Subject: MSPB Laws
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Date: Thu, 4 Dec 2008 11:19:37 -0600

LAWS RELATING TO
THE MERIT SYSTEMS PROTECTION BOARD

5
U.S.C. 1204

Powers and Functions
of the Merit Systems Protection Board

5
U.S.C. 1214

Investigation of Prohibited Personnel Practices -- Corrective
Action

5 U.S.C.
1215

Disciplinary
Action

5 U.S.C.
2108

Definitions: Veteran -- Disabled Veteran -- Preference
Eligible

5 U.S.C.
2301

Merit Systems
Principles

5 U.S.C.
2302

Prohibited Personnel Practices

5 U.S.C.
7121

Grievance
Procedures

5 U.S.C.
7521

Actions Against Administrative Law
Judges

5 U.S.C.
7701

Appeals to the
MSPB

5
U.S.C. 7702

Actions Involving
Discrimination

5
U.S.C. 7703

Judicial Review of
MSPB Decisions

5
U.S.C. 1221

Individual Right of
Action (IRA Appeals) in Certain Reprisal Cases
(Whistleblowing)

5
U.S.C. 3330a

Administrative Appeal
Rights Under VEOA (Veterans Employment Opportunities Act)

5
U.S.C. 3330b

VEOA Appeals: Judicial
Redress

5
U.S.C. 3330c

VEOA Appeals:
Remedies

38
U.S.C. 4322

Enforcement of Employment or Reemployment Rights

38
U.S.C. 4324

Appeals under
USERRA (Uniformed Services Employment and Reemployment Rights
Act)

42 U.S.C.
1981a

Damages in cases of
intentional discrimination in
employment

5 U.S.C.
§ 1204. Powers and functions of the Merit Systems Protection
Board

(a) The Merit
Systems Protection Board shall -

(1) hear,
adjudicate, or provide for the hearing or adjudication, of all matters
within the jurisdiction of the Board under this title, chapter 43 of title
38, or any other law, rule, or regulation, and, subject to otherwise
applicable provisions of law, take final action on any such
matter;

(2) order any
Federal agency or employee to comply with any order or decision issued by
the Board under the authority granted under paragraph (1) of this subsection
and enforce compliance with any such order;

(3) conduct,
from time to time, special studies relating to the civil service and to
other merit systems in the executive branch, and report to the President and
to the Congress as to whether the public interest in a civil service free of
prohibited personnel practices is being adequately protected; and

(4) review, as
provided in subsection (f), rules and regulations of the Office of Personnel
Management.

(b)(1) Any member
of the Merit Systems Protection Board, any administrative law judge appointed
by the Board under section 3105 of this title, and any employee of the Board
designated by the Board may administer oaths, examine witnesses, take
depositions, and receive evidence.

(2) Any member
of the Board, any administrative law judge appointed by the Board under
section 3105, and any employee of the Board designated by the Board may,
with respect to any individual -

(A) issue
subpoenas requiring the attendance and presentation of testimony of any
such individual, and the production of documentary or other evidence from
any place in the United States, any territory or possession of the United
States, the Commonwealth of Puerto Rico, or the District of Columbia;
and

(B) order the
taking of depositions from, and responses to written interrogatories by,
any such individual.

(3) Witnesses
(whether appearing voluntarily or under subpoena) shall be paid the same fee
and mileage allowances which are paid subpoenaed witnesses in the courts of
the United States.

(c) In the case
of contumacy or failure to obey a subpoena issued under subsection (b)(2)(A)
or section 1214(b), upon application by the Board, the United States district
court for the district in which the person to whom the subpoena is addressed
resides or is served may issue an order requiring such person to appear at any
designated place to testify or to produce documentary or other evidence. Any
failure to obey the order of the court may be punished by the court as a
contempt thereof.

(d) A subpoena
referred to in subsection (b)(2)(A) may, in the case of any individual outside
the territorial jurisdiction of any court of the United States, be served in
such manner as the Federal Rules of Civil Procedure prescribe for service of a
subpoena in a foreign country. To the extent that the courts of the United
States can assert jurisdiction over such individual, the United States
District Court for the District of Columbia shall have the same jurisdiction
to take any action respecting compliance under this subsection by such
individual that such court would have if such individual were personally
within the jurisdiction of such court.

(e)(1)(A) In any
proceeding under subsection (a)(1), any member of the Board may request from
the Director of the Office of Personnel Management an advisory opinion
concerning the interpretation of any rule, regulation, or other policy
directive promulgated by the Office of Personnel Management.

(B)(i) The
Merit Systems Protection Board may, during an investigation by the Office
of Special Counsel or during the pendency of any proceeding before the
Board, issue any order which may be necessary to protect a witness or
other individual from harassment, except that an agency (other than the
Office of Special Counsel) may not request any such order with regard to
an investigation by the Office of Special Counsel from the Board during
such investigation.

(ii) An
order issued under this subparagraph may be enforced in the same manner
as provided for under paragraph (2) with respect to any order under
subsection (a)(2).

(2)(A) In
enforcing compliance with any order under subsection (a)(2), the Board may
order that any employee charged with complying with such order, other than
an employee appointed by the President by and with the advice and consent of
the Senate, shall not be entitled to receive payment for service as an
employee during any period that the order has not been complied with. The
Board shall certify to the Comptroller General of the United States that
such an order has been issued and no payment shall be made out of the
Treasury of the United States for any service specified in such
order.

(B) The Board
shall prescribe regulations under which any employee who is aggrieved by
the failure of any other employee to comply with an order of the Board may
petition the Board to exercise its authority under subparagraph
(A).

(3) In carrying
out any study under subsection (a)(3), the Board shall make such inquiries
as may be necessary and, unless otherwise prohibited by law, shall have
access to personnel records or information collected by the Office of
Personnel Management and may require additional reports from other agencies
as needed.

(f)(1) At any
time after the effective date of any rule or regulation issued by the Director
of the Office of Personnel Management in carrying out functions under section
1103, the Board shall review any provision of such rule or regulation -

(A) on its
own motion;

(B) on the
granting by the Board, in its sole discretion, of any petition for such
review filed with the Board by any interested person, after consideration
of the petition by the Board; or

(C) on the
filing of a written complaint by the Special Counsel requesting such
review.

(2) In
reviewing any provision of any rule or regulation pursuant to this
subsection, the Board shall declare such provision -

(A) invalid
on its face, if the Board determines that such provision would, if
implemented by any agency, on its face, require any employee to violate
section 2302(b); or

(B) invalidly
implemented by any agency, if the Board determines that such provision, as
it has been implemented by the agency through any personnel action taken
by the agency or through any policy adopted by the agency in conformity
with such provision, has required any employee to violate section
2302(b).

(3) The
Director of the Office of Personnel Management, and the head of any agency
implementing any provision of any rule or regulation under review pursuant
to this subsection, shall have the right to participate in such
review.

(4) The Board
shall require any agency -

(A) to cease
compliance with any provisions of any rule or regulation which the Board
declares under this subsection to be invalid on its face; and

(B) to
correct any invalid implementation by the agency of any provision of any
rule or regulation which the Board declares under this subsection to have
been invalidly implemented by the agency.

(g) The Board may
delegate the performance of any of its administrative functions under this
title to any employee of the Board.

(h) The Board
shall have the authority to prescribe such regulations as may be necessary for
the performance of its functions. The Board shall not issue advisory opinions.
All regulations of the Board shall be published in the Federal
Register.

(i) Except as
provided in section 518 of title 28, relating to litigation before the Supreme
Court, attorneys designated by the Chairman of the Board may appear for the
Board, and represent the Board, in any civil action brought in connection with
any function carried out by the Board pursuant to this title or as otherwise
authorized by law.

(j) The Chairman
of the Board may appoint such personnel as may be necessary to perform the
functions of the Board. Any appointment made under this subsection shall
comply with the provisions of this title, except that such appointment shall
not be subject to the approval or supervision of the Office of Personnel
Management or the Executive Office of the President (other than approval
required under section 3324 or subchapter VIII of chapter 33).

(k) The Board
shall prepare and submit to the President, and, at the same time, to the
appropriate committees of Congress, an annual budget of the expenses and other
items relating to the Board which shall, as revised, be included as a separate
item in the budget required to be transmitted to the Congress under section
1105 of title 31.

(l) The Board
shall submit to the President, and, at the same time, to each House of the
Congress, any legislative recommendations of the Board relating to any of its
functions under this title.

(m)(1) Except as
provided in paragraph (2) of this subsection, the Board, or an administrative
law judge or other employee of the Board designated to hear a case arising
under section 1215, may require payment by the agency involved of reasonable
attorney fees incurred by an employee or applicant for employment if the
employee or applicant is the prevailing party and the Board, administrative
law judge, or other employee (as the case may be) determines that payment by
the agency is warranted in the interest of justice, including any case in
which a prohibited personnel practice was engaged in by the agency or any case
in which the agency's action was clearly without merit.

(2) If
an employee or applicant for employment is the prevailing party of a case
arising under section 1215 and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this title, the
payment of attorney fees shall be in accordance with the standards
prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5(k)).

Source: (Added Pub.
L. 95-454, title II, § 202(a), Oct. 13, 1978, 92 Stat. 1122, § 1205; amended
Pub. L. 97-258, § 3(a)(2), Sept. 13, 1982, 96 Stat. 1063; renumbered § 1204 and
amended Pub. L. 101-12, § 3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. L. 102-568,
title V, § 506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L. 103-353, §
2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L. 103-424, § 2, Oct. 29, 1994,
108 Stat. 4361; Pub. L. 103-446, title XII, § 1203(c)(1), Nov. 2, 1994, 108
Stat. 4690.)

á

5 U.S.C.
§ 1214. Investigation of prohibited personnel practices; corrective
action

(a)(1)(A) The
Special Counsel shall receive any allegation of a prohibited personnel
practice and shall investigate the allegation to the extent necessary to
determine whether there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken.

(B) Within 15
days after the date of receiving an allegation of a prohibited personnel
practice under paragraph (1), the Special Counsel shall provide written
notice to the person who made the allegation that -

(i) the
allegation has been received by the Special Counsel; and

(ii) shall
include the name of a person at the Office of Special Counsel who shall
serve as a contact with the person making the allegation.

(C) Unless an
investigation is terminated under paragraph (2), the Special Counsel shall
-

(i) within
90 days after notice is provided under subparagraph (B), notify the
person who made the allegation of the status of the investigation and
any action taken by the Office of the Special Counsel since the filing
of the allegation;

(ii) notify
such person of the status of the investigation and any action taken by
the Office of the Special Counsel since the last notice, at least every
60 days after notice is given under clause (i); and

(iii)
notify such person of the status of the investigation and any action
taken by the Special Counsel at such time as determined appropriate by
the Special Counsel.

