) A reviewing official (other than the IBIA) may, for good cause and with notice to the decision-maker and participants, extend the deadline for the official's decision one time by no more than 90 days.

§ 2.506 How does the reviewing official notify the appellant and other interested parties of a decision?

The reviewing official will send the decision to the decision-maker and interested parties.

§ 2.507 How do I appeal a reviewing official's decision?

(a) To appeal a reviewing official's decision that is not a final agency action, you must file your appeal in accordance with the instructions for appeal contained in the decision.

(b) The decision will include instructions that briefly describe how to appeal the decision, to whom the appeal should be directed, and the deadline for filing an appeal, and will refer interested parties to the regulations governing the appeal.

(c) If you are appealing to the IBIA, you must comply with IBIA's regulations, set out at 43 CFR part 4.

(d) Except where a specific section of this part sets out a different appellate hierarchy, table 1 to this paragraph (d) indicates the official to whom subsequent appeals should be addressed.

Table 1 to Paragraph ( d )

Reviewing official (or IBIA) whose decision is being appealed

Official to whom the appeal is addressed

Regional Director

IBIA.

Principal of a Bureau operated school

Education Program Administrator.

Education Program Administrator

Associate Deputy Director, Bureau of Indian Education.

Associate Deputy Director, BIE

Director, BIE.

President of a Bureau operated post-secondary school

Director, BIE.

Deputy Director BIA, Office of Justice Services (OJS)

IBIA.

Director, BIE

AS-IA.

Director, BTFA

AS-IA.

Director, BIA

IBIA.

Deputy Assistant Secretary—Indian Affairs

AS-IA.

AS-IA

(Decision is final for the Department).

IBIA

(Decision is final for the Department).

§ 2.508 May the AS-IA take jurisdiction over an appeal to the IBIA?

Yes. The AS-IA has 40 days from the date on which the IBIA received your Notice of Appeal to take jurisdiction from the IBIA. The AS-IA will notify the IBIA in writing of the assumption of jurisdiction and request the administrative record of the appeal. At any time in the 40 days, the AS-IA may notify the IBIA that she or he is not going to take jurisdiction over an appeal, at which point the IBIA will assign a docket number to the appeal under its regulations in 43 CFR part 4. If the IBIA does not receive written notice from the AS-IA within the 40-day period of the AS-IA's intent to take jurisdiction over the appeal, the IBIA will assign a docket number to your appeal.

§ 2.509 May I ask the AS-IA to take jurisdiction over my appeal?

No. The AS-IA will not consider a request from any interested party to take jurisdiction over an appeal.

§ 2.510 How will the AS-IA handle my appeal?

If the AS-IA takes jurisdiction over your appeal, or if an appeal is made to the AS-IA in accordance with table 1 to paragraph (d) in § 2.507, the following procedures shall apply:

(a) Within 10 days of receipt of an appeal, or of assumption of jurisdiction over an appeal to the IBIA, the AS-IA shall transmit to the official who issued the decision being appealed and all known interested parties a notice that will include information on when and how to file briefs, access to the administrative record, and may include instructions for filing briefs via email.

(b) Briefs shall comply with § 2.214, and be submitted as follows, unless the AS-IA specifies otherwise:

(1) Initial briefs are invited from the appellant, all interested parties, and the official whose decision is on appeal. Initial briefs may not exceed 30 pages and shall be due within 21 days of the date of the AS-IA's notice. Initial briefs must include certification of service on the reviewing official and all other interested parties identified in the AS-IA's initial notice to interested parties;

(2) Answering briefs shall be due within 35 days of the date of the AS-IA's notice. Answering briefs shall not exceed 15 pages; and

(3) For good cause shown, the AS-IA may extend deadlines, may allow handwritten briefs, may provide for different page limits, and may permit submission of reply briefs.

(c) The AS-IA shall render a decision on the appeal within 60 days of the end of briefing. The AS-IA may, for good cause and with notice to the participants, extend the deadline for issuing a decision by no more than 60 days.

(d) The AS-IA may summarily affirm the decision of the official whose decision is on appeal based on the record before the official whose decision is on appeal.

(e) The AS-IA may delegate to the Principal Deputy Assistant Secretary—Indian Affairs the authority and responsibility for rendering a final agency decision on an appeal over which the AS-IA is exercising jurisdiction.

§ 2.511 May the Secretary decide an appeal?

