MSPB Laws

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LAWS RELATING TO=20 THE MERIT SYSTEMS PROTECTION BOARD

5=20 U.S.C. 1204	Powers and = Functions=20 of the Merit Systems Protection Board
5=20 U.S.C. 1214	Investigation of Prohibited Personnel Practices -- = Corrective=20 Action
5 = U.S.C.=20 1215	Disciplinary=20 Action
5 = U.S.C.=20 2108	Definitions: Veteran -- Disabled Veteran -- Preference=20 Eligible
5 = U.S.C.=20 2301	Merit = Systems=20 Principles
5 = U.S.C.=20 2302	Prohibited Personnel Practices
5 = U.S.C.=20 7121	Grievance=20 Procedures
5 = U.S.C.=20 7521	Actions = Against = Administrative Law=20 Judges =
5 = U.S.C.=20 7701	Appeals to = the=20 MSPB
5=20 U.S.C. 7702	Actions = Involving=20 Discrimination
5=20 U.S.C. 7703	Judicial = Review of=20 MSPB Decisions
5=20 U.S.C. 1221	Individual = Right of=20 Action (IRA Appeals) in Certain Reprisal Cases=20 (Whistleblowing)
5=20 U.S.C. 3330a	Administrative Appeal=20 Rights Under VEOA (Veterans Employment Opportunities = Act)
5=20 U.S.C. 3330b	VEOA = Appeals: Judicial=20 Redress
5=20 U.S.C. 3330c	VEOA = Appeals:=20 Remedies
38 = U.S.C. 4322	Enforcement of Employment or Reemployment = Rights
38 = U.S.C. 4324	Appeals under=20 USERRA (Uniformed Services Employment and Reemployment Rights=20 Act)
42 = U.S.C.=20 1981a	Damages in = cases of=20 intentional discrimination in=20 employment

=20

5 U.S.C.=20 =A7 1204. Powers and functions of the Merit Systems Protection=20 Board

(a) = The Merit=20 Systems Protection Board shall -

(1) = hear,=20 adjudicate, or provide for the hearing or adjudication, of all = matters=20 within the jurisdiction of the Board under this title, chapter 43 of = title=20 38, or any other law, rule, or regulation, and, subject to otherwise = applicable provisions of law, take final action on any such=20 matter;

(2) = order any=20 Federal agency or employee to comply with any order or decision = issued by=20 the Board under the authority granted under paragraph (1) of this = subsection=20 and enforce compliance with any such order;

(3) = conduct,=20 from time to time, special studies relating to the civil service and = to=20 other merit systems in the executive branch, and report to the = President and=20 to the Congress as to whether the public interest in a civil service = free of=20 prohibited personnel practices is being adequately protected; = and

(4) = review, as=20 provided in subsection (f), rules and regulations of the Office of = Personnel=20 Management.

(b)(1) Any member=20 of the Merit Systems Protection Board, any administrative law judge = appointed=20 by the Board under section 3105 of this title, and any employee of the = Board=20 designated by the Board may administer oaths, examine witnesses, take=20 depositions, and receive evidence.

(2) = Any member=20 of the Board, any administrative law judge appointed by the Board = under=20 section 3105, and any employee of the Board designated by the Board = may,=20 with respect to any individual -

(A) issue=20 subpoenas requiring the attendance and presentation of testimony = of any=20 such individual, and the production of documentary or other = evidence from=20 any place in the United States, any territory or possession of the = United=20 States, the Commonwealth of Puerto Rico, or the District of = Columbia;=20 and

(B) order the=20 taking of depositions from, and responses to written = interrogatories by,=20 any such individual.

(3) = Witnesses=20 (whether appearing voluntarily or under subpoena) shall be paid the = same fee=20 and mileage allowances which are paid subpoenaed witnesses in the = courts of=20 the United States.

(c) = In the case=20 of contumacy or failure to obey a subpoena issued under subsection = (b)(2)(A)=20 or section 1214(b), upon application by the Board, the United States = district=20 court for the district in which the person to whom the subpoena is = addressed=20 resides or is served may issue an order requiring such person to = appear at any=20 designated place to testify or to produce documentary or other = evidence. Any=20 failure to obey the order of the court may be punished by the court as = a=20 contempt thereof.

(d) A = subpoena=20 referred to in subsection (b)(2)(A) may, in the case of any individual = outside=20 the territorial jurisdiction of any court of the United States, be = served in=20 such manner as the Federal Rules of Civil Procedure prescribe for = service of a=20 subpoena in a foreign country. To the extent that the courts of the = United=20 States can assert jurisdiction over such individual, the United States = District Court for the District of Columbia shall have the same = jurisdiction=20 to take any action respecting compliance under this subsection by such = individual that such court would have if such individual were = personally=20 within the jurisdiction of such court.

(e)(1)(A) In any=20 proceeding under subsection (a)(1), any member of the Board may = request from=20 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=20 Merit Systems Protection Board may, during an investigation by the = Office=20 of Special Counsel or during the pendency of any proceeding before = the=20 Board, issue any order which may be necessary to protect a witness = or=20 other individual from harassment, except that an agency (other = than the=20 Office of Special Counsel) may not request any such order with = regard to=20 an investigation by the Office of Special Counsel from the Board = during=20 such investigation.

(ii) An=20 order issued under this subparagraph may be enforced in the same = manner=20 as provided for under paragraph (2) with respect to any order = under=20 subsection (a)(2).

(2)(A) In=20 enforcing compliance with any order under subsection (a)(2), the = Board may=20 order that any employee charged with complying with such order, = other than=20 an employee appointed by the President by and with the advice and = consent of=20 the Senate, shall not be entitled to receive payment for service as = an=20 employee during any period that the order has not been complied = with. The=20 Board shall certify to the Comptroller General of the United States = that=20 such an order has been issued and no payment shall be made out of = the=20 Treasury of the United States for any service specified in such=20 order.

(B) The Board=20 shall prescribe regulations under which any employee who is = aggrieved by=20 the failure of any other employee to comply with an order of the = Board may=20 petition the Board to exercise its authority under subparagraph=20 (A).

(3) = In carrying=20 out any study under subsection (a)(3), the Board shall make such = inquiries=20 as may be necessary and, unless otherwise prohibited by law, shall = have=20 access to personnel records or information collected by the Office = of=20 Personnel Management and may require additional reports from other = agencies=20 as needed.

(f)(1) At any=20 time after the effective date of any rule or regulation issued by the = Director=20 of the Office of Personnel Management in carrying out functions under = section=20 1103, the Board shall review any provision of such rule or regulation = -=20

(A) on its=20 own motion;

(B) on the=20 granting by the Board, in its sole discretion, of any petition for = such=20 review filed with the Board by any interested person, after = consideration=20 of the petition by the Board; or

(C) on the=20 filing of a written complaint by the Special Counsel requesting = such=20 review.

(2) = In=20 reviewing any provision of any rule or regulation pursuant to this=20 subsection, the Board shall declare such provision -

(A) invalid=20 on its face, if the Board determines that such provision would, if = implemented by any agency, on its face, require any employee to = violate=20 section 2302(b); or

(B) invalidly=20 implemented by any agency, if the Board determines that such = provision, as=20 it has been implemented by the agency through any personnel action = taken=20 by the agency or through any policy adopted by the agency in = conformity=20 with such provision, has required any employee to violate section=20 2302(b).

(3) = The=20 Director of the Office of Personnel Management, and the head of any = agency=20 implementing any provision of any rule or regulation under review = pursuant=20 to this subsection, shall have the right to participate in such=20 review.

(4) = The Board=20 shall require any agency -

(A) to cease=20 compliance with any provisions of any rule or regulation which the = Board=20 declares under this subsection to be invalid on its face; = and

(B) to=20 correct any invalid implementation by the agency of any provision = of any=20 rule or regulation which the Board declares under this subsection = to have=20 been invalidly implemented by the agency.=20

(g) = The Board may=20 delegate the performance of any of its administrative functions under = this=20 title to any employee of the Board.

(h) = The Board=20 shall have the authority to prescribe such regulations as may be = necessary for=20 the performance of its functions. The Board shall not issue advisory = opinions.=20 All regulations of the Board shall be published in the Federal=20 Register.

(i) = Except as=20 provided in section 518 of title 28, relating to litigation before the = Supreme=20 Court, attorneys designated by the Chairman of the Board may appear = for the=20 Board, and represent the Board, in any civil action brought in = connection with=20 any function carried out by the Board pursuant to this title or as = otherwise=20 authorized by law.

(j) = The Chairman=20 of the Board may appoint such personnel as may be necessary to perform = the=20 functions of the Board. Any appointment made under this subsection = shall=20 comply with the provisions of this title, except that such appointment = shall=20 not be subject to the approval or supervision of the Office of = Personnel=20 Management or the Executive Office of the President (other than = approval=20 required under section 3324 or subchapter VIII of chapter 33). =

(k) = The Board=20 shall prepare and submit to the President, and, at the same time, to = the=20 appropriate committees of Congress, an annual budget of the expenses = and other=20 items relating to the Board which shall, as revised, be included as a = separate=20 item in the budget required to be transmitted to the Congress under = section=20 1105 of title 31.

(l) = The Board=20 shall submit to the President, and, at the same time, to each House of = the=20 Congress, any legislative recommendations of the Board relating to any = of its=20 functions under this title.

(m)(1) Except as=20 provided in paragraph (2) of this subsection, the Board, or an = administrative=20 law judge or other employee of the Board designated to hear a case = arising=20 under section 1215, may require payment by the agency involved of = reasonable=20 attorney fees incurred by an employee or applicant for employment if = the=20 employee or applicant is the prevailing party and the Board, = administrative=20 law judge, or other employee (as the case may be) determines that = payment by=20 the agency is warranted in the interest of justice, including any case = in=20 which a prohibited personnel practice was engaged in by the agency or = any case=20 in which the agency's action was clearly without merit.

(2) If=20 an employee or applicant for employment is the prevailing party of a = case=20 arising under section 1215 and the decision is based on a finding of = discrimination prohibited under section 2302(b)(1) of this title, = the=20 payment of attorney fees shall be in accordance with the standards=20 prescribed under section 706(k) of the Civil Rights Act of 1964 (42 = U.S.C.=20 2000e-5(k)).

Source: = (Added Pub.=20 L. 95-454, title II, =A7 202(a), Oct. 13, 1978, 92 Stat. 1122, =A7 1205; = amended=20 Pub. L. 97-258, =A7 3(a)(2), Sept. 13, 1982, 96 Stat. 1063; renumbered = =A7 1204 and=20 amended Pub. L. 101-12, =A7 3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. = L. 102-568,=20 title V, =A7 506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L. 103-353, = =A7=20 2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L. 103-424, =A7 2, Oct. = 29, 1994,=20 108 Stat. 4361; Pub. L. 103-446, title XII, =A7 1203(c)(1), Nov. 2, = 1994, 108=20 Stat. 4690.)=20 =E1

5 U.S.C.=20 =A7 1214. Investigation of prohibited personnel practices; corrective=20 action

(a)(1)(A) The=20 Special Counsel shall receive any allegation of a prohibited personnel = practice and shall investigate the allegation to the extent necessary = to=20 determine whether there are reasonable grounds to believe that a = prohibited=20 personnel practice has occurred, exists, or is to be taken.

(B) Within 15=20 days after the date of receiving an allegation of a prohibited = personnel=20 practice under paragraph (1), the Special Counsel shall provide = written=20 notice to the person who made the allegation that -

(i) the=20 allegation has been received by the Special Counsel; and =

(ii) shall=20 include the name of a person at the Office of Special Counsel = who shall=20 serve as a contact with the person making the allegation. =

(C) Unless an=20 investigation is terminated under paragraph (2), the Special = Counsel shall=20 -

(i) within=20 90 days after notice is provided under subparagraph (B), notify = the=20 person who made the allegation of the status of the = investigation and=20 any action taken by the Office of the Special Counsel since the = filing=20 of the allegation;

(ii) notify=20 such person of the status of the investigation and any action = taken by=20 the Office of the Special Counsel since the last notice, at = least every=20 60 days after notice is given under clause (i); and

(iii)=20 notify such person of the status of the investigation and any = action=20 taken by the Special Counsel at such time as determined = appropriate by=20 the Special Counsel.