(D) No later
than 10 days before the Special Counsel terminates any investigation of a
prohibited personnel practice, the Special Counsel shall provide a written
status report to the person who made the allegation of the proposed
findings of fact and legal conclusions. The person may submit written
comments about the report to the Special Counsel. The Special Counsel
shall not be required to provide a subsequent written status report under
this subparagraph after the submission of such written comments.

(2)(A) If the
Special Counsel terminates any investigation under paragraph (1), the
Special Counsel shall prepare and transmit to any person on whose allegation
the investigation was initiated a written statement notifying the person of
-

(i) the
termination of the investigation;

(ii) a
summary of relevant facts ascertained by the Special Counsel, including
the facts that support, and the facts that do not support, the
allegations of such person;

(iii) the
reasons for terminating the investigation; and

(iv) a
response to any comments submitted under paragraph (1)(D).

(B) A written
statement under subparagraph (A) may not be admissible as evidence in any
judicial or administrative proceeding, without the consent of the person
who received such statement under subparagraph (A).

(3) Except in a
case in which an employee, former employee, or applicant for employment has
the right to appeal directly to the Merit Systems Protection Board under any
law, rule, or regulation, any such employee, former employee, or applicant
shall seek corrective action from the Special Counsel before seeking
corrective action from the Board. An employee, former employee, or applicant
for employment may seek corrective action from the Board under section 1221,
if such employee, former employee, or applicant seeks corrective action for
a prohibited personnel practice described in section 2302(b)(8) from the
Special Counsel and -

(A)(i) the
Special Counsel notifies such employee, former employee, or applicant that
an investigation concerning such employee, former employee, or applicant
has been terminated; and

(ii) no
more than 60 days have elapsed since notification was provided to such
employee, former employee, or applicant for employment that such
investigation was terminated; or

(B) 120 days
after seeking corrective action from the Special Counsel, such employee,
former employee, or applicant has not been notified by the Special Counsel
that the Special Counsel shall seek corrective action on behalf of such
employee, former employee, or applicant.

(4) If an
employee, former employee, or applicant seeks a corrective action from the
Board under section 1221, pursuant to the provisions of paragraph (3)(B),
the Special Counsel may continue to seek corrective action personal to such
employee, former employee, or applicant only with the consent of such
employee, former employee, or applicant.

(5) In addition
to any authority granted under paragraph (1), the Special Counsel may, in
the absence of an allegation, conduct an investigation for the purpose of
determining whether there are reasonable grounds to believe that a
prohibited personnel practice (or a pattern of prohibited personnel
practices) has occurred, exists, or is to be taken.

(b)(1)(A)(i) The
Special Counsel may request any member of the Merit Systems Protection Board
to order a stay of any personnel action for 45 days if the Special Counsel
determines that there are reasonable grounds to believe that the personnel
action was taken, or is to be taken, as a result of a prohibited personnel
practice.

(ii) Any
member of the Board requested by the Special Counsel to order a stay
under clause (i) shall order such stay unless the member determines
that, under the facts and circumstances involved, such a stay would not
be appropriate.

(iii)
Unless denied under clause (ii), any stay under this subparagraph shall
be granted within 3 calendar days (excluding Saturdays, Sundays, and
legal holidays) after the date of the request for the stay by the
Special Counsel.

(B) The Board
may extend the period of any stay granted under subparagraph (A) for any
period which the Board considers appropriate.

(C) The Board
shall allow any agency which is the subject of a stay to comment to the
Board on any extension of stay proposed under subparagraph (B).

(D) A stay
may be terminated by the Board at any time, except that a stay may not be
terminated by the Board -

(i) on its
own motion or on the motion of an agency, unless notice and opportunity
for oral or written comments are first provided to the Special Counsel
and the individual on whose behalf the stay was ordered; or

(ii) on
motion of the Special Counsel, unless notice and opportunity for oral or
written comments are first provided to the individual on whose behalf
the stay was ordered.

(2)(A)(i)
Except as provided under clause (ii), no later than 240 days after the date
of receiving an allegation of a prohibited personnel practice under
paragraph (1), the Special Counsel shall make a determination whether there
are reasonable grounds to believe that a prohibited personnel practice has
occurred, exists, or is to be taken.

(ii) If the
Special Counsel is unable to make the required determination within the
240-day period specified under clause (i) and the person submitting the
allegation of a prohibited personnel practice agrees to an extension of
time, the determination shall be made within such additional period of
time as shall be agreed upon between the Special Counsel and the person
submitting the allegation.

(B) If, in
connection with any investigation, the Special Counsel determines that
there are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken which requires corrective
action, the Special Counsel shall report the determination together with
any findings or recommendations to the Board, the agency involved and to
the Office of Personnel Management, and may report such determination,
findings and recommendations to the President. The Special Counsel may
include in the report recommendations for corrective action to be
taken.

(C) If, after
a reasonable period of time, the agency does not act to correct the
prohibited personnel practice, the Special Counsel may petition the Board
for corrective action.

(D) If the
Special Counsel finds, in consultation with the individual subject to the
prohibited personnel practice, that the agency has acted to correct the
prohibited personnel practice, the Special Counsel shall file such finding
with the Board, together with any written comments which the individual
may provide.

(E) A
determination by the Special Counsel under this paragraph shall not be
cited or referred to in any proceeding under this paragraph or any other
administrative or judicial proceeding for any purpose, without the consent
of the person submitting the allegation of a prohibited personnel
practice.

(3) Whenever
the Special Counsel petitions the Board for corrective action, the Board
shall provide an opportunity for -

(A) oral or
written comments by the Special Counsel, the agency involved, and the
Office of Personnel Management; and

(B) written
comments by any individual who alleges to be the subject of the prohibited
personnel practice.

(4)(A) The
Board shall order such corrective action as the Board considers appropriate,
if the Board determines that the Special Counsel has demonstrated that a
prohibited personnel practice, other than one described in section
2302(b)(8), has occurred, exists, or is to be taken.

(B)(i)
Subject to the provisions of clause (ii), in any case involving an alleged
prohibited personnel practice as described under section 2302(b)(8), the
Board shall order such corrective action as the Board considers
appropriate if the Special Counsel has demonstrated that a disclosure
described under section 2302(b)(8) was a contributing factor in the
personnel action which was taken or is to be taken against the
individual.

(ii)
Corrective action under clause (i) may not be ordered if the agency
demonstrates by clear and convincing evidence that it would have taken
the same personnel action in the absence of such disclosure.

(c)(1) Judicial
review of any final order or decision of the Board under this section may be
obtained by any employee, former employee, or applicant for employment
adversely affected by such order or decision.

(2) A petition
for review under this subsection shall be filed with such court, and within
such time, as provided for under section 7703(b).

(d)(1) If, in
connection with any investigation under this subchapter, the Special Counsel
determines that there is reasonable cause to believe that a criminal violation
has occurred, the Special Counsel shall report the determination to the
Attorney General and to the head of the agency involved, and shall submit a
copy of the report to the Director of the Office of Personnel Management and
the Director of the Office of Management and Budget.

(2) In any case
in which the Special Counsel determines that there are reasonable grounds to
believe that a prohibited personnel practice has occurred, exists, or is to
be taken, the Special Counsel shall proceed with any investigation or
proceeding unless -

(A) the
alleged violation has been reported to the Attorney General; and

(B) the
Attorney General is pursuing an investigation, in which case the Special
Counsel, after consultation with the Attorney General, has discretion as
to whether to proceed.

(e) If, in
connection with any investigation under this subchapter, the Special Counsel
determines that there is reasonable cause to believe that any violation of any
law, rule, or regulation has occurred other than one referred to in subsection
(b) or (d), the Special Counsel shall report such violation to the head of the
agency involved. The Special Counsel shall require, within 30 days after the
receipt of the report by the agency, a certification by the head of the agency
which states -

(1) that the
head of the agency has personally reviewed the report; and

(2) what action
has been or is to be taken, and when the action will be completed.

(f) During any
investigation initiated under this subchapter, no disciplinary action shall be
taken against any employee for any alleged prohibited activity under
investigation or for any related activity without the approval of the Special
Counsel.

(g) If the Board
orders corrective action under this section, such corrective action may
include -

(1) that the
individual be placed, as nearly as possible, in the position the individual
would have been in had the prohibited personnel practice not occurred;
and

(2)
reimbursement for attorney's fees, back pay and related benefits, medical
costs incurred, travel expenses, and any other reasonable and foreseeable
consequential damages.

Source: (Added Pub.
L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 23; amended Pub. L. 103-424, §
3(c), (d), 8(a), Oct. 29, 1994, 108 Stat. 4362, 4364.)

§ 1215. Disciplinary
action

(a) (1) Except as provided in subsection (b), if
the Special Counsel determines that disciplinary action should be taken
against any employee for having -

(A) committed a prohibited personnel
practice,

(B) violated the provisions of any law, rule, or
regulation, or engaged in any other conduct within the jurisdiction of the
Special Counsel as described in section 1216, or

(C) knowingly and
willfully refused or failed to comply with an order of the Merit Systems
Protection Board, the Special Counsel shall prepare a written complaint
against the employee containing the Special Counsel's determination,
together with a statement of supporting facts, and present the complaint
and statement to the employee and the Board, in accordance with this
subsection.

(2) Any employee against whom a complaint has
been presented to the Merit Systems Protection Board under paragraph (1) is
entitled to -

(A) a reasonable time to answer orally and in
writing, and to furnish affidavits and other documentary evidence in
support of the answer;

(B) be represented by an attorney or other
representative;

(C) a hearing before the Board or an administrative
law judge appointed under section 3105 and designated by the
Board;

(D) have a transcript kept of any hearing under
subparagraph; and

(E) a written decision and reasons therefor at
the earliest practicable date, including a copy of any final order
imposing disciplinary action.

(3) A final order of the Board may impose
disciplinary action consisting of removal, reduction in grade, debarment
from Federal employment for a period not to exceed 5 years, suspension,
reprimand, or an assessment of a civil penalty not to exceed $1,000.

(4) There may be no administrative appeal from an
order of the Board. An employee subject to a final order imposing
disciplinary action under this subsection may obtain judicial review of the
order by filing a petition therefor with such court, and within such time,
as provided for under section 7703(b).

(5) In the case of any State or local officer or
employee under chapter 15, the Board shall consider the case in accordance
with the provisions of such chapter.

(b) In the case of an employee in a confidential,
policy-making, policy-determining, or policy-advocating position appointed by
the President, by and with the advice and consent of the Senate (other than an
individual in the Foreign Service of the United States), the complaint and
statement referred to in subsection (a)(1), together with any response of the
employee, shall be presented to the President for appropriate action in lieu
of being presented under subsection (a).

(c) (1) In the case of members of the uniformed
services and individuals employed by any person under contract with an agency
to provide goods or services, the Special Counsel may transmit recommendations
for disciplinary or other appropriate action (including the evidence on which
such recommendations are based) to the head of the agency concerned.