Yes. Nothing in this part will be construed as affecting the Secretary's authority to take jurisdiction over an appeal as set out in 43 CFR 4.5(a).

§ 2.512 May the Director of the Office of Hearings and Appeals take jurisdiction over a matter?

Yes. Nothing in this part will be construed as affecting the authority vested in the Director of the Office of Hearings and Appeals to take jurisdiction over matters in front of the IBIA, as provided in 43 CFR 4.5(b).

§ 2.600 May I compel an agency official to take action?

(a) Yes. If a decision-maker fails to take action on a written request for action that you believe the decision-maker is required to take, you may make the decision-maker's inaction the subject of appeal.

(b) Before filing an appeal with the next official in the decision-maker's chain of command, you must:

(1) Send a written request to the decision-maker, asking that he or she take the action originally asked of him or her;

(2) Identify the statute, regulation, or other source of law that you believe requires the decision-maker to take the action being requested;

(3) Describe the interest adversely affected by the decision-maker's inaction, including a description of the loss, impairment or impediment of such interest caused by the inaction; and

(4) State that, unless the decision-maker either takes action on the written request within 15 days of receipt of your request, or establishes a date by which a decision will be made, you will appeal the decision-maker's inaction in accordance with this subpart.

(c) You must include a copy of your original request to the decision-maker, or other documentation establishing the date and nature of the original request.

§ 2.601 When must a decision-maker respond to a request to act?

A decision-maker receiving a request as specified in § 2.600 has 15 days from receiving the request to issue a written response. The response may be a decision, a procedural order that will further the decision-making process, or a written notice that a decision will be rendered by a date no later than 60 days from the date of the request.

§ 2.602 What may I do if the decision-maker fails to respond?

If the decision-maker does not respond as provided for in § 2.601, you may appeal the decision-maker's continued inaction to the next official in the decision-maker's chain of command. For purposes of this subpart:

(a) BIA's chain of command is as follows:

(1) Local Bureau Official;

(2) Regional Director (find addresses on the Indian Affairs website, currently at https://www.bia.gov/regional-offices );

(3) Director, Bureau of Indian Affairs (1849 C Street NW, MS 4606, Washington, DC 20240); and

(4) Assistant Secretary—Indian Affairs (1849 C Street NW, MS 4660, Washington, DC 20240).

(b) BIE's chain of command is as follows:

(1) Principal of Bureau-operated school;

(2) Education Program Administrator;

(3) Associate Deputy Director, BIE;

(4) Director, BIE; and

(5) AS-IA.

(c) The Office of Justice Services' chain of command is as follows:

(1) Deputy Director BIA, Office of Justice Services;

(2) Director, BIA; and

(3) AS-IA

(d) You may appeal inaction by an official within the Office of the AS-IA to the AS-IA.

§ 2.603 How do I submit an appeal of inaction?

You may appeal the inaction of a decision-maker by sending a written “appeal from inaction of an official” to the next official in the decision-maker's chain of command. You must enclose a copy of the original request for decision to which the decision-maker has not responded and a copy of the request for decision that you sent to the decision-maker pursuant to § 2.600. If filing by email is permitted, “Appeal of Inaction” must appear in the subject line of the email submission.

§ 2.604 What will the next official in the decision-maker's chain of command do in response to my appeal?

An official who receives an appeal from the inaction of a decision-maker that complies with the requirements of this subpart will, within 15 days of receiving the appeal, formally direct the decision-maker to respond within 15 days of the decision-maker's receipt of the official direction. The official will send to all interested parties a copy of his or her instructions to the decision-maker.

§ 2.605 May I appeal continued inaction by the decision-maker or the next official in the decision-maker's chain of command?

Yes. If the official fails to timely direct the decision-maker to respond to the request for decision, or if the decision-maker fails to respond within the time frame identified by the official pursuant to § 2.604, you may appeal the continued inaction by either agency official to the next highest officer in the chain of command above both agency officials. Your appeal must be submitted as provided for in §§ 2.602 and 2.603. The official will respond as provided for in § 2.604.

§ 2.606 May I appeal inaction by a reviewing official on an appeal from a decision?

(a) Yes. If a reviewing official fails to take action on the appeal within the timeframes established in § 2.505, any interested party may appeal the reviewing official's inaction as provided for in this subpart.

(b) Inaction by the IBIA or by the AS-IA is not subject to appeal under this part.