(D) No later=20 than 10 days before the Special Counsel terminates any = investigation of a=20 prohibited personnel practice, the Special Counsel shall provide a = written=20 status report to the person who made the allegation of the = proposed=20 findings of fact and legal conclusions. The person may submit = written=20 comments about the report to the Special Counsel. The Special = Counsel=20 shall not be required to provide a subsequent written status = report under=20 this subparagraph after the submission of such written = comments.=20

(2)(A) If the=20 Special Counsel terminates any investigation under paragraph (1), = the=20 Special Counsel shall prepare and transmit to any person on whose = allegation=20 the investigation was initiated a written statement notifying the = person of=20 -

(i) the=20 termination of the investigation;

(ii) a=20 summary of relevant facts ascertained by the Special Counsel, = including=20 the facts that support, and the facts that do not support, the=20 allegations of such person;

(iii) the=20 reasons for terminating the investigation; and

(iv) a=20 response to any comments submitted under paragraph = (1)(D).=20

(B) A written=20 statement under subparagraph (A) may not be admissible as evidence = in any=20 judicial or administrative proceeding, without the consent of the = person=20 who received such statement under subparagraph (A). =

(3) = Except in a=20 case in which an employee, former employee, or applicant for = employment has=20 the right to appeal directly to the Merit Systems Protection Board = under any=20 law, rule, or regulation, any such employee, former employee, or = applicant=20 shall seek corrective action from the Special Counsel before seeking = corrective action from the Board. An employee, former employee, or = applicant=20 for employment may seek corrective action from the Board under = section 1221,=20 if such employee, former employee, or applicant seeks corrective = action for=20 a prohibited personnel practice described in section 2302(b)(8) from = the=20 Special Counsel and -

(A)(i) the=20 Special Counsel notifies such employee, former employee, or = applicant that=20 an investigation concerning such employee, former employee, or = applicant=20 has been terminated; and

(ii) no=20 more than 60 days have elapsed since notification was provided = to such=20 employee, former employee, or applicant for employment that such = investigation was terminated; or

(B) 120 days=20 after seeking corrective action from the Special Counsel, such = employee,=20 former employee, or applicant has not been notified by the Special = Counsel=20 that the Special Counsel shall seek corrective action on behalf of = such=20 employee, former employee, or applicant.

(4) = If an=20 employee, former employee, or applicant seeks a corrective action = from the=20 Board under section 1221, pursuant to the provisions of paragraph = (3)(B),=20 the Special Counsel may continue to seek corrective action personal = to such=20 employee, former employee, or applicant only with the consent of = such=20 employee, former employee, or applicant.

(5) = In addition=20 to any authority granted under paragraph (1), the Special Counsel = may, in=20 the absence of an allegation, conduct an investigation for the = purpose of=20 determining whether there are reasonable grounds to believe that a=20 prohibited personnel practice (or a pattern of prohibited personnel=20 practices) has occurred, exists, or is to be taken. =

(b)(1)(A)(i) The=20 Special Counsel may request any member of the Merit Systems Protection = Board=20 to order a stay of any personnel action for 45 days if the Special = Counsel=20 determines that there are reasonable grounds to believe that the = personnel=20 action was taken, or is to be taken, as a result of a prohibited = personnel=20 practice.

(ii) Any=20 member of the Board requested by the Special Counsel to order a = stay=20 under clause (i) shall order such stay unless the member = determines=20 that, under the facts and circumstances involved, such a stay = would not=20 be appropriate.

(iii)=20 Unless denied under clause (ii), any stay under this = subparagraph shall=20 be granted within 3 calendar days (excluding Saturdays, Sundays, = and=20 legal holidays) after the date of the request for the stay by = the=20 Special Counsel.

(B) The Board=20 may extend the period of any stay granted under subparagraph (A) = for any=20 period which the Board considers appropriate.

(C) The Board=20 shall allow any agency which is the subject of a stay to comment = to the=20 Board on any extension of stay proposed under subparagraph = (B).=20

(D) A stay=20 may be terminated by the Board at any time, except that a stay may = not be=20 terminated by the Board -

(i) on its=20 own motion or on the motion of an agency, unless notice and = opportunity=20 for oral or written comments are first provided to the Special = Counsel=20 and the individual on whose behalf the stay was ordered; = or

(ii) on=20 motion of the Special Counsel, unless notice and opportunity for = oral or=20 written comments are first provided to the individual on whose = behalf=20 the stay was ordered.

(2)(A)(i)=20 Except as provided under clause (ii), no later than 240 days after = the date=20 of receiving an allegation of a prohibited personnel practice under=20 paragraph (1), the Special Counsel shall make a determination = whether there=20 are reasonable grounds to believe that a prohibited personnel = practice has=20 occurred, exists, or is to be taken.

(ii) If the=20 Special Counsel is unable to make the required determination = within the=20 240-day period specified under clause (i) and the person = submitting the=20 allegation of a prohibited personnel practice agrees to an = extension of=20 time, the determination shall be made within such additional = period of=20 time as shall be agreed upon between the Special Counsel and the = person=20 submitting the allegation.

(B) If, in=20 connection with any investigation, the Special Counsel determines = that=20 there are reasonable grounds to believe that a prohibited = personnel=20 practice has occurred, exists, or is to be taken which requires = corrective=20 action, the Special Counsel shall report the determination = together with=20 any findings or recommendations to the Board, the agency involved = and to=20 the Office of Personnel Management, and may report such = determination,=20 findings and recommendations to the President. The Special Counsel = may=20 include in the report recommendations for corrective action to be=20 taken.

(C) If, after=20 a reasonable period of time, the agency does not act to correct = the=20 prohibited personnel practice, the Special Counsel may petition = the Board=20 for corrective action.

(D) If the=20 Special Counsel finds, in consultation with the individual subject = to the=20 prohibited personnel practice, that the agency has acted to = correct the=20 prohibited personnel practice, the Special Counsel shall file such = finding=20 with the Board, together with any written comments which the = individual=20 may provide.

(E) A=20 determination by the Special Counsel under this paragraph shall = not be=20 cited or referred to in any proceeding under this paragraph or any = other=20 administrative or judicial proceeding for any purpose, without the = consent=20 of the person submitting the allegation of a prohibited personnel=20 practice.

(3) = Whenever=20 the Special Counsel petitions the Board for corrective action, the = Board=20 shall provide an opportunity for -

(A) oral or=20 written comments by the Special Counsel, the agency involved, and = the=20 Office of Personnel Management; and

(B) written=20 comments by any individual who alleges to be the subject of the = prohibited=20 personnel practice.

(4)(A) The=20 Board shall order such corrective action as the Board considers = appropriate,=20 if the Board determines that the Special Counsel has demonstrated = that a=20 prohibited personnel practice, other than one described in section=20 2302(b)(8), has occurred, exists, or is to be taken.

(B)(i)=20 Subject to the provisions of clause (ii), in any case involving an = alleged=20 prohibited personnel practice as described under section = 2302(b)(8), the=20 Board shall order such corrective action as the Board considers=20 appropriate if the Special Counsel has demonstrated that a = disclosure=20 described under section 2302(b)(8) was a contributing factor in = the=20 personnel action which was taken or is to be taken against the=20 individual.

(ii)=20 Corrective action under clause (i) may not be ordered if the = agency=20 demonstrates by clear and convincing evidence that it would have = taken=20 the same personnel action in the absence of such = disclosure.=20

(c)(1) Judicial=20 review of any final order or decision of the Board under this section = may be=20 obtained by any employee, former employee, or applicant for employment = adversely affected by such order or decision.

(2) = A petition=20 for review under this subsection shall be filed with such court, and = within=20 such time, as provided for under section 7703(b). =

(d)(1) If, in=20 connection with any investigation under this subchapter, the Special = Counsel=20 determines that there is reasonable cause to believe that a criminal = violation=20 has occurred, the Special Counsel shall report the determination to = the=20 Attorney General and to the head of the agency involved, and shall = submit a=20 copy of the report to the Director of the Office of Personnel = Management and=20 the Director of the Office of Management and Budget.

(2) = In any case=20 in which the Special Counsel determines that there are reasonable = grounds to=20 believe that a prohibited personnel practice has occurred, exists, = or is to=20 be taken, the Special Counsel shall proceed with any investigation = or=20 proceeding unless -

(A) the=20 alleged violation has been reported to the Attorney General; = and=20

(B) the=20 Attorney General is pursuing an investigation, in which case the = Special=20 Counsel, after consultation with the Attorney General, has = discretion as=20 to whether to proceed.

(e) = If, in=20 connection with any investigation under this subchapter, the Special = Counsel=20 determines that there is reasonable cause to believe that any = violation of any=20 law, rule, or regulation has occurred other than one referred to in = subsection=20 (b) or (d), the Special Counsel shall report such violation to the = head of the=20 agency involved. The Special Counsel shall require, within 30 days = after the=20 receipt of the report by the agency, a certification by the head of = the agency=20 which states -

(1) = that the=20 head of the agency has personally reviewed the report; and =

(2) = what action=20 has been or is to be taken, and when the action will be = completed.=20

(f) = During any=20 investigation initiated under this subchapter, no disciplinary action = shall be=20 taken against any employee for any alleged prohibited activity under=20 investigation or for any related activity without the approval of the = Special=20 Counsel.

(g) = If the Board=20 orders corrective action under this section, such corrective action = may=20 include -

(1) = that the=20 individual be placed, as nearly as possible, in the position the = individual=20 would have been in had the prohibited personnel practice not = occurred;=20 and

(2) = reimbursement for attorney's fees, back pay and related benefits, = medical=20 costs incurred, travel expenses, and any other reasonable and = foreseeable=20 consequential damages.

Source: = (Added Pub.=20 L. 101-12, =A7 3(a)(13), Apr. 10, 1989, 103 Stat. 23; amended Pub. L. = 103-424, =A7=20 3(c), (d), 8(a), Oct. 29, 1994, 108 Stat. 4362, 4364.)=20

=20

=A7 1215. = Disciplinary=20 action

(a) (1) Except as provided in = subsection (b), if=20 the Special Counsel determines that disciplinary action should be = taken=20 against any employee for having -

(A) committed a prohibited = personnel=20 practice,

(B) violated the provisions of any law, rule, or=20 regulation, or engaged in any other conduct within the = jurisdiction of the=20 Special Counsel as described in section 1216, or

(C) = knowingly and=20 willfully refused or failed to comply with an order of the Merit = Systems=20 Protection Board, the Special Counsel shall prepare a written = complaint=20 against the employee containing the Special Counsel's = determination,=20 together with a statement of supporting facts, and present the = complaint=20 and statement to the employee and the Board, in accordance with = this=20 subsection.

(2) Any employee against whom a = complaint has=20 been presented to the Merit Systems Protection Board under paragraph = (1) is=20 entitled to -

(A) a reasonable time to answer = orally and in=20 writing, and to furnish affidavits and other documentary evidence = in=20 support of the answer;

(B) be represented by an attorney or = other=20 representative;

(C) a hearing before the Board or an = administrative=20 law judge appointed under section 3105 and designated by the=20 Board;

(D) have a transcript kept of any hearing under=20 subparagraph; and

(E) a written decision and reasons = therefor at=20 the earliest practicable date, including a copy of any final order = imposing disciplinary action.

(3) A final order of the Board may = impose=20 disciplinary action consisting of removal, reduction in grade, = debarment=20 from Federal employment for a period not to exceed 5 years, = suspension,=20 reprimand, or an assessment of a civil penalty not to exceed = $1,000.

(4) There may be no administrative = appeal from an=20 order of the Board. An employee subject to a final order imposing=20 disciplinary action under this subsection may obtain judicial review = of the=20 order by filing a petition therefor with such court, and within such = time,=20 as provided for under section 7703(b).

(5) In the case of any State or local = officer or=20 employee under chapter 15, the Board shall consider the case in = accordance=20 with the provisions of such chapter.

(b) In the case of an employee in a = confidential,=20 policy-making, policy-determining, or policy-advocating position = appointed by=20 the President, by and with the advice and consent of the Senate (other = than an=20 individual in the Foreign Service of the United States), the complaint = and=20 statement referred to in subsection (a)(1), together with any response = of the=20 employee, shall be presented to the President for appropriate action = in lieu=20 of being presented under subsection (a).

(c) (1) In the case of members of the = uniformed=20 services and individuals employed by any person under contract with an = agency=20 to provide goods or services, the Special Counsel may transmit = recommendations=20 for disciplinary or other appropriate action (including the evidence = on which=20 such recommendations are based) to the head of the agency = concerned.