(2) In any case in which the Special Counsel
transmits recommendations to an agency head under paragraph (1), the agency
head shall, within 60 days after receiving such recommendations, transmit a
report to the Special Counsel on each recommendation and the action taken,
or proposed to be taken, with respect to each such
recommendation.

Source: (Added Pub. L. 101-12, § 3(a)(13), Apr. 10,
1989, 103 Stat. 27.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1204, 1212,
1216, 1219, 1221, 2105, 3393, 7121, 7502, 7512, 7521, 7542 of this title.

5 U.S.C. § 2108. Veteran; disabled veteran; preference
eligible

For the purpose of
this title-

(1) ''veteran''
means an individual who-

(A) served on
active duty in the armed forces during a war, in a campaign or expedition
for which a campaign badge has been authorized, or during the period
beginning April 28, 1952, and ending July 1, 1955;

(B) served on
active duty as defined by section 101(21) of title 38 at any time in the
armed forces for a period of more than 180 consecutive days any part of
which occurred after January 31, 1955, and before October 15, 1976, not
including service under section 12103(d) of title 10 pursuant to an
enlistment in the Army National Guard or the Air National Guard or as a
Reserve for service in the Army Reserve, Naval Reserve, Air Force Reserve,
Marine Corps Reserve, or Coast Guard Reserve; or

(C) served on
active duty as defined by section 101(21) of title 38 in the armed forces
during the period beginning on August 2, 1990, and ending on January 2,
1992; and who has been separated from the armed forces under honorable
conditions;

(2) ''disabled
veteran'' means an individual who has served on active duty in the armed
forces, has been separated therefrom under honorable conditions, and has
established the present existence of a service-connected disability or is
receiving compensation, disability retirement benefits, or pension because of
a public statute administered by the Department of Veterans Affairs or a
military department;

(3) ''preference
eligible'' means, except as provided in paragraph (4) of this section -

(A) a veteran
as defined by paragraph (1)(A) of this section;

(B) a veteran
as defined by paragraph (1)(B) or (C) of this section;

(C) a disabled
veteran;

(D) the
unmarried widow or widower of a veteran as defined by paragraph (1)(A) of
this section;

(E) the wife or
husband of a service-connected disabled veteran if the veteran has been
unable to qualify for any appointment in the civil service or in the
government of the District of Columbia;

(F) the mother
of an individual who lost his life under honorable conditions while serving
in the armed forces during a period named by paragraph (1)(A) of this
section, if -

(i) her
husband is totally and permanently disabled;

(ii) she is
widowed, divorced, or separated from the father and has not remarried;
or

(iii) she has
remarried but is widowed, divorced, or legally separated from her husband
when preference is claimed; and

(G) the mother
of a service-connected permanently and totally disabled veteran, if -

(i) her
husband is totally and permanently disabled;

(ii) she is
widowed, divorced, or separated from the father and has not remarried;
or

(iii) she has
remarried but is widowed, divorced, or legally separated from her husband
when preference is claimed; but does not include applicants for, or
members of, the Senior Executive Service, the Defense Intelligence Senior
Executive Service, the Senior Cryptologic Executive Service, or the
Federal Bureau of Investigation and Drug Enforcement Administration Senior
Executive Service;

(4) except for
the purposes of chapters 43 and 75 of this title, ''preference eligible'' does
not include a retired member of the armed forces unless -

(A) the
individual is a disabled veteran; or

(B) the
individual retired below the rank of major or its equivalent; and

(5) ''retired
member of the armed forces'' means a member or former member of the armed
forces who is entitled, under statute, to retired, retirement, or retainer pay
on account of service as a member.

Source: (Pub. L.
89-554, Sept. 6, 1966, 80 Stat. 410; Pub. L. 90-83, § 1(6), Sept. 11, 1967, 81
Stat. 196; Pub. L. 90-623, § 1(2), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 92-187,
§ 1, Dec. 15, 1971, 85 Stat. 644; Pub. L. 94-502, title VII, § 702, Oct. 15,
1976, 90 Stat. 2405; Pub. L. 95-454, title III, § 307(a), title IV, § 401(d),
Oct. 13, 1978, 92 Stat. 1147, 1154; Pub. L. 96-54, § 2(a)(8), (9)(A), Aug. 14,
1979, 93 Stat. 381; Pub. L. 96-191, § 8(a), Feb. 15, 1980, 94 Stat. 33; Pub. L.
97-89, title VIII, § 801, Dec. 4, 1981, 95 Stat. 1161; Pub. L. 100-325, § 2(a),
May 30, 1988, 102 Stat. 581; Pub. L. 102-54, § 13(b)(1), June 13, 1991, 105
Stat. 274; Pub. L. 105-85, div. A, title XI, § 1102(a), (c), Nov. 18, 1997, 111
Stat. 1922; Pub. L. 105-339, § 4, 112 Stat. 3185, Oct. 31, 1998.)

5
U.S.C. § 2301. Merit Systems Principles

(a) This section shall apply to -

(1) an Executive agency; and

(2) the Government Printing Office.

(b) Federal personnel management should be implemented
consistent with the following merit system principles:

(1) Recruitment should be from qualified individuals from
appropriate sources in an endeavor to achieve a work force from all segments
of society, and selection and advancement should be determined solely on the
basis of relative ability, knowledge, and skills, after fair and open
competition which assures that all receive equal opportunity.

(2) All
employees and applicants for employment should receive fair and equitable
treatment in all aspects of personnel management without regard to political
affiliation, race, color, religion, national origin, sex, marital status,
age, or handicapping condition, and with proper regard for their privacy and
constitutional rights.

(3) Equal pay should be provided for work of
equal value, with appropriate consideration of both national and local rates
paid by employers in the private sector, and appropriate incentives and
recognition should be provided for excellence in performance.

(4) All
employees should maintain high standards of integrity, conduct, and concern
for the public interest.

(5) The Federal work force should be used
efficiently and effectively.

(6) Employees should be retained on the
basis of the adequacy of their performance, inadequate performance should be
corrected, and employees should be separated who cannot or will not improve
their performance to meet required standards.

(7) Employees should be
provided effective education and training in cases in which such education
and training would result in better organizational and individual
performance.

(8) Employees should be -

(A) protected against arbitrary action, personal
favoritism, or coercion for partisan political purposes, and

(B)
prohibited from using their official authority or influence for the
purpose of interfering with or affecting the result of an election or a
nomination for election.

(9) Employees should be protected against reprisal for the
lawful disclosure of information which the employees reasonably believe
evidences -

(A) a violation of any law, rule, or regulation, or

(B) mismanagement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or safety.

(c) In administering the provisions of this chapter -

(1) with respect to any agency (as defined in section
2302(a)(2)(C) of this title), the President shall, pursuant to the authority
otherwise available under this title, take any action, including the
issuance of rules, regulations, or directives; and

(2) with respect
to any entity in the executive branch which is not such an agency or part of
such an agency, the head of such entity shall, pursuant to authority
otherwise available, take any action, including the issuance of rules,
regulations, or directives; which is consistent with the provisions of this
title and which the President or the head, as the case may be, determines is
necessary to ensure that personnel management is based on and embodies the
merit system principles.

Source: (Added Pub. L. 95-454, title I, § 101(a), Oct. 13, 1978,
92 Stat. 1113; amended Pub. L. 101-474, § 5(c), Oct. 30, 1990, 104 Stat.
1099.)

AMENDMENTS

1990 - Subsec. (a). Pub. L. 101-474 redesignated par. (3) as (2)
and struck out former par. (2) which provided that this section is applicable to
Administrative Office of United States Courts.

EFFECTIVE DATE

Chapter effective 90 days after Oct. 13, 1978, see section 907
of Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note under
section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2302, 4107, 4313, 5379
of this title; title 10 sections 1612, 1722; title 22 section 3902; title 31
section 732; title 41 section 433; title 42 section 2297b-4.

5
U.S.C. § 2302. Prohibited personnel practices

(a)(1) For the
purpose of this title, ôprohibited personnel practiceö means any action
described in subsection (b).

(2) For the
purpose of this section -

(A)
''personnel action'' means -

(i) an
appointment;

(ii) a
promotion;

(iii) an
action under chapter 75 of this title or other disciplinary or
corrective action;

(iv) a
detail, transfer, or reassignment;

(v) a
reinstatement;

(vi) a
restoration;

(vii) a
reemployment;

(viii) a
performance evaluation under chapter 43 of this title;

(ix) a
decision concerning pay, benefits, or awards, concerning education or
training if the education or training may reasonably be expected to lead
to an appointment, promotion, performance evaluation, or other action
described in this subparagraph;

(x) a
decision to order psychiatric testing or examination; and

(xi) any
other significant change in duties, responsibilities, or working
conditions; with respect to an employee in, or applicant for, a covered
position in an agency, and in the case of an alleged prohibited
personnel practice described in subsection (b)(8), an employee or
applicant for employment in a Government corporation as defined in
section 9101 of title 31;

(B) ''covered
position'' means, with respect to any personnel action, any position in
the competitive service, a career appointee position in the Senior
Executive Service, or a position in the excepted service, but does not
include any position which is, prior to the personnel action -

(i)
excepted from the competitive service because of its confidential,
policy-determining, policy-making, or policy-advocating character;
or

(ii)
excluded from the coverage of this section by the President based on a
determination by the President that it is necessary and warranted by
conditions of good administration; and

(C)
''agency'' means an Executive agency and the Government Printing Office,
but does not include -

(i) a
Government corporation, except in the case of an alleged prohibited
personnel practice described under subsection (b)(8);

(ii) the
Federal Bureau of Investigation, the Central Intelligence Agency, the
Defense Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, and, as determined by the
President, any Executive agency or unit thereof the principal function
of which is the conduct of foreign intelligence or counterintelligence
activities; or

(iii) the
General Accounting Office.

