(a) Certification of compliance. (1) If the appellant was the prevailing party in the initial decision, and the decision granted the appellant interim relief, any petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by:

(i) Providing the required interim relief; or

(ii) Satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(2) Evidence of its compliance must accompany its petition for review. Failure by an agency to provide the certification and evidence required by this section with its petition for review may result in the dismissal of the agency's petition for review.

(b) Allegation of noncompliance in petition for review. If an appellant or an intervenor files a petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency's compliance with the interim relief order, the agency must submit evidence within 25 days of the date of service that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B). The agency's evidence may be provided with any response to the petition for review or in a separate pleading.

(c) Request for dismissal for noncompliance with interim relief order. If the agency files a petition for review and the appellant believes the agency has not provided required interim relief, the appellant may request dismissal of the agency's petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency's petition, or within 25 days of the date upon which the appellant becomes aware that the agency has not provided, or has ceased to provide, interim relief. A copy of the request must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant's request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit. Failure by an agency to provide the certification required by paragraph (a) of this section with its petition for review, or to provide evidence of compliance in response to a Board order, may result in the dismissal of the agency's petition for review.

(d) Back pay and attorney fees. Nothing in this section shall be construed to require any payment of back pay for the period preceding the date of the judge's initial decision or attorney fees before the decision of the Board becomes final.