(2) In any case in which the Special = Counsel=20 transmits recommendations to an agency head under paragraph (1), the = agency=20 head shall, within 60 days after receiving such recommendations, = transmit a=20 report to the Special Counsel on each recommendation and the action = taken,=20 or proposed to be taken, with respect to each such=20 recommendation.

Source: (Added Pub. L. 101-12, =A7 = 3(a)(13), Apr. 10,=20 1989, 103 Stat. 27.)

SECTION REFERRED TO IN OTHER = SECTIONS

This section is referred to in sections = 1204, 1212,=20 1216, 1219, 1221, 2105, 3393, 7121, 7502, 7512, 7521, 7542 of this = title.

5 U.S.C. =A7 2108. Veteran; disabled veteran; preference = eligible

For the = purpose of=20 this title-=20

(1) = ''veteran''=20 means an individual who-

(A) = served on=20 active duty in the armed forces during a war, in a campaign or = expedition=20 for which a campaign badge has been authorized, or during the period = beginning April 28, 1952, and ending July 1, 1955;

(B) = served on=20 active duty as defined by section 101(21) of title 38 at any time in = the=20 armed forces for a period of more than 180 consecutive days any part = of=20 which occurred after January 31, 1955, and before October 15, 1976, = not=20 including service under section 12103(d) of title 10 pursuant to an=20 enlistment in the Army National Guard or the Air National Guard or = as a=20 Reserve for service in the Army Reserve, Naval Reserve, Air Force = Reserve,=20 Marine Corps Reserve, or Coast Guard Reserve; or

(C) = served on=20 active duty as defined by section 101(21) of title 38 in the armed = forces=20 during the period beginning on August 2, 1990, and ending on January = 2,=20 1992; and who has been separated from the armed forces under = honorable=20 conditions;

(2) = ''disabled=20 veteran'' means an individual who has served on active duty in the = armed=20 forces, has been separated therefrom under honorable conditions, and = has=20 established the present existence of a service-connected disability or = is=20 receiving compensation, disability retirement benefits, or pension = because of=20 a public statute administered by the Department of Veterans Affairs or = a=20 military department;

(3) = ''preference=20 eligible'' means, except as provided in paragraph (4) of this section = -=20

(A) = a veteran=20 as defined by paragraph (1)(A) of this section;

(B) = a veteran=20 as defined by paragraph (1)(B) or (C) of this section;

(C) = a disabled=20 veteran;

(D) = the=20 unmarried widow or widower of a veteran as defined by paragraph = (1)(A) of=20 this section;

(E) = the wife or=20 husband of a service-connected disabled veteran if the veteran has = been=20 unable to qualify for any appointment in the civil service or in the = government of the District of Columbia;

(F) = the mother=20 of an individual who lost his life under honorable conditions while = serving=20 in the armed forces during a period named by paragraph (1)(A) of = this=20 section, if -

(i) her=20 husband is totally and permanently disabled;

(ii) she is=20 widowed, divorced, or separated from the father and has not = remarried;=20 or

(iii) she has=20 remarried but is widowed, divorced, or legally separated from her = husband=20 when preference is claimed; and

(G) = the mother=20 of a service-connected permanently and totally disabled veteran, if = -=20

(i) her=20 husband is totally and permanently disabled;

(ii) she is=20 widowed, divorced, or separated from the father and has not = remarried;=20 or

(iii) she has=20 remarried but is widowed, divorced, or legally separated from her = husband=20 when preference is claimed; but does not include applicants for, = or=20 members of, the Senior Executive Service, the Defense Intelligence = Senior=20 Executive Service, the Senior Cryptologic Executive Service, or = the=20 Federal Bureau of Investigation and Drug Enforcement = Administration Senior=20 Executive Service;

(4) = except for=20 the purposes of chapters 43 and 75 of this title, ''preference = eligible'' does=20 not include a retired member of the armed forces unless -

(A) = the=20 individual is a disabled veteran; or

(B) = the=20 individual retired below the rank of major or its equivalent; = and=20

(5) = ''retired=20 member of the armed forces'' means a member or former member of the = armed=20 forces who is entitled, under statute, to retired, retirement, or = retainer pay=20 on account of service as a member.

Source: = (Pub. L.=20 89-554, Sept. 6, 1966, 80 Stat. 410; Pub. L. 90-83, =A7 1(6), Sept. 11, = 1967, 81=20 Stat. 196; Pub. L. 90-623, =A7 1(2), Oct. 22, 1968, 82 Stat. 1312; Pub. = L. 92-187,=20 =A7 1, Dec. 15, 1971, 85 Stat. 644; Pub. L. 94-502, title VII, =A7 702, = Oct. 15,=20 1976, 90 Stat. 2405; Pub. L. 95-454, title III, =A7 307(a), title IV, = =A7 401(d),=20 Oct. 13, 1978, 92 Stat. 1147, 1154; Pub. L. 96-54, =A7 2(a)(8), (9)(A), = Aug. 14,=20 1979, 93 Stat. 381; Pub. L. 96-191, =A7 8(a), Feb. 15, 1980, 94 Stat. = 33; Pub. L.=20 97-89, title VIII, =A7 801, Dec. 4, 1981, 95 Stat. 1161; Pub. L. = 100-325, =A7 2(a),=20 May 30, 1988, 102 Stat. 581; Pub. L. 102-54, =A7 13(b)(1), June 13, = 1991, 105=20 Stat. 274; Pub. L. 105-85, div. A, title XI, =A7 1102(a), (c), Nov. 18, = 1997, 111=20 Stat. 1922; Pub. L. 105-339, =A7 4, 112 Stat. 3185, Oct. 31, = 1998.)=20

5=20 U.S.C. =A7 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=20 consistent with the following merit system principles:

(1) Recruitment should be from qualified = individuals from=20 appropriate sources in an endeavor to achieve a work force from all = segments=20 of society, and selection and advancement should be determined = solely on the=20 basis of relative ability, knowledge, and skills, after fair and = open=20 competition which assures that all receive equal = opportunity.

(2) All=20 employees and applicants for employment should receive fair and = equitable=20 treatment in all aspects of personnel management without regard to = political=20 affiliation, race, color, religion, national origin, sex, marital = status,=20 age, or handicapping condition, and with proper regard for their = privacy and=20 constitutional rights.

(3) Equal pay should be provided for = work of=20 equal value, with appropriate consideration of both national and = local rates=20 paid by employers in the private sector, and appropriate incentives = and=20 recognition should be provided for excellence in = performance.

(4) All=20 employees should maintain high standards of integrity, conduct, and = concern=20 for the public interest.

(5) The Federal work force should be = used=20 efficiently and effectively.

(6) Employees should be retained = on the=20 basis of the adequacy of their performance, inadequate performance = should be=20 corrected, and employees should be separated who cannot or will not = improve=20 their performance to meet required standards.

(7) Employees = should be=20 provided effective education and training in cases in which such = education=20 and training would result in better organizational and individual=20 performance.

(8) Employees should be -

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

(B)=20 prohibited from using their official authority or influence for = the=20 purpose of interfering with or affecting the result of an election = or a=20 nomination for election.

(9) Employees should be protected against reprisal = for the=20 lawful disclosure of information which the employees reasonably = believe=20 evidences -

(A) a violation of any law, rule, or regulation, = or=20

(B) mismanagement, a gross waste of funds, an abuse of = authority, or=20 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=20 2302(a)(2)(C) of this title), the President shall, pursuant to the = authority=20 otherwise available under this title, take any action, including the = issuance of rules, regulations, or directives; and

(2) with = respect=20 to any entity in the executive branch which is not such an agency or = part of=20 such an agency, the head of such entity shall, pursuant to authority = otherwise available, take any action, including the issuance of = rules,=20 regulations, or directives; which is consistent with the provisions = of this=20 title and which the President or the head, as the case may be, = determines is=20 necessary to ensure that personnel management is based on and = embodies the=20 merit system principles.

Source: (Added Pub. L. 95-454, title I, =A7 101(a), = Oct. 13, 1978,=20 92 Stat. 1113; amended Pub. L. 101-474, =A7 5(c), Oct. 30, 1990, 104 = Stat.=20 1099.)

AMENDMENTS

1990 - Subsec. (a). Pub. L. 101-474 redesignated par. = (3) as (2)=20 and struck out former par. (2) which provided that this section is = applicable to=20 Administrative Office of United States Courts.

EFFECTIVE DATE

Chapter effective 90 days after Oct. 13, 1978, see = section 907=20 of Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note = under=20 section 1101 of this title.

SECTION REFERRED TO IN OTHER = SECTIONS

This section is referred to in sections 2302, 4107, = 4313, 5379=20 of this title; title 10 sections 1612, 1722; title 22 section 3902; = title 31=20 section 732; title 41 section 433; title 42 section 2297b-4.

=20

5=20 U.S.C. =A7 2302. Prohibited personnel practices

(a)(1) For the=20 purpose of this title, =F4prohibited personnel practice=F6 means any = action=20 described in subsection (b).

(2) = For the=20 purpose of this section -

(A)=20 ''personnel action'' means -

(i) an=20 appointment;

(ii) a=20 promotion;

(iii) an=20 action under chapter 75 of this title or other disciplinary or=20 corrective action;

(iv) a=20 detail, transfer, or reassignment;

(v) a=20 reinstatement;

(vi) a=20 restoration;

(vii) a=20 reemployment;

(viii) a=20 performance evaluation under chapter 43 of this title; =

(ix) a=20 decision concerning pay, benefits, or awards, concerning = education or=20 training if the education or training may reasonably be expected = to lead=20 to an appointment, promotion, performance evaluation, or other = action=20 described in this subparagraph;

(x) a=20 decision to order psychiatric testing or examination; and =

(xi) any=20 other significant change in duties, responsibilities, or working = conditions; with respect to an employee in, or applicant for, a = covered=20 position in an agency, and in the case of an alleged prohibited=20 personnel practice described in subsection (b)(8), an employee = or=20 applicant for employment in a Government corporation as defined = in=20 section 9101 of title 31;

(B) ''covered=20 position'' means, with respect to any personnel action, any = position in=20 the competitive service, a career appointee position in the Senior = Executive Service, or a position in the excepted service, but does = not=20 include any position which is, prior to the personnel action = -

(i)=20 excepted from the competitive service because of its = confidential,=20 policy-determining, policy-making, or policy-advocating = character;=20 or

(ii)=20 excluded from the coverage of this section by the President = based on a=20 determination by the President that it is necessary and = warranted by=20 conditions of good administration; and

(C)=20 ''agency'' means an Executive agency and the Government Printing = Office,=20 but does not include -

(i) a=20 Government corporation, except in the case of an alleged = prohibited=20 personnel practice described under subsection (b)(8); =

(ii) the=20 Federal Bureau of Investigation, the Central Intelligence = Agency, the=20 Defense Intelligence Agency, the National = Geospatial-Intelligence=20 Agency, the National Security Agency, and, as determined by the=20 President, any Executive agency or unit thereof the principal = function=20 of which is the conduct of foreign intelligence or = counterintelligence=20 activities; or

(iii) the=20 General Accounting Office. =

(b) = Any employee=20 who has authority to take, direct others to take, recommend, or = approve any=20 personnel action, shall not, with respect to such authority - =

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

(A) on the=20 basis of race, color, religion, sex, or national origin, as = prohibited=20 under section 717 of the Civil Rights Act of 1964 (42 U.S.C.=20 2000e-16);

(B) on the=20 basis of age, as prohibited under sections 12 and 15 of the Age=20 Discrimination in Employment Act of 1967 (29 U.S.C. 631, = 633a);=20

(C) on the=20 basis of sex, as prohibited under section 6(d) of the Fair Labor = Standards=20 Act of 1938 (29 U.S.C. 206(d));

(D) on the=20 basis of handicapping condition, as prohibited under section 501 = of the=20 Rehabilitation Act of 1973 (29 U.S.C. 791); or

(E) on the=20 basis of marital status or political affiliation, as prohibited = under any=20 law, rule, or regulation;

(2) = solicit or=20 consider any recommendation or statement, oral or written, with = respect to=20 any individual who requests or is under consideration for any = personnel=20 action unless such recommendation or statement is based on the = personal=20 knowledge or records of the person furnishing it and consists of = -=20

(A) an=20 evaluation of the work performance, ability, aptitude, or general=20 qualifications of such individual; or

(B) an=20 evaluation of the character, loyalty, or suitability of such=20 individual;

(3) = coerce the=20 political activity of any person (including the providing of any = political=20 contribution or service), or take any action against any employee or = applicant for employment as a reprisal for the refusal of any person = to=20 engage in such political activity;