(b) Any employee
who has authority to take, direct others to take, recommend, or approve any
personnel action, shall not, with respect to such authority -

(1)
discriminate for or against any employee or applicant for employment
-

(A) on the
basis of race, color, religion, sex, or national origin, as prohibited
under section 717 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16);

(B) on the
basis of age, as prohibited under sections 12 and 15 of the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

(C) on the
basis of sex, as prohibited under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d));

(D) on the
basis of handicapping condition, as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the
basis of marital status or political affiliation, as prohibited under any
law, rule, or regulation;

(2) solicit or
consider any recommendation or statement, oral or written, with respect to
any individual who requests or is under consideration for any personnel
action unless such recommendation or statement is based on the personal
knowledge or records of the person furnishing it and consists of -

(A) an
evaluation of the work performance, ability, aptitude, or general
qualifications of such individual; or

(B) an
evaluation of the character, loyalty, or suitability of such
individual;

(3) coerce the
political activity of any person (including the providing of any political
contribution or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal of any person to
engage in such political activity;

(4) deceive or
willfully obstruct any person with respect to such person's right to compete
for employment;

(5) influence
any person to withdraw from competition for any position for the purpose of
improving or injuring the prospects of any other person for
employment;

(6) grant any
preference or advantage not authorized by law, rule, or regulation to any
employee or applicant for employment (including defining the scope or manner
of competition or the requirements for any position) for the purpose of
improving or injuring the prospects of any particular person for
employment;

(7) appoint,
employ, promote, advance, or advocate for appointment, employment,
promotion, or advancement, in or to a civilian position any individual who
is a relative (as defined in section 3110(a)(3) of this title) of such
employee if such position is in the agency in which such employee is serving
as a public official (as defined in section 3110(a)(2) of this title) or
over which such employee exercises jurisdiction or control as such an
official;

(8) take or
fail to take, or threaten to take or fail to take, a personnel action with
respect to any employee or applicant for employment because of -

(A) any
disclosure of information by an employee or applicant which the employee
or applicant reasonably believes evidences -

(i) a
violation of any law, rule, or regulation, or

(ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety, if such
disclosure is not specifically prohibited by law and if such information
is not specifically required by Executive order to be kept secret in the
interest of national defense or the conduct of foreign affairs;
or

(B) any
disclosure to the Special Counsel, or to the Inspector General of an
agency or another employee designated by the head of the agency to receive
such disclosures, of information which the employee or applicant
reasonably believes evidences -

(i) a
violation of any law, rule, or regulation, or

(ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety;

(9) take or
fail to take, or threaten to take or fail to take, any personnel action
against any employee or applicant for employment because of -

(A) the
exercise of any appeal, complaint, or grievance right granted by any law,
rule, or regulation;

(B)
testifying for or otherwise lawfully assisting any individual in the
exercise of any right referred to in subparagraph (A);

(C)
cooperating with or disclosing information to the Inspector General of an
agency, or the Special Counsel, in accordance with applicable provisions
of law; or

(D) for
refusing to obey an order that would require the individual to violate a
law;

(10)
discriminate for or against any employee or applicant for employment on the
basis of conduct which does not adversely affect the performance of the
employee or applicant or the performance of others; except that nothing in
this paragraph shall prohibit an agency from taking into account in
determining suitability or fitness any conviction of the employee or
applicant for any crime under the laws of any State, of the District of
Columbia, or of the United States;

(11)(A)
knowingly take, recommend, or approve any personnel action if the taking of
such action would violate a veterans' preference requirement; or

(B) knowingly
fail to take, recommend, or approve any personnel action if the failure to
take such action would violate a veterans' preference requirement;
or

(12) take or
fail to take any other personnel action if the taking of or failure to take
such action violates any law, rule, or regulation implementing, or directly
concerning, the merit system principles contained in section 2301 of this
title. This subsection shall not be construed to authorize the withholding
of information from the Congress or the taking of any personnel action
against an employee who discloses information to the Congress.

(c) The head of
each agency shall be responsible for the prevention of prohibited personnel
practices, for the compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel management, and
for ensuring (in consultation with the Office of Special Counsel) that agency
employees are informed of the rights and remedies available to them under this
chapter and chapter 12 of this title. Any individual to whom the head of an
agency delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of the
delegation.

(d) This section
shall not be construed to extinguish or lessen any effort to achieve equal
employment opportunity through affirmative action or any right or remedy
available to any employee or applicant for employment in the civil service
under -

(1) section 717
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting
discrimination on the basis of race, color, religion, sex, or national
origin;

(2) sections 12
and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631,
633a), prohibiting discrimination on the basis of age;

(3) under
section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)),
prohibiting discrimination on the basis of sex;

(4) section 501
of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting
discrimination on the basis of handicapping condition; or

(5) the
provisions of any law, rule, or regulation prohibiting discrimination on the
basis of marital status or political affiliation.

(e)(1) For the
purpose of this section, the term ôveterans' preference requirementö means any
of the following provisions of law:

(A) Sections
2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b),
3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and (with
respect to a preference eligible referred to in section 7511(a)(1)(B))
subchapter II of chapter 75 and section 7701.

(B) Sections
943(c)(2) and 1784(c) of title 10.

(C) Section
1308(b) of the Alaska National Interest Lands Conservation Act.

(D) Section
301(c) of the Foreign Service Act of 1980.

(E) Sections
106(f), 7281(e), and 7802(5) of title 38.

(F) Section
1005(a) of title 39.

(G) Any other
provision of law that the Director of the Office of Personnel Management
designates in regulations as being a veterans' preference requirement for
the purposes of this subsection.

(H) Any
regulation prescribed under subsection (b) or (c) of section 1302 and any
other regulation that implements a provision of law referred to in any of
the preceding subparagraphs.

(2)
Notwithstanding any other provision of this title, no authority to order
corrective action shall be available in connection with a prohibited
personnel practice described in subsection (b)(11). Nothing in this
paragraph shall be considered to affect any authority under section 1215
(relating to disciplinary action).

Source: (Added Pub.
L. 95-454, title I, § 101(a), Oct. 13, 1978, 92 Stat. 1114; amended Pub. L.
101-12, § 4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101-474, § 5(d), Oct. 30,
1990, 104 Stat. 1099; Pub. L. 102-378, § 2(5), Oct. 2, 1992, 106 Stat. 1346;
Pub. L. 103-94, § 8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L. 103-359, title V,
§ 501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103-424, § 5, Oct. 29, 1994,
108 Stat. 4363; Pub. L. 104-197, title III, § 315(b)(2), Sept. 16, 1996, 110
Stat. 2416, Pub. L. 104-201, div. A, title XI, § 1122(a)(1), title XVI, §
1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105-339, § 6, Oct. 31,
1998, 112 Stat. 3187-88; Pub. L. 108-136, § 921(g), Nov. 24, 2003, 2003, 117
Stat. 1570.)

§ 7121. Grievance procedures

(a) (1) Except as provided in paragraph (2) of this
subsection, any collective bargaining agreement shall provide procedures for
the settlement of grievances, including questions of arbitrability. Except as
provided in subsections (d), (e), and (g) of this section, the procedures
shall be the exclusive administrative procedures for resolving grievances
which fall within its coverage.

(2) Any collective bargaining agreement may exclude any
matter from the application of the grievance procedures which are provided
for in the agreement.

(b) (1) Any negotiated grievance procedure referred to in
subsection (a) of this section shall -

(A) be fair and simple,

(B) provide for expeditious
processing, and

(C) include procedures that -

(i) assure an exclusive representative the right, in its
own behalf or on behalf of any employee in the unit represented by the
exclusive representative, to present and process grievances;

(ii) assure such an employee the right to present a grievance on
the employee's own behalf, and assure the exclusive representative the
right to be present during the grievance proceeding; and

(iii)
provide that any grievance not satisfactorily settled under the
negotiated grievance procedure shall be subject to binding arbitration
which may be invoked by either the exclusive representative or the
agency.

(2) (A) The provisions of a negotiated grievance procedure
providing for binding arbitration in accordance with paragraph (1)(C)(iii)
shall, if or to the extent that an alleged prohibited personnel practice is
involved, allow the arbitrator to order -

(i) a stay of any personnel action in a manner similar
to the manner described in section 1221(c) with respect to the Merit
Systems Protection Board; and

(ii) the taking, by an agency, of
any disciplinary action identified under section 1215(a)(3) that is
otherwise within the authority of such agency to take.

(B) Any employee who is the subject of any disciplinary
action ordered under subparagraph (A)(ii) may appeal such action to the
same extent and in the same manner as if the agency had taken the
disciplinary action absent arbitration.

(c) The preceding subsections of this section shall not apply
with respect to any grievance concerning -

(1) any claimed violation of subchapter III of chapter 73 of
this title (relating to prohibited political activities);

(2)
retirement, life insurance, or health insurance;

(3) a suspension or
removal under section 7532 of this title;

(4) any examination,
certification, or appointment; or

(5) the classification of any
position which does not result in the reduction in grade or pay of an
employee.

(d) An aggrieved employee affected by a prohibited personnel
practice under section 2302(b)(1) of this title which also falls under the
coverage of the negotiated grievance procedure may raise the matter under a
statutory procedure or the negotiated procedure, but not both. An employee
shall be deemed to have exercised his option under this subsection to raise
the matter under either a statutory procedure or the negotiated procedure at
such time as the employee timely initiates an action under the applicable
statutory procedure or timely files a grievance in writing, in accordance with
the provisions of the parties' negotiated procedure, whichever event occurs
first. Selection of the negotiated procedure in no manner prejudices the right
of an aggrieved employee to request the Merit Systems Protection Board to
review the final decision pursuant to section 7702 of this title in the case
of any personnel action that could have been appealed to the Board, or, where
applicable, to request the Equal Employment Opportunity Commission to review a
final decision in any other matter involving a complaint of discrimination of
the type prohibited by any law administered by the Equal Employment
Opportunity Commission.

(e) (1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated grievance
procedure may, in the discretion of the aggrieved employee, be raised either
under the appellate procedures of section 7701 of this title or under the
negotiated grievance procedure, but not both. Similar matters which arise
under other personnel systems applicable to employees covered by this chapter
may, in the discretion of the aggrieved employee, be raised either under the
appellate procedures, if any, applicable to those matters, or under the
negotiated grievance procedure, but not both. An employee shall be deemed to
have exercised his option under this subsection to raise a matter either under
the applicable appellate procedures or under the negotiated grievance
procedure at such time as the employee timely files a notice of appeal under
the applicable appellate procedures or timely files a grievance in writing in
accordance with the provisions of the parties' negotiated grievance procedure,
whichever event occurs first.

(2) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance procedure in
accordance with this section, an arbitrator shall be governed by section
7701(c)(1) of this title, as applicable.

(f) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance procedure in
accordance with this section, section 7703 of this title pertaining to
judicial review shall apply to the award of an arbitrator in the same manner
and under the same conditions as if the matter had been decided by the Board.
In matters similar to those covered under sections 4303 and 7512 of this title
which arise under other personnel systems and which an aggrieved employee has
raised under the negotiated grievance procedure, judicial review of an
arbitrator's award may be obtained in the same manner and on the same basis as
could be obtained of a final decision in such matters raised under applicable
appellate procedures.

(g) (1) This subsection applies with respect to a prohibited
personnel practice other than a prohibited personnel practice to which
subsection (d) applies.

(2) An aggrieved employee affected by a prohibited personnel
practice described in paragraph (1) may elect not more than one of the
remedies described in paragraph (3) with respect thereto. For purposes of
the preceding sentence, a determination as to whether a particular remedy
has been elected shall be made as set forth under paragraph (4).

(3) The remedies described in this paragraph are as
follows:

(A) An appeal to the Merit Systems Protection Board under
section 7701.

(B) A negotiated grievance procedure under this
section.

(C) Procedures for seeking corrective action under
subchapters II and III of chapter 12.

(4) For the purpose of this subsection, a person shall be
considered to have elected -

(A) the remedy described in paragraph (3)(A) if such
person has timely filed a notice of appeal under the applicable appellate
procedures;

(B) the remedy described in paragraph (3)(B) if such
person has timely filed a grievance in writing, in accordance with the
provisions of the parties' negotiated procedure; or

(C) the remedy
described in paragraph (3)(C) if such person has sought corrective action
from the Office of Special Counsel by making an allegation under section
1214(a)(1).

(h) Settlements and awards under this chapter shall be subject
to the limitations in section 5596(b)(4) of this title.

Source: (Added Pub. L. 95-454, title VII, § 701, Oct. 13, 1978,
92 Stat. 1211; amended Pub. L. 103-424, § 9, Oct. 29, 1994, 108 Stat. 4365; Pub.
L. 105-261, § 1104(b), Oct. 17, 1998, 112 Stat. 2142.)

AMENDMENTS

1998 - Subsec. (h). Pub. L. 105-261, § 1104(b), added subsec.
(h).
1994 - Subsec. (a)(1). Pub. L. 103-424, § 9(c), substituted ''(d), (e),
and (g)'' for ''(d) and (e)'' and inserted ''administrative'' after
''exclusive''.

Subsec. (b). Pub. L. 103-424, § 9(a), designated existing
provisions as par. (1) and redesignated former pars. (1) to (3) as subpars. (A)
to (C), respectively, and subpars. (A) to (C) of former par. (3) as cls. (i) to
(iii) of subpar. (a)(1)(C), respectively, and added par. (2).

Subsec.
(g). Pub. L. 103-424, § 9(b), added subsec. (g).

PARTIAL SUSPENSION OF FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS

Subsec. (b)(3)(C) of this section suspended with respect to any
grievance involving the implementation by the United States Forces of any treaty
or agreement, including any minutes or understandings thereto, between the
United States and the Government of the host nation, see section 1(d) of Ex.
Ord. No. 12391, Nov. 4, 1982, 47 F.R. 50457, set out as a note under section
7103 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7116, 7122 of this
title; title 2 section 1351; title 22 section 3701.

5
U.S.C. 7521. Actions Against
Administrative Law Judges

(a) An action may be taken against an administrative law judge
appointed under section 3105 of this title by the agency in which the
administrative law judge is employed only for good cause established and
determined by the Merit Systems Protection Board on the record after
opportunity for hearing before the Board.

(b) The actions covered by
this section are -

(1) a removal;

(2) a
suspension;

(3) a reduction in grade;

(4) a reduction in pay;
and

(5) a furlough of 30 days or less; but do not include -

(A) a suspension or removal under section 7532
of this title;

(B) a reduction-in-force action under section 3502
of this title; or

(C) any action initiated under section 1215 of
this title.

Source: (Added Pub. L. 95-454, title II, § 204(a),
Oct. 13, 1978, 92 Stat. 1137; amended Pub. L. 101-12, § 9(a)(2), Apr. 10,
1989, 103 Stat. 35.)

PRIOR PROVISIONS

A prior section 7521, Pub. L. 89-554, Sept. 6,
1966, 80 Stat. 528; Pub. L. 95-251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183,
related to removal of an administrative law judge appointed under section 3105
of this title, prior to repeal by Pub. L. 95-454, § 204(a).

AMENDMENTS

1989 - Subsec. (b)(C). Pub. L. 101-12 substituted
''1215'' for ''1206''.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101-12 effective 90 days
following Apr. 10, 1989, see section 11 of Pub. L. 101-12, set out as a note
under section 1201 of this title.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see
section 907 of Pub. L. 95-454, set out as an Effective Date of 1978 Amendment
note under section 1101 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 559, 1305,
7502, 7512 of this title; title 15 section 1715; title 29 section 661; title 30
section 823; title 38 section 7101A; title 39 section 3601; title 42 sections
2000e-4, 3608.

5
U.S.C. § 7701. Appellate procedures

(a) An employee,
or applicant for employment, may submit an appeal to the Merit Systems
Protection Board from any action which is appealable to the Board under any
law, rule, or regulation. An appellant shall have the right -

(1) to a
hearing for which a transcript will be kept; and

(2) to be
represented by an attorney or other representative. Appeals shall be
processed in accordance with regulations prescribed by the
Board.

(b)(1) The Board
may hear any case appealed to it or may refer the case to an administrative
law judge appointed under section 3105 of this title or other employee of the
Board designated by the Board to hear such cases, except that in any case
involving a removal from the service, the case shall be heard by the Board, an
employee experienced in hearing appeals, or an administrative law judge. The
Board, administrative law judge, or other employee (as the case may be) shall
make a decision after receipt of the written representations of the parties to
the appeal and after opportunity for a hearing under subsection (a)(1) of this
section. A copy of the decision shall be furnished to each party to the appeal
and to the Office of Personnel Management.

(2)(A) If an
employee or applicant for employment is the prevailing party in an appeal
under this subsection, the employee or applicant shall be granted the relief
provided in the decision effective upon the making of the decision, and
remaining in effect pending the outcome of any petition for review under
subsection (e), unless -

(i) the
deciding official determines that the granting of such relief is not
appropriate; or

(ii)

(I) the
relief granted in the decision provides that such employee or
applicant shall return or be present at the place of employment during
the period pending the outcome of any petition for review under
subsection (e); and

(II) the
employing agency, subject to the provisions of subparagraph (B),
determines that the return or presence of such employee or applicant
is unduly disruptive to the work environment.

(B) If an
agency makes a determination under subparagraph (A)(ii)(II) that prevents
the return or presence of an employee at the place of employment, such
employee shall receive pay, compensation, and all other benefits as terms
and conditions of employment during the period pending the outcome of any
petition for review under subsection (e).

(C) Nothing
in the provisions of this paragraph may be construed to require any award
of back pay or attorney fees be paid before the decision is final.

(3) With
respect to an appeal from an adverse action covered by subchapter V of
chapter 75, authority to mitigate the personnel action involved shall be
available, subject to the same standards as would apply in an appeal
involving an action covered by subchapter II of chapter 75 with respect to
which mitigation authority under this section exists.

(c)(1) Subject to
paragraph (2) of this subsection, the decision of the agency shall be
sustained under subsection (b) only if the agency's decision -

(A) in the
case of an action based on unacceptable performance described in section
4303 or a removal from the Senior Executive Service for failure to be
recertified under section 3393a, is supported by substantial evidence;
or

(B) in any
other case, is supported by a preponderance of the evidence.

(2)
Notwithstanding paragraph (1), the agency's decision may not be sustained
under subsection (b) of this section if the employee or applicant for
employment -

(A) shows
harmful error in the application of the agency's procedures in arriving at
such decision;

(B) shows
that the decision was based on any prohibited personnel practice described
in section 2302(b) of this title; or

(C) shows
that the decision was not in accordance with law.

(d)(1) In any
case in which -

(A) the
interpretation or application of any civil service law, rule, or
regulation, under the jurisdiction of the Office of Personnel Management
is at issue in any proceeding under this section; and

(B) the
Director of the Office of Personnel Management is of the opinion that an
erroneous decision would have a substantial impact on any civil service
law, rule, or regulation under the jurisdiction of the Office; the
Director may as a matter of right intervene or otherwise participate in
that proceeding before the Board. If the Director exercises his right to
participate in a proceeding before the Board, he shall do so as early in
the proceeding as practicable. Nothing in this title shall be construed to
permit the Office to interfere with the independent decisionmaking of the
Merit Systems Protection Board.

(2) The Board
shall promptly notify the Director whenever the interpretation of any civil
service law, rule, or regulation under the jurisdiction of the Office is at
issue in any proceeding under this section.

(e)(1) Except as
provided in section 7702 of this title, any decision under subsection (b) of
this section shall be final unless -

(A) a party
to the appeal or the Director petitions the Board for review within 30
days after the receipt of the decision; or

(B) the Board
reopens and reconsiders a case on its own motion. The Board, for good
cause shown, may extend the 30-day period referred to in subparagraph (A)
of this paragraph. One member of the Board may grant a petition or
otherwise direct that a decision be reviewed by the full Board. The
preceding sentence shall not apply if, by law, a decision of an
administrative law judge is required to be acted upon by the Board.

(2) The
Director may petition the Board for a review under paragraph (1) of this
subsection only if the Director is of the opinion that the decision is
erroneous and will have a substantial impact on any civil service law, rule,
or regulation under the jurisdiction of the Office.

(f) The Board, or
an administrative law judge or other employee of the Board designated to hear
a case, may -

(1) consolidate
appeals filed by two or more appellants, or

(2) join two or
more appeals filed by the same appellant and hear and decide them
concurrently, if the deciding official or officials hearing the cases are of
the opinion that the action could result in the appeals' being processed
more expeditiously and would not adversely affect any party.

(g)(1) Except as
provided in paragraph (2) of this subsection, the Board, or an administrative
law judge or other employee of the Board designated to hear a case, may
require payment by the agency involved of reasonable attorney fees incurred by
an employee or applicant for employment if the employee or applicant is the
prevailing party and the Board, administrative law judge, or other employee
(as the case may be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited personnel
practice was engaged in by the agency or any case in which the agency's action
was clearly without merit.

(2) If an
employee or applicant for employment is the prevailing party and the
decision is based on a finding of discrimination prohibited under section
2302(b)(1) of this title, the payment of attorney fees shall be in
accordance with the standards prescribed under section 706(k) of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5(k)).

(h) The Board
may, by regulation, provide for one or more alternative methods for settling
matters subject to the appellate jurisdiction of the Board which shall be
applicable at the election of an applicant for employment or of an employee
who is not in a unit for which a labor organization is accorded exclusive
recognition, and shall be in lieu of other procedures provided for under this
section. A decision under such a method shall be final, unless the Board
reopens and reconsiders a case at the request of the Office of Personnel
Management under subsection (e) of this section.

(i)(1) Upon the
submission of any appeal to the Board under this section, the Board, through
reference to such categories of cases, or other means, as it determines
appropriate, shall establish and announce publicly the date by which it
intends to complete action on the matter. Such date shall assure expeditious
consideration of the appeal, consistent with the interests of fairness and
other priorities of the Board. If the Board fails to complete action on the
appeal by the announced date, and the expected delay will exceed 30 days, the
Board shall publicly announce the new date by which it intends to complete
action on the appeal.

(2) Not later
than March 1 of each year, the Board shall submit to the Congress a report
describing the number of appeals submitted to it during the preceding fiscal
year, the number of appeals on which it completed action during that year,
and the number of instances during that year in which it failed to conclude
a proceeding by the date originally announced, together with an explanation
of the reasons therefor.

(3) The Board
shall by rule indicate any other category of significant Board action which
the Board determines should be subject to the provisions of this
subsection.

(4) It shall be
the duty of the Board, an administrative law judge, or employee designated
by the Board to hear any proceeding under this section to expedite to the
extent practicable that proceeding.

(j) In
determining the appealability under this section of any case involving a
removal from the service (other than the removal of a reemployed annuitant),
neither an individual's status under any retirement system established by or
under Federal statute nor any election made by such individual under any such
system may be taken into account.