(4) = deceive or=20 willfully obstruct any person with respect to such person's right to = compete=20 for employment;

(5) = influence=20 any person to withdraw from competition for any position for the = purpose of=20 improving or injuring the prospects of any other person for=20 employment;

(6) = grant any=20 preference or advantage not authorized by law, rule, or regulation = to any=20 employee or applicant for employment (including defining the scope = or manner=20 of competition or the requirements for any position) for the purpose = of=20 improving or injuring the prospects of any particular person for=20 employment;

(7) = appoint,=20 employ, promote, advance, or advocate for appointment, employment,=20 promotion, or advancement, in or to a civilian position any = individual who=20 is a relative (as defined in section 3110(a)(3) of this title) of = such=20 employee if such position is in the agency in which such employee is = serving=20 as a public official (as defined in section 3110(a)(2) of this = title) or=20 over which such employee exercises jurisdiction or control as such = an=20 official;

(8) = take or=20 fail to take, or threaten to take or fail to take, a personnel = action with=20 respect to any employee or applicant for employment because of = -

(A) any=20 disclosure of information by an employee or applicant which the = employee=20 or applicant reasonably believes evidences -

(i) a=20 violation of any law, rule, or regulation, or

(ii) gross=20 mismanagement, a gross waste of funds, an abuse of authority, or = a=20 substantial and specific danger to public health or safety, if = such=20 disclosure is not specifically prohibited by law and if such = information=20 is not specifically required by Executive order to be kept = secret in the=20 interest of national defense or the conduct of foreign affairs;=20 or

(B) any=20 disclosure to the Special Counsel, or to the Inspector General of = an=20 agency or another employee designated by the head of the agency to = receive=20 such disclosures, of information which the employee or applicant=20 reasonably believes evidences -

(i) a=20 violation of any law, rule, or regulation, or

(ii) gross=20 mismanagement, a gross waste of funds, an abuse of authority, or = a=20 substantial and specific danger to public health or = safety;=20

(9) = take or=20 fail to take, or threaten to take or fail to take, any personnel = action=20 against any employee or applicant for employment because of - =

(A) the=20 exercise of any appeal, complaint, or grievance right granted by = any law,=20 rule, or regulation;

(B)=20 testifying for or otherwise lawfully assisting any individual in = the=20 exercise of any right referred to in subparagraph (A);

(C)=20 cooperating with or disclosing information to the Inspector = General of an=20 agency, or the Special Counsel, in accordance with applicable = provisions=20 of law; or

(D) for=20 refusing to obey an order that would require the individual to = violate a=20 law;

(10)=20 discriminate for or against any employee or applicant for employment = on the=20 basis of conduct which does not adversely affect the performance of = the=20 employee or applicant or the performance of others; except that = nothing in=20 this paragraph shall prohibit an agency from taking into account in=20 determining suitability or fitness any conviction of the employee or = applicant for any crime under the laws of any State, of the District = of=20 Columbia, or of the United States;

(11)(A)=20 knowingly take, recommend, or approve any personnel action if the = taking of=20 such action would violate a veterans' preference requirement; = or

(B) knowingly=20 fail to take, recommend, or approve any personnel action if the = failure to=20 take such action would violate a veterans' preference requirement; = or

(12) take or=20 fail to take any other personnel action if the taking of or failure = to take=20 such action violates any law, rule, or regulation implementing, or = directly=20 concerning, the merit system principles contained in section 2301 of = this=20 title. This subsection shall not be construed to authorize the = withholding=20 of information from the Congress or the taking of any personnel = action=20 against an employee who discloses information to the = Congress.=20

(c) = The head of=20 each agency shall be responsible for the prevention of prohibited = personnel=20 practices, for the compliance with and enforcement of applicable civil = service=20 laws, rules, and regulations, and other aspects of personnel = management, and=20 for ensuring (in consultation with the Office of Special Counsel) that = agency=20 employees are informed of the rights and remedies available to them = under this=20 chapter and chapter 12 of this title. Any individual to whom the head = of an=20 agency delegates authority for personnel management, or for any aspect = thereof, shall be similarly responsible within the limits of the=20 delegation.

(d) = This section=20 shall not be construed to extinguish or lessen any effort to achieve = equal=20 employment opportunity through affirmative action or any right or = remedy=20 available to any employee or applicant for employment in the civil = service=20 under -

(1) = section 717=20 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting=20 discrimination on the basis of race, color, religion, sex, or = national=20 origin;

(2) = sections 12=20 and 15 of the Age Discrimination in Employment Act of 1967 (29 = U.S.C. 631,=20 633a), prohibiting discrimination on the basis of age;

(3) = under=20 section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. = 206(d)),=20 prohibiting discrimination on the basis of sex;

(4) = section 501=20 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting=20 discrimination on the basis of handicapping condition; or =

(5) = the=20 provisions of any law, rule, or regulation prohibiting = discrimination on the=20 basis of marital status or political affiliation. =

(e)(1) For the=20 purpose of this section, the term =F4veterans' preference = requirement=F6 means any=20 of the following provisions of law:

(A) Sections=20 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, = 3317(b),=20 3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and = (with=20 respect to a preference eligible referred to in section = 7511(a)(1)(B))=20 subchapter II of chapter 75 and section 7701.

(B) Sections=20 943(c)(2) and 1784(c) of title 10.

(C) Section=20 1308(b) of the Alaska National Interest Lands Conservation = Act.=20

(D) Section=20 301(c) of the Foreign Service Act of 1980.

(E) Sections=20 106(f), 7281(e), and 7802(5) of title 38.

(F) Section=20 1005(a) of title 39.

(G) Any other=20 provision of law that the Director of the Office of Personnel = Management=20 designates in regulations as being a veterans' preference = requirement for=20 the purposes of this subsection.

(H) Any=20 regulation prescribed under subsection (b) or (c) of section 1302 = and any=20 other regulation that implements a provision of law referred to in = any of=20 the preceding subparagraphs.

(2) = Notwithstanding any other provision of this title, no authority to = order=20 corrective action shall be available in connection with a prohibited = personnel practice described in subsection (b)(11). Nothing in this=20 paragraph shall be considered to affect any authority under section = 1215=20 (relating to disciplinary action). =

Source: = (Added Pub.=20 L. 95-454, title I, =A7 101(a), Oct. 13, 1978, 92 Stat. 1114; amended = Pub. L.=20 101-12, =A7 4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101-474, =A7 5(d), = Oct. 30,=20 1990, 104 Stat. 1099; Pub. L. 102-378, =A7 2(5), Oct. 2, 1992, 106 Stat. = 1346;=20 Pub. L. 103-94, =A7 8(c), Oct. 6, 1993, 107 Stat. 1007; Pub. L. 103-359, = title V,=20 =A7 501(c), Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103-424, =A7 5, Oct. = 29, 1994,=20 108 Stat. 4363; Pub. L. 104-197, title III, =A7 315(b)(2), Sept. 16, = 1996, 110=20 Stat. 2416, Pub. L. 104-201, div. A, title XI, =A7 1122(a)(1), title = XVI, =A7=20 1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L. 105-339, =A7 6, = Oct. 31,=20 1998, 112 Stat. 3187-88; Pub. L. 108-136, =A7 921(g), Nov. 24, 2003, = 2003, 117=20 Stat. 1570.)=20

=A7 7121. Grievance procedures =

(a) (1) Except as provided in paragraph (2) of this=20 subsection, any collective bargaining agreement shall provide = procedures for=20 the settlement of grievances, including questions of arbitrability. = Except as=20 provided in subsections (d), (e), and (g) of this section, the = procedures=20 shall be the exclusive administrative procedures for resolving = grievances=20 which fall within its coverage.

(2) Any collective bargaining agreement may = exclude any=20 matter from the application of the grievance procedures which are = provided=20 for in the agreement.

(b) (1) Any negotiated grievance procedure referred = to in=20 subsection (a) of this section shall -

(A) be fair and simple,

(B) provide for = expeditious=20 processing, and

(C) include procedures that -

(i) assure an exclusive representative the = right, in its=20 own behalf or on behalf of any employee in the unit represented = by the=20 exclusive representative, to present and process grievances;=20

(ii) assure such an employee the right to present a = grievance on=20 the employee's own behalf, and assure the exclusive = representative the=20 right to be present during the grievance proceeding; and =

(iii)=20 provide that any grievance not satisfactorily settled under the=20 negotiated grievance procedure shall be subject to binding = arbitration=20 which may be invoked by either the exclusive representative or = the=20 agency.

(2) (A) The provisions of a negotiated grievance = procedure=20 providing for binding arbitration in accordance with paragraph = (1)(C)(iii)=20 shall, if or to the extent that an alleged prohibited personnel = practice is=20 involved, allow the arbitrator to order -

(i) a stay of any personnel action in a manner = similar=20 to the manner described in section 1221(c) with respect to the = Merit=20 Systems Protection Board; and

(ii) the taking, by an = agency, of=20 any disciplinary action identified under section 1215(a)(3) that = is=20 otherwise within the authority of such agency to = take.

(B) Any employee who is the subject of any = disciplinary=20 action ordered under subparagraph (A)(ii) may appeal such action = to the=20 same extent and in the same manner as if the agency had taken the=20 disciplinary action absent = arbitration.

(c) The preceding subsections of this section shall = not apply=20 with respect to any grievance concerning -

(1) any claimed violation of subchapter III of = chapter 73 of=20 this title (relating to prohibited political activities);

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

(3) a = suspension or=20 removal under section 7532 of this title;

(4) any = examination,=20 certification, or appointment; or

(5) the classification of = any=20 position which does not result in the reduction in grade or pay of = an=20 employee.

(d) An aggrieved employee affected by a prohibited = personnel=20 practice under section 2302(b)(1) of this title which also falls under = the=20 coverage of the negotiated grievance procedure may raise the matter = under a=20 statutory procedure or the negotiated procedure, but not both. An = employee=20 shall be deemed to have exercised his option under this subsection to = raise=20 the matter under either a statutory procedure or the negotiated = procedure at=20 such time as the employee timely initiates an action under the = applicable=20 statutory procedure or timely files a grievance in writing, in = accordance with=20 the provisions of the parties' negotiated procedure, whichever event = occurs=20 first. Selection of the negotiated procedure in no manner prejudices = the right=20 of an aggrieved employee to request the Merit Systems Protection Board = to=20 review the final decision pursuant to section 7702 of this title in = the case=20 of any personnel action that could have been appealed to the Board, = or, where=20 applicable, to request the Equal Employment Opportunity Commission to = review a=20 final decision in any other matter involving a complaint of = discrimination of=20 the type prohibited by any law administered by the Equal Employment=20 Opportunity Commission.

(e) (1) Matters covered under sections 4303 and 7512 = of this=20 title which also fall within the coverage of the negotiated grievance=20 procedure may, in the discretion of the aggrieved employee, be raised = either=20 under the appellate procedures of section 7701 of this title or under = the=20 negotiated grievance procedure, but not both. Similar matters which = arise=20 under other personnel systems applicable to employees covered by this = chapter=20 may, in the discretion of the aggrieved employee, be raised either = under the=20 appellate procedures, if any, applicable to those matters, or under = the=20 negotiated grievance procedure, but not both. An employee shall be = deemed to=20 have exercised his option under this subsection to raise a matter = either under=20 the applicable appellate procedures or under the negotiated grievance=20 procedure at such time as the employee timely files a notice of appeal = under=20 the applicable appellate procedures or timely files a grievance in = writing in=20 accordance with the provisions of the parties' negotiated grievance = procedure,=20 whichever event occurs first.

(2) In matters covered under sections 4303 and = 7512 of this=20 title which have been raised under the negotiated grievance = procedure in=20 accordance with this section, an arbitrator shall be governed by = section=20 7701(c)(1) of this title, as applicable.

(f) In matters covered under sections 4303 and 7512 = of this=20 title which have been raised under the negotiated grievance procedure = in=20 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=20 and under the same conditions as if the matter had been decided by the = Board.=20 In matters similar to those covered under sections 4303 and 7512 of = this title=20 which arise under other personnel systems and which an aggrieved = employee has=20 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=20 could be obtained of a final decision in such matters raised under = applicable=20 appellate procedures.

(g) (1) This subsection applies with respect to a = prohibited=20 personnel practice other than a prohibited personnel practice to which = subsection (d) applies.