(k) The Board may
prescribe regulations to carry out the purpose of this section.

Source: (Pub. L.
89-554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 95-454, title II, § 205, Oct. 13,
1978, 92 Stat. 1138; Pub. L. 96-54, § 2(a)(45), Aug. 14, 1979, 93 Stat. 384;
Pub. L. 99-386, title II, § 208, Aug. 22, 1986, 100 Stat. 824; Pub. L. 101-12, §
6, Apr. 10, 1989, 103 Stat. 33; Pub. L. 101-194, title V, § 506(b)(6), Nov. 30,
1989, 103 Stat. 1758; Pub. L. 101-280, § 6(d)(2), May 4, 1990, 104 Stat. 160;
Pub. L. 101-376, § 3, Aug. 17, 1990, 104 Stat. 462; Pub. L. 102-175, § 5, Dec.
2, 1991, 105 Stat. 1223; Pub. L. 102-378, § 2(56), Oct. 2, 1992, 106 Stat.
1354.)

5 U.S.C. § 7702. Actions involving discrimination

(a)(1)
Notwithstanding any other provision of law, and except as provided in
paragraph (2) of this subsection, in the case of any employee or applicant for
employment who -

(A) has been
affected by an action which the employee or applicant may appeal to the
Merit Systems Protection Board, and

(B) alleges
that a basis for the action was discrimination prohibited by -

(i) section
717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),

(ii)
section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(d)),

(iii)
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),

(iv)
sections 12 and 15 of the Age Discrimination in Employment Act of 1967
(29 U.S.C. 631, 633a), or

(v) any
rule, regulation, or policy directive prescribed under any provision of
law described in clauses (i) through (iv) of this subparagraph, the
Board shall, within 120 days of the filing of the appeal, decide both
the issue of discrimination and the appealable action in accordance with
the Board's appellate procedures under section 7701 of this title and
this section.

(2) In any
matter before an agency which involves -

(A) any
action described in paragraph (1)(A) of this subsection; and

(B) any issue
of discrimination prohibited under any provision of law described in
paragraph (1)(B) of this subsection; the agency shall resolve such matter
within 120 days. The decision of the agency in any such matter shall be a
judicially reviewable action unless the employee appeals the matter to the
Board under paragraph (1) of this subsection.

(3) Any
decision of the Board under paragraph (1) of this subsection shall be a
judicially reviewable action as of -

(A) the date
of issuance of the decision if the employee or applicant does not file a
petition with the Equal Employment Opportunity Commission under subsection
(b)(1) of this section, or

(B) the date
the Commission determines not to consider the decision under subsection
(b)(2) of this section.

(b)(1) An
employee or applicant may, within 30 days after notice of the decision of the
Board under subsection (a)(1) of this section, petition the Commission to
consider the decision.

(2) The
Commission shall, within 30 days after the date of the petition, determine
whether to consider the decision. A determination of the Commission not to
consider the decision may not be used as evidence with respect to any issue
of discrimination in any judicial proceeding concerning that issue.

(3) If the
Commission makes a determination to consider the decision, the Commission
shall, within 60 days after the date of the determination, consider the
entire record of the proceedings of the Board and, on the basis of the
evidentiary record before the Board, as supplemented under paragraph (4) of
this subsection, either -

(A) concur in
the decision of the Board; or

(B) issue in
writing another decision which differs from the decision of the Board to
the extent that the Commission finds that, as a matter of law -

(i) the
decision of the Board constitutes an incorrect interpretation of any
provision of any law, rule, regulation, or policy directive referred to
in subsection (a)(1)(B) of this section, or

(ii) the
decision involving such provision is not supported by the evidence in
the record as a whole.

(4) In
considering any decision of the Board under this subsection, the Commission
may refer the case to the Board, or provide on its own, for the taking
(within such period as permits the Commission to make a decision within the
60-day period prescribed under this subsection) of additional evidence to
the extent it considers necessary to supplement the record.

(5)(A) If the
Commission concurs pursuant to paragraph (3)(A) of this subsection in the
decision of the Board, the decision of the Board shall be a judicially
reviewable action.

(B)
If the Commission issues any decision under paragraph (3)(B) of this
subsection, the Commission shall immediately refer the matter to the
Board.

(c) Within 30
days after receipt by the Board of the decision of the Commission under
subsection (b)(5)(B) of this section, the Board shall consider the decision
and -

(1) concur and
adopt in whole the decision of the Commission; or

(2) to the
extent that the Board finds that, as a matter of law,

(A) the
Commission decision constitutes an incorrect interpretation of any
provision of any civil service law, rule, regulation or policy directive,
or

(B) the
Commission decision involving such provision is not supported by the
evidence in the record as a whole -

(i)
reaffirm the initial decision of the Board; or

(ii)
reaffirm the initial decision of the Board with such revisions as it
determines appropriate. If the Board takes the action provided under
paragraph (1), the decision of the Board shall be a judicially
reviewable action.

(d)(1) If the
Board takes any action under subsection (c)(2) of this section, the matter
shall be immediately certified to a special panel described in paragraph (6)
of this subsection. Upon certification, the Board shall, within 5 days
(excluding Saturdays, Sundays, and holidays), transmit to the special panel
the administrative record in the proceeding, including -

(A) the
factual record compiled under this section,

(B) the
decisions issued by the Board and the Commission under this section,
and

(C) any
transcript of oral arguments made, or legal briefs filed, before the Board
or the Commission.

(2)(A) The
special panel shall, within 45 days after a matter has been certified to it,
review the administrative record transmitted to it and, on the basis of the
record, decide the issues in dispute and issue a final decision which shall
be a judicially reviewable action.

(B) The
special panel shall give due deference to the respective expertise of the
Board and Commission in making its decision.

(3) The special
panel shall refer its decision under paragraph (2) of this subsection to the
Board and the Board shall order any agency to take any action appropriate to
carry out the decision.

(4) The special
panel shall permit the employee or applicant who brought the complaint and
the employing agency to appear before the panel to present oral arguments
and to present written arguments with respect to the matter.

(5) Upon
application by the employee or applicant, the Commission may issue such
interim relief as it determines appropriate to mitigate any exceptional
hardship the employee or applicant might otherwise incur as a result of the
certification of any matter under this subsection, except that the
Commission may not stay, or order any agency to review on an interim basis,
the action referred to in subsection (a)(1) of this section.

(6)(A) Each
time the Board takes any action under subsection (c)(2) of this section, a
special panel shall be convened which shall consist of -

(i) an
individual appointed by the President, by and with the advice and
consent of the Senate, to serve for a term of 6 years as chairman of the
special panel each time it is convened;

(ii) one
member of the Board designated by the Chairman of the Board each time a
panel is convened; and

(iii) one
member of the Commission designated by the Chairman of the Commission
each time a panel is convened. The chairman of the special panel may be
removed by the President only for inefficiency, neglect of duty, or
malfeasance in office.

(B) The
chairman is entitled to pay at a rate equal to the maximum annual rate of
basic pay payable under the General Schedule for each day he is engaged in
the performance of official business on the work of the special
panel.

(C) The Board
and the Commission shall provide such administrative assistance to the
special panel as may be necessary and, to the extent practicable, shall
equally divide the costs of providing the administrative
assistance.

(e)(1)
Notwithstanding any other provision of law, if at any time after -

(A) the 120th
day following the filing of any matter described in subsection (a)(2) of
this section with an agency, there is not judicially reviewable action
under this section or an appeal under paragraph (2) of this
subsection;

(B) the 120th
day following the filing of an appeal with the Board under subsection
(a)(1) of this section, there is no judicially reviewable action (unless
such action is not as the result of the filing of a petition by the
employee under subsection (b)(1) of this section); or

(C) the 180th
day following the filing of a petition with the Equal Employment
Opportunity Commission under subsection (b)(1) of this section, there is
no final agency action under subsection (b), (c), or (d) of this section;
an employee shall be entitled to file a civil action to the same extent
and in the same manner as provided in section 717(c) of the Civil Rights
Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or section
16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)).

(2) If, at any
time after the 120th day following the filing of any matter described in
subsection (a)(2) of this section with an agency, there is no judicially
reviewable action, the employee may appeal the matter to the Board under
subsection (a)(1) of this section.

(3) Nothing in
this section shall be construed to affect the right to trial de novo under
any provision of law described in subsection (a)(1) of this section after a
judicially reviewable action, including the decision of an agency under
subsection (a)(2) of this section.

(f) In any case
in which an employee is required to file any action, appeal, or petition under
this section and the employee timely files the action, appeal, or petition
with an agency other than the agency with which the action, appeal, or
petition is to be filed, the employee shall be treated as having timely filed
the action, appeal, or petition as of the date it is filed with the proper
agency.

Source: (Added Pub.
L. 95-454, title II, § 205, Oct. 13, 1978, 92 Stat. 1140; amended Pub. L. 96-54,
§ 2(a)(46), Aug. 14, 1979, 93 Stat. 384.)

5 U.S.C. § 7703. Judicial review of decisions of the Merit
Systems Protection Board

(a)(1) Any
employee or applicant for employment adversely affected or aggrieved by a
final order or decision of the Merit Systems Protection Board may obtain
judicial review of the order or decision.

(2) The Board
shall be named respondent in any proceeding brought pursuant to this
subsection, unless the employee or applicant for employment seeks review of
a final order or decision on the merits on the underlying personnel action
or on a request for attorney fees, in which case the agency responsible for
taking the personnel action shall be the respondent.

(b)(1) Except as
provided in paragraph (2) of this subsection, a petition to review a final
order or final decision of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding any other provision of
law, any petition for review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of the
Board.

(2) Cases of
discrimination subject to the provisions of section 7702 of this title shall
be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of
1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act
of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any
other provision of law, any such case filed under any such section must be
filed within 30 days after the date the individual filing the case received
notice of the judicially reviewable action under such section
7702.

(c) In any case
filed in the United States Court of Appeals for the Federal Circuit, the court
shall review the record and hold unlawful and set aside any agency action,
findings, or conclusions found to be -

(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law;

(2) obtained
without procedures required by law, rule, or regulation having been
followed; or

(3) unsupported
by substantial evidence; except that in the case of discrimination brought
under any section referred to in subsection (b)(2) of this section, the
employee or applicant shall have the right to have the facts subject to
trial de novo by the reviewing court.

(d) The Director
of the Office of Personnel Management may obtain review of any final order or
decision of the Board by filing, within 60 days after the date the Director
received notice of the final order or decision of the Board, a petition for
judicial review in the United States Court of Appeals for the Federal Circuit
if the Director determines, in his discretion, that the Board erred in
interpreting a civil service law, rule, or regulation affecting personnel
management and that the Board's decision will have a substantial impact on a
civil service law, rule, regulation, or policy directive. If the Director did
not intervene in a matter before the Board, the Director may not petition for
review of a Board decision under this section unless the Director first
petitions the Board for a reconsideration of its decision, and such petition
is denied. In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the right to appear in
the proceeding before the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of Appeals.

Source: (Added Pub.
L. 95-454, title II, § 205, Oct. 13, 1978, 92 Stat. 1143; amended Pub. L.
97-164, title I, § 144, Apr. 2, 1982, 96 Stat. 45; Pub. L. 101-12, § 10, Apr.
10, 1989, 103 Stat. 35; Pub. L. 105-311 , § 10(a), Oct. 30, 1998, 112 Stat.
2954.)

5 U.S.C. § 1221. Individual right of action in certain reprisal
cases

(a) Subject to
the provisions of subsection (b) of this section and subsection 1214(a)(3), an
employee, former employee, or applicant for employment may, with respect to
any personnel action taken, or proposed to be taken, against such employee,
former employee, or applicant for employment, as a result of a prohibited
personnel practice described in section 2302(b)(8), seek corrective action
from the Merit Systems Protection Board.

(b) This section
may not be construed to prohibit any employee, former employee, or applicant
for employment from seeking corrective action from the Merit Systems
Protection Board before seeking corrective action from the Special Counsel, if
such employee, former employee, or applicant for employment has the right to
appeal directly to the Board under any law, rule, or regulation.

(c)(1) Any
employee, former employee, or applicant for employment seeking corrective
action under subsection (a) may request that the Board order a stay of the
personnel action involved.

(2) Any stay
requested under paragraph (1) shall be granted within 10 calendar days
(excluding Saturdays, Sundays, and legal holidays) after the date the
request is made, if the Board determines that such a stay would be
appropriate.

(3)(A) The
Board shall allow any agency which would be subject to a stay under this
subsection to comment to the Board on such stay request.

(B) Except as
provided in subparagraph (C), a stay granted under this subsection shall
remain in effect for such period as the Board determines to be
appropriate.

(C) The Board
may modify or dissolve a stay under this subsection at any time, if the
Board determines that such a modification or dissolution is
appropriate.

(d)(1) At the
request of an employee, former employee, or applicant for employment seeking
corrective action under subsection (a), the Board shall issue a subpoena for
the attendance and testimony of any person or the production of documentary or
other evidence from any person if the Board finds that the testimony or
production requested is not unduly burdensome and appears reasonably
calculated to lead to the discovery of admissible evidence.

(2) A subpoena
under this subsection may be issued, and shall be enforced, in the same
manner as applies in the case of subpoenas under section 1204.

(e)(1) Subject to
the provisions of paragraph (2), in any case involving an alleged prohibited
personnel practice as described under section 2302(b)(8), the Board shall
order such corrective action as the Board considers appropriate if the
employee, former employee, or applicant for employment has demonstrated that a
disclosure described under section 2302(b)(8) was a contributing factor in the
personnel action which was taken or is to be taken against such employee,
former employee, or applicant. The employee may demonstrate that the
disclosure was a contributing factor in the personnel action through
circumstantial evidence, such as evidence that -

(A) the
official taking the personnel action knew of the disclosure; and

(B) the
personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure was a contributing factor in the
personnel action.

(2) Corrective
action under paragraph (1) may not be ordered if the agency demonstrates by
clear and convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.

(f)(1) A final
order or decision shall be rendered by the Board as soon as practicable after
the commencement of any proceeding under this section.

(2) A decision
to terminate an investigation under subchapter II may not be considered in
any action or other proceeding under this section.

(3) If, based
on evidence presented to it under this section, the Merit Systems Protection
Board determines that there is reason to believe that a current employee may
have committed a prohibited personnel practice, the Board shall refer the
matter to the Special Counsel to investigate and take appropriate action
under section 1215.

(g)(1)(A) If the
Board orders corrective action under this section, such corrective action may
include -

(i) that
the individual be placed, as nearly as possible, in the position the
individual would have been in had the prohibited personnel practice not
occurred; and

(ii) back
pay and related benefits, medical costs incurred, travel expenses, and
any other reasonable and foreseeable consequential changes.

(B)
Corrective action shall include attorney's fees and costs as provided for
under paragraphs (2) and (3).

(2) If an
employee, former employee, or applicant for employment is the prevailing
party before the Merit Systems Protection Board, and the decision is based
on a finding of a prohibited personnel practice, the agency involved shall
be liable to the employee, former employee, or applicant for reasonable
attorney's fees and any other reasonable costs incurred.

(3) If an
employee, former emloyee,1 or
applicant for employment is the prevailing party in an appeal from the Merit
Systems Protection Board, the agency involved shall be liable to the
employee, former employee, or applicant for reasonable attorney's fees and
any other reasonable costs incurred, regardless of the basis of the
decision. [Footnote 1: So in original. Probably should
be ''employee,''.]

(h)(1) An
employee, former employee, or applicant for employment adversely affected or
aggrieved by a final order or decision of the Board under this section may
obtain judicial review of the order or decision.

(2) A petition
for review under this subsection shall be filed with such court, and within
such time, as provided for under section 7703(b).

(i) Subsections
(a) through (h) shall apply in any proceeding brought under section 7513(d)
if, or to the extent that, a prohibited personnel practice as defined in
section 2302(b)(8) is alleged.

(j) In
determining the appealability of any case involving an allegation made by an
individual under the provisions of this chapter, neither the status of an
individual under any retirement system established under a Federal statute nor
any election made by such individual under any such system may be taken into
account.

Source: (Added Pub.
L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103-424, §
4, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365.)

5 U.S.C. § 3330a. Preference eligibles; administrative
redress

(a)(1) A
preference eligible who alleges that an agency has violated such individual's
rights under any statute or regulation relating to veterans' preference may
file a complaint with the Secretary of Labor.

(2)(A) A
complaint under this subsection must be filed within 60 days after the date
of the alleged violation.

(B) Such
complaint shall be in writing, be in such form as the Secretary may
prescribe, specify the agency against which the complaint is filed, and
contain a summary of the allegations that form the basis for the
complaint.

(3) The
Secretary shall, upon request, provide technical assistance to a potential
complainant with respect to a complaint under this
subsection.

(b)(1) The
Secretary of Labor shall investigate each complaint under subsection
(a).

(2) In carrying
out any investigation under this subsection, the Secretary's duly authorized
representatives shall, at all reasonable times, have reasonable access to,
for purposes of examination, and the right to copy and receive, any
documents of any person or agency that the Secretary considers relevant to
the investigation.

(3) In carrying
out any investigation under this subsection, the Secretary may require by
subpoena the attendance and testimony of witnesses and the production of
documents relating to any matter under investigation. In case of
disobedience of the subpoena or contumacy and on request of the Secretary,
the Attorney General may apply to any district court of the United States in
whose jurisdiction such disobedience or contumacy occurs for an order
enforcing the subpoena.

(4) Upon
application, the district courts of the United States shall have
jurisdiction to issue writs commanding any person or agency to comply with
the subpoena of the Secretary or to comply with any order of the Secretary
made pursuant to a lawful investigation under this subsection and the
district courts shall have jurisdiction to punish failure to obey a subpoena
or other lawful order of the Secretary as a contempt of court.

(c)(1)(A) If the
Secretary of Labor determines as a result of an investigation under subsection
(b) that the action alleged in a complaint under subsection (a) occurred, the
Secretary shall attempt to resolve the complaint by making reasonable efforts
to ensure that the agency specified in the complaint complies with applicable
provisions of statute or regulation relating to veterans' preference.

(B) The
Secretary of Labor shall make determinations referred to in subparagraph
(A) based on a preponderance of the evidence.

(2) If the
efforts of the Secretary under subsection (b) with respect to a complaint
under subsection (a) do not result in the resolution of the complaint, the
Secretary shall notify the person who submitted the complaint, in writing,
of the results of the Secretary's investigation under subsection (b).

(d)(1) If the
Secretary of Labor is unable to resolve a complaint under subsection (a)
within 60 days after the date on which it is filed, the complainant may elect
to appeal the alleged violation to the Merit Systems Protection Board in
accordance with such procedures as the Merit Systems Protection Board shall
prescribe, except that in no event may any such appeal be brought

(A) before
the 61st day after the date on which the complaint is filed; or

(B) later
than 15 days after the date on which the complainant receives written
notification from the Secretary under subsection (c)(2).

(2) An appeal
under this subsection may not be brought unless -

(A) the
complainant first provides written notification to the Secretary of such
complainant's intention to bring such appeal; and

(B)
appropriate evidence of compliance with subparagraph (A) is included (in
such form and manner as the Merit Systems Protection Board may prescribe)
with the notice of appeal under this subsection.

(3) Upon
receiving notification under paragraph (2)(A), the Secretary shall not
continue to investigate or further attempt to resolve the complaint to which
the notification relates.

(e)(1) This
section shall not be construed to prohibit a preference eligible from
appealing directly to the Merit Systems Protection Board from any action which
is appealable to the Board under any other law, rule, or regulation, in lieu
of administrative redress under this section.

(2) A
preference eligible may not pursue redress for an alleged violation
described in subsection (a) under this section at the same time the
preference eligible pursues redress for such violation under any other law,
rule, or regulation.

Source: (Pub. L.
105-339, § 3a, Oct. 31, 1998, 112 Stat. 3182.)

5 U.S.C. § 3330b. Preference eligibles; judicial
redress

(a) In lieu of
continuing the administrative redress procedure provided under section
3330a(d), a preference eligible may elect, in accordance with this section, to
terminate those administrative proceedings and file an action with the
appropriate United States district court not later than 60 days after the date
of the election.

(b) An election
under this section may not be made -

(1) before the
121st day after the date on which the appeal is filed with the Merit Systems
Protection Board under section 3330a(d); or

(2) after the
Merit Systems Protection Board has issued a judicially reviewable decision
on the merits of the appeal.

(c) An election
under this section shall be made, in writing, in such form and manner as the
Merit Systems Protection Board shall by regulation prescribe. The election
shall be effective as of the date on which it is received, and the
administrative proceeding to which it relates shall terminate immediately upon
the receipt of such election.

Source: (Pub. L.
105-339, § 3(a), Oct. 31, 1998, 112 Stat. 3184.)

5 U.S.C. § 3330c. Preference eligibles; remedy

(a) If the Merit
Systems Protection Board (in a proceeding under section 3330a) or a court (in
a proceeding under section 3330b) determines that an agency has violated a
right described in section 3330a, the Board or court (as the case may be)
shall order the agency to comply with such provisions and award compensation
for any loss of wages or benefits suffered by the individual by reason of the
violation involved. If the Board or court determines that such violation was
willful, it shall award an amount equal to backpay as liquidated
damages.

(b) A preference
eligible who prevails in an action under section 3330a or 3330b shall be
awarded reasonable attorney fees, expert witness fees, and other litigation
expenses".

Source: (Pub. L.
105-339, § 3(a), Oct. 31, 1998, 112 Stat. 3184.)