(2) An aggrieved employee affected by a prohibited = personnel=20 practice described in paragraph (1) may elect not more than one of = the=20 remedies described in paragraph (3) with respect thereto. For = purposes of=20 the preceding sentence, a determination as to whether a particular = remedy=20 has been elected shall be made as set forth under paragraph (4).

(3) The remedies described in this paragraph are = as=20 follows:

(A) An appeal to the Merit Systems Protection = Board under=20 section 7701.

(B) A negotiated grievance procedure under = this=20 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=20 considered to have elected -

(A) the remedy described in paragraph (3)(A) if = such=20 person has timely filed a notice of appeal under the applicable = appellate=20 procedures;

(B) the remedy described in paragraph (3)(B) if = such=20 person has timely filed a grievance in writing, in accordance with = the=20 provisions of the parties' negotiated procedure; or

(C) the = remedy=20 described in paragraph (3)(C) if such person has sought corrective = action=20 from the Office of Special Counsel by making an allegation under = section=20 1214(a)(1).

(h) Settlements and awards under this chapter shall = be subject=20 to the limitations in section 5596(b)(4) of this = title.

Source: (Added Pub. L. 95-454, title VII, =A7 701, = Oct. 13, 1978,=20 92 Stat. 1211; amended Pub. L. 103-424, =A7 9, Oct. 29, 1994, 108 Stat. = 4365; Pub.=20 L. 105-261, =A7 1104(b), Oct. 17, 1998, 112 Stat. 2142.)

AMENDMENTS

1998 - Subsec. (h). Pub. L. 105-261, =A7 1104(b), = added subsec.=20 (h).
1994 - Subsec. (a)(1). Pub. L. 103-424, =A7 9(c), substituted = ''(d), (e),=20 and (g)'' for ''(d) and (e)'' and inserted ''administrative'' after=20 ''exclusive''.

Subsec. (b). Pub. L. 103-424, =A7 9(a), designated = existing=20 provisions as par. (1) and redesignated former pars. (1) to (3) as = subpars. (A)=20 to (C), respectively, and subpars. (A) to (C) of former par. (3) as cls. = (i) to=20 (iii) of subpar. (a)(1)(C), respectively, and added par. = (2).

Subsec.=20 (g). Pub. L. 103-424, =A7 9(b), added subsec. (g).

PARTIAL SUSPENSION OF FEDERAL SERVICE=20 LABOR-MANAGEMENT RELATIONS

Subsec. (b)(3)(C) of this section suspended with = respect to any=20 grievance involving the implementation by the United States Forces of = any treaty=20 or agreement, including any minutes or understandings thereto, between = the=20 United States and the Government of the host nation, see section 1(d) of = Ex.=20 Ord. No. 12391, Nov. 4, 1982, 47 F.R. 50457, set out as a note under = section=20 7103 of this title.

SECTION REFERRED TO IN OTHER = SECTIONS

This section is referred to in sections 7116, 7122 of = this=20 title; title 2 section 1351; title 22 section 3701.

=20

5=20 U.S.C. 7521. Actions Against=20 Administrative Law Judges

(a) An action may be taken against an administrative = law judge=20 appointed under section 3105 of this title by the agency in which the=20 administrative law judge is employed only for good cause established = and=20 determined by the Merit Systems Protection Board on the record after=20 opportunity for hearing before the Board.

(b) The actions = covered by=20 this section are -

(1) a removal;

(2) a=20 suspension;

(3) a reduction in grade;

(4) a reduction = in pay;=20 and

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

(A) a suspension or removal under = section 7532=20 of this title;

(B) a reduction-in-force action under = section 3502=20 of this title; or

(C) any action initiated under section = 1215 of=20 this title.

Source: (Added Pub. L. 95-454, title = II, =A7 204(a),=20 Oct. 13, 1978, 92 Stat. 1137; amended Pub. L. 101-12, =A7 9(a)(2), = Apr. 10,=20 1989, 103 Stat. 35.)

PRIOR PROVISIONS

A prior section 7521, Pub. L. 89-554, = Sept. 6,=20 1966, 80 Stat. 528; Pub. L. 95-251, =A7 2(a)(1), Mar. 27, 1978, 92 = Stat. 183,=20 related to removal of an administrative law judge appointed under = section 3105=20 of this title, prior to repeal by Pub. L. 95-454, =A7 = 204(a).

AMENDMENTS

1989 - Subsec. (b)(C). Pub. L. 101-12 = substituted=20 ''1215'' for ''1206''.

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101-12 effective 90 = days=20 following Apr. 10, 1989, see section 11 of Pub. L. 101-12, set out as a = note=20 under section 1201 of this title.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, = 1978, see=20 section 907 of Pub. L. 95-454, set out as an Effective Date of 1978 = Amendment=20 note under section 1101 of this title.

SECTION REFERRED TO IN OTHER = SECTIONS

This section is referred to in sections = 559, 1305,=20 7502, 7512 of this title; title 15 section 1715; title 29 section 661; = title 30=20 section 823; title 38 section 7101A; title 39 section 3601; title 42 = sections=20 2000e-4, 3608.

5=20 U.S.C. =A7 7701. Appellate procedures

(a) = An employee,=20 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=20 law, rule, or regulation. An appellant shall have the right = -

(1) = to a=20 hearing for which a transcript will be kept; and

(2) = to be=20 represented by an attorney or other representative. Appeals shall be = processed in accordance with regulations prescribed by the=20 Board.

(b)(1) The Board=20 may hear any case appealed to it or may refer the case to an = administrative=20 law judge appointed under section 3105 of this title or other employee = of the=20 Board designated by the Board to hear such cases, except that in any = case=20 involving a removal from the service, the case shall be heard by the = Board, an=20 employee experienced in hearing appeals, or an administrative law = judge. The=20 Board, administrative law judge, or other employee (as the case may = be) shall=20 make a decision after receipt of the written representations of the = parties to=20 the appeal and after opportunity for a hearing under subsection (a)(1) = of this=20 section. A copy of the decision shall be furnished to each party to = the appeal=20 and to the Office of Personnel Management.

(2)(A) If an=20 employee or applicant for employment is the prevailing party in an = appeal=20 under this subsection, the employee or applicant shall be granted = the relief=20 provided in the decision effective upon the making of the decision, = and=20 remaining in effect pending the outcome of any petition for review = under=20 subsection (e), unless -

(i) the=20 deciding official determines that the granting of such relief is = not=20 appropriate; or

(ii)

(I) the=20 relief granted in the decision provides that such employee or=20 applicant shall return or be present at the place of = employment during=20 the period pending the outcome of any petition for review = under=20 subsection (e); and

(II) the=20 employing agency, subject to the provisions of subparagraph = (B),=20 determines that the return or presence of such employee or = applicant=20 is unduly disruptive to the work environment.=20

(B) If an=20 agency makes a determination under subparagraph (A)(ii)(II) that = prevents=20 the return or presence of an employee at the place of employment, = such=20 employee shall receive pay, compensation, and all other benefits = as terms=20 and conditions of employment during the period pending the outcome = of any=20 petition for review under subsection (e).

(C) Nothing=20 in the provisions of this paragraph may be construed to require = any award=20 of back pay or attorney fees be paid before the decision is = final.=20

(3) = With=20 respect to an appeal from an adverse action covered by subchapter V = of=20 chapter 75, authority to mitigate the personnel action involved = shall be=20 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=20 which mitigation authority under this section exists. =

(c)(1) Subject to=20 paragraph (2) of this subsection, the decision of the agency shall be=20 sustained under subsection (b) only if the agency's decision - =

(A) in the=20 case of an action based on unacceptable performance described in = section=20 4303 or a removal from the Senior Executive Service for failure to = be=20 recertified under section 3393a, is supported by substantial = evidence;=20 or

(B) in any=20 other case, is supported by a preponderance of the = evidence.=20

(2) = Notwithstanding paragraph (1), the agency's decision may not be = sustained=20 under subsection (b) of this section if the employee or applicant = for=20 employment -

(A) shows=20 harmful error in the application of the agency's procedures in = arriving at=20 such decision;

(B) shows=20 that the decision was based on any prohibited personnel practice = described=20 in section 2302(b) of this title; or

(C) shows=20 that the decision was not in accordance with law.=20

(d)(1) In any=20 case in which -

(A) the=20 interpretation or application of any civil service law, rule, or=20 regulation, under the jurisdiction of the Office of Personnel = Management=20 is at issue in any proceeding under this section; and

(B) the=20 Director of the Office of Personnel Management is of the opinion = that an=20 erroneous decision would have a substantial impact on any civil = service=20 law, rule, or regulation under the jurisdiction of the Office; the = Director may as a matter of right intervene or otherwise = participate in=20 that proceeding before the Board. If the Director exercises his = right to=20 participate in a proceeding before the Board, he shall do so as = early in=20 the proceeding as practicable. Nothing in this title shall be = construed to=20 permit the Office to interfere with the independent decisionmaking = of the=20 Merit Systems Protection Board.

(2) = The Board=20 shall promptly notify the Director whenever the interpretation of = any civil=20 service law, rule, or regulation under the jurisdiction of the = Office is at=20 issue in any proceeding under this section.

(e)(1) Except as=20 provided in section 7702 of this title, any decision under subsection = (b) of=20 this section shall be final unless -

(A) a party=20 to the appeal or the Director petitions the Board for review = within 30=20 days after the receipt of the decision; or

(B) the Board=20 reopens and reconsiders a case on its own motion. The Board, for = good=20 cause shown, may extend the 30-day period referred to in = subparagraph (A)=20 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=20 preceding sentence shall not apply if, by law, a decision of an=20 administrative law judge is required to be acted upon by the = Board.=20

(2) = The=20 Director may petition the Board for a review under paragraph (1) of = this=20 subsection only if the Director is of the opinion that the decision = is=20 erroneous and will have a substantial impact on any civil service = law, rule,=20 or regulation under the jurisdiction of the Office. =

(f) = The Board, or=20 an administrative law judge or other employee of the Board designated = to hear=20 a case, may -

(1) = consolidate=20 appeals filed by two or more appellants, or

(2) = join two or=20 more appeals filed by the same appellant and hear and decide them=20 concurrently, if the deciding official or officials hearing the = cases are of=20 the opinion that the action could result in the appeals' being = processed=20 more expeditiously and would not adversely affect any party.=20

(g)(1) Except as=20 provided in paragraph (2) of this subsection, the Board, or an = administrative=20 law judge or other employee of the Board designated to hear a case, = may=20 require payment by the agency involved of reasonable attorney fees = incurred by=20 an employee or applicant for employment if the employee or applicant = is the=20 prevailing party and the Board, administrative law judge, or other = employee=20 (as the case may be) determines that payment by the agency is = warranted in the=20 interest of justice, including any case in which a prohibited = personnel=20 practice was engaged in by the agency or any case in which the = agency's action=20 was clearly without merit.

(2) = If an=20 employee or applicant for employment is the prevailing party and the = decision is based on a finding of discrimination prohibited under = section=20 2302(b)(1) of this title, the payment of attorney fees shall be in=20 accordance with the standards prescribed under section 706(k) of the = Civil=20 Rights Act of 1964 (42 U.S.C. 2000e-5(k)).

(h) = The Board=20 may, by regulation, provide for one or more alternative methods for = settling=20 matters subject to the appellate jurisdiction of the Board which shall = be=20 applicable at the election of an applicant for employment or of an = employee=20 who is not in a unit for which a labor organization is accorded = exclusive=20 recognition, and shall be in lieu of other procedures provided for = under this=20 section. A decision under such a method shall be final, unless the = Board=20 reopens and reconsiders a case at the request of the Office of = Personnel=20 Management under subsection (e) of this section.

(i)(1) Upon the=20 submission of any appeal to the Board under this section, the Board, = through=20 reference to such categories of cases, or other means, as it = determines=20 appropriate, shall establish and announce publicly the date by which = it=20 intends to complete action on the matter. Such date shall assure = expeditious=20 consideration of the appeal, consistent with the interests of fairness = and=20 other priorities of the Board. If the Board fails to complete action = on the=20 appeal by the announced date, and the expected delay will exceed 30 = days, the=20 Board shall publicly announce the new date by which it intends to = complete=20 action on the appeal.

(2) = Not later=20 than March 1 of each year, the Board shall submit to the Congress a = report=20 describing the number of appeals submitted to it during the = preceding fiscal=20 year, the number of appeals on which it completed action during that = year,=20 and the number of instances during that year in which it failed to = conclude=20 a proceeding by the date originally announced, together with an = explanation=20 of the reasons therefor.