38 U.S.C. § 4322. Enforcement of
employment or reemployment rights

(a) A person who
claims that -

(1) such person
is entitled under this chapter to employment or reemployment rights or
benefits with respect to employment by an employer; and

(2)(A) such
employer has failed or refused, or is about to fail or refuse, to comply
with the provisions of this chapter; or

(B) in the
case that the employer is a Federal executive agency, such employer or the
Office of Personnel Management has failed or refused, or is about to fail
or refuse, to comply with the provisions of this chapter, may file a
complaint with the Secretary in accordance with subsection (b), and the
Secretary shall investigate such complaint.

(b) Such
complaint shall be in writing, be in such form as the Secretary may prescribe,
include the name and address of the employer against whom the complaint is
filed, and contain a summary of the allegations that form the basis for the
complaint.

(c) The Secretary
shall, upon request, provide technical assistance to a potential claimant with
respect to a complaint under this subsection, and when appropriate, to such
claimant's employer.

(d) The Secretary
shall investigate each complaint submitted pursuant to subsection (a). If the
Secretary determines as a result of the investigation that the action alleged
in such complaint occurred, the Secretary shall attempt to resolve the
complaint by making reasonable efforts to ensure that the person or entity
named in the complaint complies with the provisions of this chapter.

(e) If the
efforts of the Secretary with respect to any complaint filed under subsection
(a) do not resolve the complaint, the Secretary shall notify the person who
submitted the complaint of -

(1) the results
of the Secretary's investigation; and

(2) the
complainant's entitlement to proceed under the enforcement of rights
provisions provided under section 4323 (in the case of a person submitting a
complaint against a State or private employer) or section 4324 (in the case
of a person submitting a complaint against a Federal executive agency or the
Office of Personnel Management).

(f) This
subchapter does not apply to any action relating to benefits to be provided
under the Thrift Savings Plan under title 5.

Source: (Added Pub.
L. 103-353, § 2(a), Oct. 13, 1994, 108 Stat. 3164; amended Pub. L. 104-275,
title III, § 311(9), Oct. 9, 1996, 110 Stat. 3335.)

38 U.S.C. § 4324. Enforcement of rights
with respect to Federal executive agencies

(a)(1) A person
who receives from the Secretary a notification pursuant to section 4322(e) may
request that the Secretary refer the complaint for litigation before the Merit
Systems Protection Board. The Secretary shall refer the complaint to the
Office of Special Counsel established by section 1211 of title 5.

(2)(A) If the
Special Counsel is reasonably satisfied that the person on whose behalf a
complaint is referred under paragraph (1) is entitled to the rights or
benefits sought, the Special Counsel (upon the request of the person
submitting the complaint) may appear on behalf of, and act as attorney for,
the person and initiate an action regarding such complaint before the Merit
Systems Protection Board.

(B) If the
Special Counsel declines to initiate an action and represent a person
before the Merit Systems Protection Board under subparagraph (A), the
Special Counsel shall notify such person of that decision.(b) A person may
submit a complaint against a Federal executive agency or the Office of
Personnel Management under this subchapter directly to the Merit Systems
Protection Board if that person -(1) has chosen not to apply to the
Secretary for assistance under section 4322(a);

(2) has
received a notification from the Secretary under section 4322(e);

(3) has chosen
not to be represented before the Board by the Special Counsel pursuant to
subsection (a)(2)(A); or

(4) has
received a notification of a decision from the Special Counsel under
subsection (a)(2)(B).

(c)(1) The Merit
Systems Protection Board shall adjudicate any complaint brought before the
Board pursuant to subsection (a)(2)(A) or (b), without regard as to whether
the complaint accrued before, on, or after October 13, 1994. A person who
seeks a hearing or adjudication by submitting such a complaint under this
paragraph may be represented at such hearing or adjudication in accordance
with the rules of the Board.

(2) If the
Board determines that a Federal executive agency or the Office of Personnel
Management has not complied with the provisions of this chapter relating to
the employment or reemployment of a person by the agency, the Board shall
enter an order requiring the agency or Office to comply with such provisions
and to compensate such person for any loss of wages or benefits suffered by
such person by reason of such lack of compliance.

(3) Any
compensation received by a person pursuant to an order under paragraph (2)
shall be in addition to any other right or benefit provided for by this
chapter and shall not diminish any such right or benefit.

(4) If the
Board determines as a result of a hearing or adjudication conducted pursuant
to a complaint submitted by a person directly to the Board pursuant to
subsection (b) that such person is entitled to an order referred to in
paragraph (2), the Board may, in its discretion, award such person
reasonable attorney fees, expert witness fees, and other litigation
expenses.

(d)(1) A person
adversely affected or aggrieved by a final order or decision of the Merit
Systems Protection Board under subsection (c) may petition the United States
Court of Appeals for the Federal Circuit to review the final order or
decision. Such petition and review shall be in accordance with the procedures
set forth in section 7703 of title 5.

(2) Such person
may be represented in the Federal Circuit proceeding by the Special Counsel
unless the person was not represented by the Special Counsel before the
Merit Systems Protection Board regarding such order or decision.

Source: (Added Pub.
L. 103-353, § 2(a), Oct. 13, 1994, 108 Stat. 3166; amended Pub. L. 104-275,
title III, § 311(11), Oct. 9, 1996, 110 Stat. 3336; Pub. L. 105 368, § 213(a),
Nov. 11, 1998, 112 Stat. 3331.)

§ 1981a. Damages in cases of intentional
discrimination in employment

(a) Right of recovery

(1) Civil rights. In an
action brought by a complaining party under section 706 or 717 of the Civil
Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-16) against a respondent who
engaged in unlawful intentional discrimination (not an employment practice
that is unlawful because of its disparate impact) prohibited under section
703, 704, or 717 of the Act (42 U.S.C. 2000e-2, 2000e-3, 2000e-16), and
provided that the complaining party cannot recover under section 1981 of
this title, the complaining party may recover compensatory and punitive
damages as allowed in subsection (b) of this section, in addition to any
relief authorized by section 706(g) of the Civil Rights Act of 1964, from
the respondent.

(2) Disability. In an
action brought by a complaining party under the powers, remedies, and
procedures set forth in section 706 or 717 of the Civil Rights Act of 1964
(42 U.S.C. 2000e-5, 2000e-16) (as provided in section 107(a) of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section
794a(a)(1) of title 29, respectively) against a respondent who engaged in
unlawful intentional discrimination (not an employment practice that is
unlawful because of its disparate impact) under section 791 of title 29 and
the regulations implementing section 791 of title 29, or who violated the
requirements of section 791 of title 29 or the regulations implementing
section 791 of title 29 concerning the provision of a reasonable
accommodation, or section 102 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act,
against an individual, the complaining party may recover compensatory and
punitive damages as allowed in subsection (b) of this section, in addition
to any relief authorized by section 706(g) of the Civil Rights Act of 1964,
from the respondent.

(3) Reasonable
accommodation and good faith effort. In cases where a discriminatory
practice involves the provision of a reasonable accommodation pursuant to
section 102(b)(5) of the Americans with Disabilities Act of 1990 (42 U.S.C.
12112(b)(5)) or regulations implementing section 791 of title 29, damages
may not be awarded under this section where the covered entity demonstrates
good faith efforts, in consultation with the person with the disability who
has informed the covered entity that accommodation is needed, to identify
and make a reasonable accommodation that would provide such individual with
an equally effective opportunity and would not cause an undue hardship on
the operation of the business.

(b) Compensatory and punitive damages

(1) Determination of
punitive damages. A complaining party may recover punitive damages under
this section against a respondent (other than a government, government
agency or political subdivision) if the complaining party demonstrates that
the respondent engaged in a discriminatory practice or discriminatory
practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.

(2) Exclusions from
compensatory damages. Compensatory damages awarded under this section shall
not include backpay, interest on backpay, or any other type of relief
authorized under section 706(g) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-5(g)).
(3) Limitations. The sum of the amount of compensatory
damages awarded under this section for future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life,
and other nonpecuniary losses, and the amount of punitive damages awarded
under this section, shall not exceed, for each complaining party
-

(A) in the case of a
respondent who has more than 14 and fewer than 101 employees in each of 20
or more calendar weeks in the current or preceding calendar year, $50,000;

(B) in the case of a respondent who has more than 100 and fewer
than 201 employees in each of 20 or more calendar weeks in the current or
preceding calendar year, $100,000; and

(C) in the case of a
respondent who has more than 200 and fewer than 501 employees in each of
20 or more calendar weeks in the current or preceding calendar year,
$200,000; and

(D) in the case of a respondent who has more than
500 employees in each of 20 or more calendar weeks in the current or
preceding calendar year, $300,000.

(4) Construction.
Nothing in this section shall be construed to limit the scope of, or the
relief available under, section 1981 of this title.

(c) Jury trial. If a complaining party seeks compensatory or punitive
damages under this section -

(1) any party may demand
a trial by jury; and

(2) the court shall not inform the jury of the
limitations described in subsection (b)(3) of this
section.

(d) Definitions. As used in this section:

(1) Complaining party.
The term ''complaining party'' means -

(A) in the case of a
person seeking to bring an action under subsection (a)(1) of this section,
the Equal Employment Opportunity Commission, the Attorney General, or a
person who may bring an action or proceeding under title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

(B) in the case
of a person seeking to bring an action under subsection (a)(2) of this
section, the Equal Employment Opportunity Commission, the Attorney
General, a person who may bring an action or proceeding under section
794a(a)(1) of title 29, or a person who may bring an action or proceeding
under title I of the Americans with Disabilities Act of 1990 (42 U.S.C.
12111 et seq.).

(2) Discriminatory
practice. The term ''discriminatory practice'' means the discrimination
described in paragraph (1), or the discrimination or the violation described
in paragraph (2), of subsection (a) of this
section.

Source: (R.S. § 1977A, as added Pub. L. 102-166, title I, § 102, Nov. 21,
1991, 105 Stat. 1072.)

REFERENCES IN TEXT

The Civil Rights Act of 1964, referred to in subsec. (d)(1)(A), is Pub.
L. 88-352, July 2, 1964, 78 Stat. 241, as amended. Title VII of the Act is
classified generally to subchapter VI (Sec. 2000e et seq.) of this chapter. For
complete classification of this Act to the Code, see Short Title note set out
under section 2000a of this title and Tables.

The Americans with
Disabilities Act of 1990, referred to in subsec. (d)(1)(B) is Pub. L. 101-336,
July 26, 1990, 104 Stat. 327, as amended. Title I of the Act is classified
generally to subchapter I (Sec. 12111 et seq.) of chapter 126 of this title. For
complete classification of this Act to the Code, see Short Title note set out
under section 12101 of this title and Tables.

EFFECTIVE DATE

Section effective Nov. 21, 1991, except as otherwise provided, see
section 402 of Pub. L. 102-166, set out as an Effective Date of 1991 Amendment
note under section 1981 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1988 of this title; title 2
sections 1202, 1311; title 3 section 411.