(3) = The Board=20 shall by rule indicate any other category of significant Board = action which=20 the Board determines should be subject to the provisions of this=20 subsection.

(4) = It shall be=20 the duty of the Board, an administrative law judge, or employee = designated=20 by the Board to hear any proceeding under this section to expedite = to the=20 extent practicable that proceeding.

(j) = In=20 determining the appealability under this section of any case involving = a=20 removal from the service (other than the removal of a reemployed = annuitant),=20 neither an individual's status under any retirement system established = by or=20 under Federal statute nor any election made by such individual under = any such=20 system may be taken into account.

(k) = The Board may=20 prescribe regulations to carry out the purpose of this section. =

Source: = (Pub. L.=20 89-554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 95-454, title II, =A7 205, = Oct. 13,=20 1978, 92 Stat. 1138; Pub. L. 96-54, =A7 2(a)(45), Aug. 14, 1979, 93 = Stat. 384;=20 Pub. L. 99-386, title II, =A7 208, Aug. 22, 1986, 100 Stat. 824; Pub. L. = 101-12, =A7=20 6, Apr. 10, 1989, 103 Stat. 33; Pub. L. 101-194, title V, =A7 506(b)(6), = Nov. 30,=20 1989, 103 Stat. 1758; Pub. L. 101-280, =A7 6(d)(2), May 4, 1990, 104 = Stat. 160;=20 Pub. L. 101-376, =A7 3, Aug. 17, 1990, 104 Stat. 462; Pub. L. 102-175, = =A7 5, Dec.=20 2, 1991, 105 Stat. 1223; Pub. L. 102-378, =A7 2(56), Oct. 2, 1992, 106 = Stat.=20 1354.)=20

5 U.S.C. =A7 7702. Actions involving = discrimination=20

(a)(1)=20 Notwithstanding any other provision of law, and except as provided in=20 paragraph (2) of this subsection, in the case of any employee or = applicant for=20 employment who -

(A) has been=20 affected by an action which the employee or applicant may appeal = to the=20 Merit Systems Protection Board, and

(B) alleges=20 that a basis for the action was discrimination prohibited by = -

(i) section=20 717 of the Civil Rights Act of 1964 (42 U.S.C. = 2000e-16),

(ii)=20 section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C.=20 206(d)),

(iii)=20 section 501 of the Rehabilitation Act of 1973 (29 U.S.C. = 791),=20

(iv)=20 sections 12 and 15 of the Age Discrimination in Employment Act = of 1967=20 (29 U.S.C. 631, 633a), or

(v) any=20 rule, regulation, or policy directive prescribed under any = provision of=20 law described in clauses (i) through (iv) of this subparagraph, = the=20 Board shall, within 120 days of the filing of the appeal, decide = both=20 the issue of discrimination and the appealable action in = accordance with=20 the Board's appellate procedures under section 7701 of this = title and=20 this section.

(2) = In any=20 matter before an agency which involves -

(A) any=20 action described in paragraph (1)(A) of this subsection; = and

(B) any issue=20 of discrimination prohibited under any provision of law described = in=20 paragraph (1)(B) of this subsection; the agency shall resolve such = matter=20 within 120 days. The decision of the agency in any such matter = shall be a=20 judicially reviewable action unless the employee appeals the = matter to the=20 Board under paragraph (1) of this subsection. =

(3) = Any=20 decision of the Board under paragraph (1) of this subsection shall = be a=20 judicially reviewable action as of -

(A) the date=20 of issuance of the decision if the employee or applicant does not = file a=20 petition with the Equal Employment Opportunity Commission under = subsection=20 (b)(1) of this section, or

(B) the date=20 the Commission determines not to consider the decision under = subsection=20 (b)(2) of this section.

(b)(1) An=20 employee or applicant may, within 30 days after notice of the decision = of the=20 Board under subsection (a)(1) of this section, petition the Commission = to=20 consider the decision.

(2) = The=20 Commission shall, within 30 days after the date of the petition, = determine=20 whether to consider the decision. A determination of the Commission = not to=20 consider the decision may not be used as evidence with respect to = any issue=20 of discrimination in any judicial proceeding concerning that = issue.=20

(3) = If the=20 Commission makes a determination to consider the decision, the = Commission=20 shall, within 60 days after the date of the determination, consider = the=20 entire record of the proceedings of the Board and, on the basis of = the=20 evidentiary record before the Board, as supplemented under paragraph = (4) of=20 this subsection, either -

(A) concur in=20 the decision of the Board; or

(B) issue in=20 writing another decision which differs from the decision of the = Board to=20 the extent that the Commission finds that, as a matter of law = -=20

(i) the=20 decision of the Board constitutes an incorrect interpretation of = any=20 provision of any law, rule, regulation, or policy directive = referred to=20 in subsection (a)(1)(B) of this section, or

(ii) the=20 decision involving such provision is not supported by the = evidence in=20 the record as a whole.

(4) = In=20 considering any decision of the Board under this subsection, the = Commission=20 may refer the case to the Board, or provide on its own, for the = taking=20 (within such period as permits the Commission to make a decision = within the=20 60-day period prescribed under this subsection) of additional = evidence to=20 the extent it considers necessary to supplement the record. =

(5)(A) If the=20 Commission concurs pursuant to paragraph (3)(A) of this subsection = in the=20 decision of the Board, the decision of the Board shall be a = judicially=20 reviewable action.

(B)=20 If the Commission issues any decision under paragraph (3)(B) of = this=20 subsection, the Commission shall immediately refer the matter to = the=20 Board.

(c) = Within 30=20 days after receipt by the Board of the decision of the Commission = under=20 subsection (b)(5)(B) of this section, the Board shall consider the = decision=20 and -

(1) = concur and=20 adopt in whole the decision of the Commission; or

(2) = to the=20 extent that the Board finds that, as a matter of law,

(A) the=20 Commission decision constitutes an incorrect interpretation of any = provision of any civil service law, rule, regulation or policy = directive,=20 or

(B) the=20 Commission decision involving such provision is not supported by = the=20 evidence in the record as a whole -

(i)=20 reaffirm the initial decision of the Board; or

(ii)=20 reaffirm the initial decision of the Board with such revisions = as it=20 determines appropriate. If the Board takes the action provided = under=20 paragraph (1), the decision of the Board shall be a judicially=20 reviewable action. =

(d)(1) If the=20 Board takes any action under subsection (c)(2) of this section, the = matter=20 shall be immediately certified to a special panel described in = paragraph (6)=20 of this subsection. Upon certification, the Board shall, within 5 days = (excluding Saturdays, Sundays, and holidays), transmit to the special = panel=20 the administrative record in the proceeding, including -

(A) the=20 factual record compiled under this section,

(B) the=20 decisions issued by the Board and the Commission under this = section,=20 and

(C) any=20 transcript of oral arguments made, or legal briefs filed, before = the Board=20 or the Commission.

(2)(A) The=20 special panel shall, within 45 days after a matter has been = certified to it,=20 review the administrative record transmitted to it and, on the basis = of the=20 record, decide the issues in dispute and issue a final decision = which shall=20 be a judicially reviewable action.

(B) The=20 special panel shall give due deference to the respective expertise = of the=20 Board and Commission in making its decision. =

(3) = The special=20 panel shall refer its decision under paragraph (2) of this = subsection to the=20 Board and the Board shall order any agency to take any action = appropriate to=20 carry out the decision.

(4) = The special=20 panel shall permit the employee or applicant who brought the = complaint and=20 the employing agency to appear before the panel to present oral = arguments=20 and to present written arguments with respect to the matter. =

(5) = Upon=20 application by the employee or applicant, the Commission may issue = such=20 interim relief as it determines appropriate to mitigate any = exceptional=20 hardship the employee or applicant might otherwise incur as a result = of the=20 certification of any matter under this subsection, except that the=20 Commission may not stay, or order any agency to review on an interim = basis,=20 the action referred to in subsection (a)(1) of this section. =

(6)(A) Each=20 time the Board takes any action under subsection (c)(2) of this = section, a=20 special panel shall be convened which shall consist of -

(i) an=20 individual appointed by the President, by and with the advice = and=20 consent of the Senate, to serve for a term of 6 years as = chairman of the=20 special panel each time it is convened;

(ii) one=20 member of the Board designated by the Chairman of the Board each = time a=20 panel is convened; and

(iii) one=20 member of the Commission designated by the Chairman of the = Commission=20 each time a panel is convened. The chairman of the special panel = may be=20 removed by the President only for inefficiency, neglect of duty, = or=20 malfeasance in office.

(B) The=20 chairman is entitled to pay at a rate equal to the maximum annual = rate of=20 basic pay payable under the General Schedule for each day he is = engaged in=20 the performance of official business on the work of the special=20 panel.

(C) The Board=20 and the Commission shall provide such administrative assistance to = the=20 special panel as may be necessary and, to the extent practicable, = shall=20 equally divide the costs of providing the administrative=20 assistance.

(e)(1)=20 Notwithstanding any other provision of law, if at any time after = -

(A) the 120th=20 day following the filing of any matter described in subsection = (a)(2) of=20 this section with an agency, there is not judicially reviewable = action=20 under this section or an appeal under paragraph (2) of this=20 subsection;

(B) the 120th=20 day following the filing of an appeal with the Board under = subsection=20 (a)(1) of this section, there is no judicially reviewable action = (unless=20 such action is not as the result of the filing of a petition by = the=20 employee under subsection (b)(1) of this section); or

(C) the 180th=20 day following the filing of a petition with the Equal Employment=20 Opportunity Commission under subsection (b)(1) of this section, = there is=20 no final agency action under subsection (b), (c), or (d) of this = section;=20 an employee shall be entitled to file a civil action to the same = extent=20 and in the same manner as provided in section 717(c) of the Civil = Rights=20 Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age=20 Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or = section=20 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. = 216(b)).=20

(2) = If, at any=20 time after the 120th day following the filing of any matter = described in=20 subsection (a)(2) of this section with an agency, there is no = judicially=20 reviewable action, the employee may appeal the matter to the Board = under=20 subsection (a)(1) of this section.

(3) = Nothing in=20 this section shall be construed to affect the right to trial de novo = under=20 any provision of law described in subsection (a)(1) of this section = after a=20 judicially reviewable action, including the decision of an agency = under=20 subsection (a)(2) of this section.

(f) = In any case=20 in which an employee is required to file any action, appeal, or = petition under=20 this section and the employee timely files the action, appeal, or = petition=20 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=20 the action, appeal, or petition as of the date it is filed with the = proper=20 agency.

Source: = (Added Pub.=20 L. 95-454, title II, =A7 205, Oct. 13, 1978, 92 Stat. 1140; amended Pub. = L. 96-54,=20 =A7 2(a)(46), Aug. 14, 1979, 93 Stat. 384.)=20

5 U.S.C. =A7 7703. Judicial review of decisions of the = Merit=20 Systems Protection Board=20

(a)(1) Any=20 employee or applicant for employment adversely affected or aggrieved = by a=20 final order or decision of the Merit Systems Protection Board may = obtain=20 judicial review of the order or decision.

(2) = The Board=20 shall be named respondent in any proceeding brought pursuant to this = subsection, unless the employee or applicant for employment seeks = review of=20 a final order or decision on the merits on the underlying personnel = action=20 or on a request for attorney fees, in which case the agency = responsible for=20 taking the personnel action shall be the = respondent.

(b)(1) Except as=20 provided in paragraph (2) of this subsection, a petition to review a = final=20 order or final decision of the Board shall be filed in the United = States Court=20 of Appeals for the Federal Circuit. Notwithstanding any other = provision of=20 law, any petition for review must be filed within 60 days after the = date the=20 petitioner received notice of the final order or decision of the=20 Board.

(2) = Cases of=20 discrimination subject to the provisions of section 7702 of this = title shall=20 be filed under section 717(c) of the Civil Rights Act of 1964 (42 = U.S.C.=20 2000e-16(c)), section 15(c) of the Age Discrimination in Employment = Act of=20 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor = Standards Act=20 of 1938, as amended (29 U.S.C. 216(b)), as applicable. = Notwithstanding any=20 other provision of law, any such case filed under any such section = must be=20 filed within 30 days after the date the individual filing the case = received=20 notice of the judicially reviewable action under such section=20 7702.

(c) = In any case=20 filed in the United States Court of Appeals for the Federal Circuit, = the court=20 shall review the record and hold unlawful and set aside any agency = action,=20 findings, or conclusions found to be -

(1) = arbitrary,=20 capricious, an abuse of discretion, or otherwise not in accordance = with=20 law;

(2) = obtained=20 without procedures required by law, rule, or regulation having been=20 followed; or

(3) = unsupported=20 by substantial evidence; except that in the case of discrimination = brought=20 under any section referred to in subsection (b)(2) of this section, = the=20 employee or applicant shall have the right to have the facts subject = to=20 trial de novo by the reviewing court.

(d) = The Director=20 of the Office of Personnel Management may obtain review of any final = order or=20 decision of the Board by filing, within 60 days after the date the = Director=20 received notice of the final order or decision of the Board, a = petition for=20 judicial review in the United States Court of Appeals for the Federal = Circuit=20 if the Director determines, in his discretion, that the Board erred in = interpreting a civil service law, rule, or regulation affecting = personnel=20 management and that the Board's decision will have a substantial = impact on a=20 civil service law, rule, regulation, or policy directive. If the = Director did=20 not intervene in a matter before the Board, the Director may not = petition for=20 review of a Board decision under this section unless the Director = first=20 petitions the Board for a reconsideration of its decision, and such = petition=20 is denied. In addition to the named respondent, the Board and all = other=20 parties to the proceedings before the Board shall have the right to = appear in=20 the proceeding before the Court of Appeals. The granting of the = petition for=20 judicial review shall be at the discretion of the Court of = Appeals.=20

Source: = (Added Pub.=20 L. 95-454, title II, =A7 205, Oct. 13, 1978, 92 Stat. 1143; amended Pub. = L.=20 97-164, title I, =A7 144, Apr. 2, 1982, 96 Stat. 45; Pub. L. 101-12, =A7 = 10, Apr.=20 10, 1989, 103 Stat. 35; Pub. L. 105-311 , =A7 10(a), Oct. 30, 1998, 112 = Stat.=20 2954.)=20

5 U.S.C. =A7 1221. Individual right of action in = certain reprisal=20 cases=20

(a) = Subject to=20 the provisions of subsection (b) of this section and subsection = 1214(a)(3), an=20 employee, former employee, or applicant for employment may, with = respect to=20 any personnel action taken, or proposed to be taken, against such = employee,=20 former employee, or applicant for employment, as a result of a = prohibited=20 personnel practice described in section 2302(b)(8), seek corrective = action=20 from the Merit Systems Protection Board.

(b) = This section=20 may not be construed to prohibit any employee, former employee, or = applicant=20 for employment from seeking corrective action from the Merit Systems=20 Protection Board before seeking corrective action from the Special = Counsel, if=20 such employee, former employee, or applicant for employment has the = right to=20 appeal directly to the Board under any law, rule, or = regulation.

(c)(1) Any=20 employee, former employee, or applicant for employment seeking = corrective=20 action under subsection (a) may request that the Board order a stay of = the=20 personnel action involved.

(2) = Any stay=20 requested under paragraph (1) shall be granted within 10 calendar = days=20 (excluding Saturdays, Sundays, and legal holidays) after the date = the=20 request is made, if the Board determines that such a stay would be=20 appropriate.

(3)(A) The=20 Board shall allow any agency which would be subject to a stay under = this=20 subsection to comment to the Board on such stay request.

(B) Except as=20 provided in subparagraph (C), a stay granted under this subsection = shall=20 remain in effect for such period as the Board determines to be=20 appropriate.

(C) The Board=20 may modify or dissolve a stay under this subsection at any time, = if the=20 Board determines that such a modification or dissolution is=20 appropriate.

(d)(1) At the=20 request of an employee, former employee, or applicant for employment = seeking=20 corrective action under subsection (a), the Board shall issue a = subpoena for=20 the attendance and testimony of any person or the production of = documentary or=20 other evidence from any person if the Board finds that the testimony = or=20 production requested is not unduly burdensome and appears reasonably=20 calculated to lead to the discovery of admissible evidence. =

(2) = A subpoena=20 under this subsection may be issued, and shall be enforced, in the = same=20 manner as applies in the case of subpoenas under section = 1204.=20

(e)(1) Subject to=20 the provisions of paragraph (2), in any case involving an alleged = prohibited=20 personnel practice as described under section 2302(b)(8), the Board = shall=20 order such corrective action as the Board considers appropriate if the = employee, former employee, or applicant for employment has = demonstrated that a=20 disclosure described under section 2302(b)(8) was a contributing = factor in the=20 personnel action which was taken or is to be taken against such = employee,=20 former employee, or applicant. The employee may demonstrate that the=20 disclosure was a contributing factor in the personnel action through=20 circumstantial evidence, such as evidence that -

(A) the=20 official taking the personnel action knew of the disclosure; = and=20

(B) the=20 personnel action occurred within a period of time such that a = reasonable=20 person could conclude that the disclosure was a contributing = factor in the=20 personnel action.

(2) = Corrective=20 action under paragraph (1) may not be ordered if the agency = demonstrates by=20 clear and convincing evidence that it would have taken the same = personnel=20 action in the absence of such disclosure.

(f)(1) A final=20 order or decision shall be rendered by the Board as soon as = practicable after=20 the commencement of any proceeding under this section.

(2) = A decision=20 to terminate an investigation under subchapter II may not be = considered in=20 any action or other proceeding under this section.

(3) = If, based=20 on evidence presented to it under this section, the Merit Systems = Protection=20 Board determines that there is reason to believe that a current = employee may=20 have committed a prohibited personnel practice, the Board shall = refer the=20 matter to the Special Counsel to investigate and take appropriate = action=20 under section 1215.

(g)(1)(A) If the=20 Board orders corrective action under this section, such corrective = action may=20 include -

(i) that=20 the individual be placed, as nearly as possible, in the position = the=20 individual would have been in had the prohibited personnel = practice not=20 occurred; and

(ii) back=20 pay and related benefits, medical costs incurred, travel = expenses, and=20 any other reasonable and foreseeable consequential = changes.=20

(B)=20 Corrective action shall include attorney's fees and costs as = provided for=20 under paragraphs (2) and (3).

(2) = If an=20 employee, former employee, or applicant for employment is the = prevailing=20 party before the Merit Systems Protection Board, and the decision is = based=20 on a finding of a prohibited personnel practice, the agency involved = shall=20 be liable to the employee, former employee, or applicant for = reasonable=20 attorney's fees and any other reasonable costs incurred.

(3) = If an=20 employee, former emloyee,¹ = or=20 applicant for employment is the prevailing party in an appeal from = the Merit=20 Systems Protection Board, the agency involved shall be liable to the = employee, former employee, or applicant for reasonable attorney's = fees and=20 any other reasonable costs incurred, regardless of the basis of the=20 decision. [Footnote 1: So in original. = Probably should=20 be ''employee,''.]

(h)(1) An=20 employee, former employee, or applicant for employment adversely = affected or=20 aggrieved by a final order or decision of the Board under this section = may=20 obtain judicial review of the order or decision.

(2) = A petition=20 for review under this subsection shall be filed with such court, and = within=20 such time, as provided for under section 7703(b). =

(i) = Subsections=20 (a) through (h) shall apply in any proceeding brought under section = 7513(d)=20 if, or to the extent that, a prohibited personnel practice as defined = in=20 section 2302(b)(8) is alleged.

(j) = In=20 determining the appealability of any case involving an allegation made = by an=20 individual under the provisions of this chapter, neither the status of = an=20 individual under any retirement system established under a Federal = statute nor=20 any election made by such individual under any such system may be = taken into=20 account.

Source: = (Added Pub.=20 L. 101-12, =A7 3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. = 103-424, =A7=20 4, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365.)=20

5 U.S.C. =A7 3330a. Preference eligibles; = administrative=20 redress

(a)(1) A=20 preference eligible who alleges that an agency has violated such = individual's=20 rights under any statute or regulation relating to veterans' = preference may=20 file a complaint with the Secretary of Labor.

(2)(A) A=20 complaint under this subsection must be filed within 60 days after = the date=20 of the alleged violation.

(B) Such=20 complaint shall be in writing, be in such form as the Secretary = may=20 prescribe, specify the agency against which the complaint is = filed, and=20 contain a summary of the allegations that form the basis for the=20 complaint.

(3) = The=20 Secretary shall, upon request, provide technical assistance to a = potential=20 complainant with respect to a complaint under this=20 subsection.

(b)(1) The=20 Secretary of Labor shall investigate each complaint under subsection=20 (a).

(2) = In carrying=20 out any investigation under this subsection, the Secretary's duly = authorized=20 representatives shall, at all reasonable times, have reasonable = access to,=20 for purposes of examination, and the right to copy and receive, any=20 documents of any person or agency that the Secretary considers = relevant to=20 the investigation.

(3) = In carrying=20 out any investigation under this subsection, the Secretary may = require by=20 subpoena the attendance and testimony of witnesses and the = production of=20 documents relating to any matter under investigation. In case of=20 disobedience of the subpoena or contumacy and on request of the = Secretary,=20 the Attorney General may apply to any district court of the United = States in=20 whose jurisdiction such disobedience or contumacy occurs for an = order=20 enforcing the subpoena.

(4) = Upon=20 application, the district courts of the United States shall have=20 jurisdiction to issue writs commanding any person or agency to = comply with=20 the subpoena of the Secretary or to comply with any order of the = Secretary=20 made pursuant to a lawful investigation under this subsection and = the=20 district courts shall have jurisdiction to punish failure to obey a = subpoena=20 or other lawful order of the Secretary as a contempt of = court.=20

(c)(1)(A) If the=20 Secretary of Labor determines as a result of an investigation under = subsection=20 (b) that the action alleged in a complaint under subsection (a) = occurred, the=20 Secretary shall attempt to resolve the complaint by making reasonable = efforts=20 to ensure that the agency specified in the complaint complies with = applicable=20 provisions of statute or regulation relating to veterans' = preference.=20

(B) The=20 Secretary of Labor shall make determinations referred to in = subparagraph=20 (A) based on a preponderance of the evidence. =

(2) = If the=20 efforts of the Secretary under subsection (b) with respect to a = complaint=20 under subsection (a) do not result in the resolution of the = complaint, the=20 Secretary shall notify the person who submitted the complaint, in = writing,=20 of the results of the Secretary's investigation under subsection = (b).=20

(d)(1) If the=20 Secretary of Labor is unable to resolve a complaint under subsection = (a)=20 within 60 days after the date on which it is filed, the complainant = may elect=20 to appeal the alleged violation to the Merit Systems Protection Board = in=20 accordance with such procedures as the Merit Systems Protection Board = shall=20 prescribe, except that in no event may any such appeal be = brought

(A) before=20 the 61st day after the date on which the complaint is filed; = or=20

(B) later=20 than 15 days after the date on which the complainant receives = written=20 notification from the Secretary under subsection (c)(2).=20

(2) = An appeal=20 under this subsection may not be brought unless -

(A) the=20 complainant first provides written notification to the Secretary = of such=20 complainant's intention to bring such appeal; and

(B)=20 appropriate evidence of compliance with subparagraph (A) is = included (in=20 such form and manner as the Merit Systems Protection Board may = prescribe)=20 with the notice of appeal under this subsection. =

(3) = Upon=20 receiving notification under paragraph (2)(A), the Secretary shall = not=20 continue to investigate or further attempt to resolve the complaint = to which=20 the notification relates.

(e)(1) This=20 section shall not be construed to prohibit a preference eligible from=20 appealing directly to the Merit Systems Protection Board from any = action which=20 is appealable to the Board under any other law, rule, or regulation, = in lieu=20 of administrative redress under this section.

(2) = A=20 preference eligible may not pursue redress for an alleged violation=20 described in subsection (a) under this section at the same time the=20 preference eligible pursues redress for such violation under any = other law,=20 rule, or regulation.

Source: = (Pub. L.=20 105-339, =A7 3a, Oct. 31, 1998, 112 Stat. 3182.)=20

5 U.S.C. =A7 3330b. Preference eligibles; judicial=20 redress

(a) = In lieu of=20 continuing the administrative redress procedure provided under section = 3330a(d), a preference eligible may elect, in accordance with this = section, to=20 terminate those administrative proceedings and file an action with the = appropriate United States district court not later than 60 days after = the date=20 of the election.

(b) = An election=20 under this section may not be made -

(1) = before the=20 121st day after the date on which the appeal is filed with the Merit = Systems=20 Protection Board under section 3330a(d); or

(2) = after the=20 Merit Systems Protection Board has issued a judicially reviewable = decision=20 on the merits of the appeal.

(c) = An election=20 under this section shall be made, in writing, in such form and manner = as the=20 Merit Systems Protection Board shall by regulation prescribe. The = election=20 shall be effective as of the date on which it is received, and the=20 administrative proceeding to which it relates shall terminate = immediately upon=20 the receipt of such election.

Source: = (Pub. L.=20 105-339, =A7 3(a), Oct. 31, 1998, 112 Stat. 3184.)=20

5 U.S.C. =A7 3330c. Preference eligibles; = remedy=20

(a) = If the Merit=20 Systems Protection Board (in a proceeding under section 3330a) or a = court (in=20 a proceeding under section 3330b) determines that an agency has = violated a=20 right described in section 3330a, the Board or court (as the case may = be)=20 shall order the agency to comply with such provisions and award = compensation=20 for any loss of wages or benefits suffered by the individual by reason = of the=20 violation involved. If the Board or court determines that such = violation was=20 willful, it shall award an amount equal to backpay as liquidated=20 damages.

(b) A = preference=20 eligible who prevails in an action under section 3330a or 3330b shall = be=20 awarded reasonable attorney fees, expert witness fees, and other = litigation=20 expenses".

Source: = (Pub. L.=20 105-339, =A7 3(a), Oct. 31, 1998, 112 Stat. 3184.)

38 U.S.C. =A7 4322. = Enforcement of=20 employment or reemployment rights =

(a) A = person who=20 claims that -

(1) = such person=20 is entitled under this chapter to employment or reemployment rights = or=20 benefits with respect to employment by an employer; and

(2)(A) such=20 employer has failed or refused, or is about to fail or refuse, to = comply=20 with the provisions of this chapter; or

(B) in the=20 case that the employer is a Federal executive agency, such = employer or the=20 Office of Personnel Management has failed or refused, or is about = to fail=20 or refuse, to comply with the provisions of this chapter, may file = a=20 complaint with the Secretary in accordance with subsection (b), = and the=20 Secretary shall investigate such complaint.=20

(b) = Such=20 complaint shall be in writing, be in such form as the Secretary may = prescribe,=20 include the name and address of the employer against whom the = complaint is=20 filed, and contain a summary of the allegations that form the basis = for the=20 complaint.

(c) = The Secretary=20 shall, upon request, provide technical assistance to a potential = claimant with=20 respect to a complaint under this subsection, and when appropriate, to = such=20 claimant's employer.

(d) = The Secretary=20 shall investigate each complaint submitted pursuant to subsection (a). = If the=20 Secretary determines as a result of the investigation that the action = alleged=20 in such complaint occurred, the Secretary shall attempt to resolve the = complaint by making reasonable efforts to ensure that the person or = entity=20 named in the complaint complies with the provisions of this = chapter.=20

(e) = If the=20 efforts of the Secretary with respect to any complaint filed under = subsection=20 (a) do not resolve the complaint, the Secretary shall notify the = person who=20 submitted the complaint of -

(1) = the results=20 of the Secretary's investigation; and

(2) = the=20 complainant's entitlement to proceed under the enforcement of rights = provisions provided under section 4323 (in the case of a person = submitting a=20 complaint against a State or private employer) or section 4324 (in = the case=20 of a person submitting a complaint against a Federal executive = agency or the=20 Office of Personnel Management).

(f) = This=20 subchapter does not apply to any action relating to benefits to be = provided=20 under the Thrift Savings Plan under title 5.

Source: = (Added Pub.=20 L. 103-353, =A7 2(a), Oct. 13, 1994, 108 Stat. 3164; amended Pub. L. = 104-275,=20 title III, =A7 311(9), Oct. 9, 1996, 110 Stat. 3335.)=20

38 U.S.C. =A7 4324. = Enforcement of rights=20 with respect to Federal executive agencies

(a)(1) A person=20 who receives from the Secretary a notification pursuant to section = 4322(e) may=20 request that the Secretary refer the complaint for litigation before = the Merit=20 Systems Protection Board. The Secretary shall refer the complaint to = the=20 Office of Special Counsel established by section 1211 of title = 5.

(2)(A) If the=20 Special Counsel is reasonably satisfied that the person on whose = behalf a=20 complaint is referred under paragraph (1) is entitled to the rights = or=20 benefits sought, the Special Counsel (upon the request of the person = submitting the complaint) may appear on behalf of, and act as = attorney for,=20 the person and initiate an action regarding such complaint before = the Merit=20 Systems Protection Board.

(B) If the=20 Special Counsel declines to initiate an action and represent a = person=20 before the Merit Systems Protection Board under subparagraph (A), = the=20 Special Counsel shall notify such person of that decision.(b) A = person may=20 submit a complaint against a Federal executive agency or the = Office of=20 Personnel Management under this subchapter directly to the Merit = Systems=20 Protection Board if that person -(1) has chosen not to apply to = the=20 Secretary for assistance under section = 4322(a);

(2) = has=20 received a notification from the Secretary under section = 4322(e);=20

(3) = has chosen=20 not to be represented before the Board by the Special Counsel = pursuant to=20 subsection (a)(2)(A); or

(4) = has=20 received a notification of a decision from the Special Counsel under = subsection (a)(2)(B).

(c)(1) The Merit=20 Systems Protection Board shall adjudicate any complaint brought before = the=20 Board pursuant to subsection (a)(2)(A) or (b), without regard as to = whether=20 the complaint accrued before, on, or after October 13, 1994. A person = who=20 seeks a hearing or adjudication by submitting such a complaint under = this=20 paragraph may be represented at such hearing or adjudication in = accordance=20 with the rules of the Board.

(2) = If the=20 Board determines that a Federal executive agency or the Office of = Personnel=20 Management has not complied with the provisions of this chapter = relating to=20 the employment or reemployment of a person by the agency, the Board = shall=20 enter an order requiring the agency or Office to comply with such = provisions=20 and to compensate such person for any loss of wages or benefits = suffered by=20 such person by reason of such lack of compliance.

(3) = Any=20 compensation received by a person pursuant to an order under = paragraph (2)=20 shall be in addition to any other right or benefit provided for by = this=20 chapter and shall not diminish any such right or benefit. =

(4) = If the=20 Board determines as a result of a hearing or adjudication conducted = pursuant=20 to a complaint submitted by a person directly to the Board pursuant = to=20 subsection (b) that such person is entitled to an order referred to = in=20 paragraph (2), the Board may, in its discretion, award such person=20 reasonable attorney fees, expert witness fees, and other litigation=20 expenses.

(d)(1) A person=20 adversely affected or aggrieved by a final order or decision of the = Merit=20 Systems Protection Board under subsection (c) may petition the United = States=20 Court of Appeals for the Federal Circuit to review the final order or=20 decision. Such petition and review shall be in accordance with the = procedures=20 set forth in section 7703 of title 5.

(2) = Such person=20 may be represented in the Federal Circuit proceeding by the Special = Counsel=20 unless the person was not represented by the Special Counsel before = the=20 Merit Systems Protection Board regarding such order or = decision.=20

Source: = (Added Pub.=20 L. 103-353, =A7 2(a), Oct. 13, 1994, 108 Stat. 3166; amended Pub. L. = 104-275,=20 title III, =A7 311(11), Oct. 9, 1996, 110 Stat. 3336; Pub. L. 105 368, = =A7 213(a),=20 Nov. 11, 1998, 112 Stat. 3331.)
= =20

=A7 1981a. Damages in cases of intentional = discrimination in employment

(a) Right of recovery

(1) Civil = rights. In an=20 action brought by a complaining party under section 706 or 717 of = the Civil=20 Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-16) against a = respondent who=20 engaged in unlawful intentional discrimination (not an employment = practice=20 that is unlawful because of its disparate impact) prohibited under = section=20 703, 704, or 717 of the Act (42 U.S.C. 2000e-2, 2000e-3, 2000e-16), = and=20 provided that the complaining party cannot recover under section = 1981 of=20 this title, the complaining party may recover compensatory and = punitive=20 damages as allowed in subsection (b) of this section, in addition to = any=20 relief authorized by section 706(g) of the Civil Rights Act of 1964, = from=20 the respondent.

(2) = Disability. In an=20 action brought by a complaining party under the powers, remedies, = and=20 procedures set forth in section 706 or 717 of the Civil Rights Act = of 1964=20 (42 U.S.C. 2000e-5, 2000e-16) (as provided in section 107(a) of the=20 Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and = section=20 794a(a)(1) of title 29, respectively) against a respondent who = engaged in=20 unlawful intentional discrimination (not an employment practice that = is=20 unlawful because of its disparate impact) under section 791 of title = 29 and=20 the regulations implementing section 791 of title 29, or who = violated the=20 requirements of section 791 of title 29 or the regulations = implementing=20 section 791 of title 29 concerning the provision of a reasonable=20 accommodation, or section 102 of the Americans with Disabilities Act = of 1990=20 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of = the Act,=20 against an individual, the complaining party may recover = compensatory and=20 punitive damages as allowed in subsection (b) of this section, in = addition=20 to any relief authorized by section 706(g) of the Civil Rights Act = of 1964,=20 from the respondent.

(3) = Reasonable=20 accommodation and good faith effort. In cases where a discriminatory = practice involves the provision of a reasonable accommodation = pursuant to=20 section 102(b)(5) of the Americans with Disabilities Act of 1990 (42 = U.S.C.=20 12112(b)(5)) or regulations implementing section 791 of title 29, = damages=20 may not be awarded under this section where the covered entity = demonstrates=20 good faith efforts, in consultation with the person with the = disability who=20 has informed the covered entity that accommodation is needed, to = identify=20 and make a reasonable accommodation that would provide such = individual with=20 an equally effective opportunity and would not cause an undue = hardship on=20 the operation of the business.

(b) Compensatory and punitive damages

(1) = Determination of=20 punitive damages. A complaining party may recover punitive damages = under=20 this section against a respondent (other than a government, = government=20 agency or political subdivision) if the complaining party = demonstrates that=20 the respondent engaged in a discriminatory practice or = discriminatory=20 practices with malice or with reckless indifference to the federally = protected rights of an aggrieved individual.

(2) Exclusions = from=20 compensatory damages. Compensatory damages awarded under this = section shall=20 not include backpay, interest on backpay, or any other type of = relief=20 authorized under section 706(g) of the Civil Rights Act of 1964 (42 = U.S.C.=20 2000e-5(g)).
(3) Limitations. The sum of the amount of = compensatory=20 damages awarded under this section for future pecuniary losses, = emotional=20 pain, suffering, inconvenience, mental anguish, loss of enjoyment of = life,=20 and other nonpecuniary losses, and the amount of punitive damages = awarded=20 under this section, shall not exceed, for each complaining party=20 -

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

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

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

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

(4) = Construction.=20 Nothing in this section shall be construed to limit the scope of, or = the=20 relief available under, section 1981 of this = title.

(c) Jury trial. If a complaining party seeks compensatory or = punitive=20 damages under this section -

(1) any = party may demand=20 a trial by jury; and

(2) the court shall not inform the jury = of the=20 limitations described in subsection (b)(3) of this=20 section.

(d) Definitions. As used in this section:

(1) = Complaining party.=20 The term ''complaining party'' means -

(A) in the = case of a=20 person seeking to bring an action under subsection (a)(1) of this = section,=20 the Equal Employment Opportunity Commission, the Attorney General, = or a=20 person who may bring an action or proceeding under title VII of = the Civil=20 Rights Act of 1964 (42 U.S.C. 2000e et seq.); or

(B) in = the case=20 of a person seeking to bring an action under subsection (a)(2) of = this=20 section, the Equal Employment Opportunity Commission, the Attorney = General, a person who may bring an action or proceeding under = section=20 794a(a)(1) of title 29, or a person who may bring an action or = proceeding=20 under title I of the Americans with Disabilities Act of 1990 (42 = U.S.C.=20 12111 et seq.).

(2) = Discriminatory=20 practice. The term ''discriminatory practice'' means the = discrimination=20 described in paragraph (1), or the discrimination or the violation = described=20 in paragraph (2), of subsection (a) of this=20 section.

Source: (R.S. =A7 1977A, as added Pub. L. 102-166, title I, =A7 = 102, Nov. 21,=20 1991, 105 Stat. 1072.)

REFERENCES IN TEXT

The Civil Rights Act of 1964, referred to in subsec. (d)(1)(A), = is Pub.=20 L. 88-352, July 2, 1964, 78 Stat. 241, as amended. Title VII of the Act = is=20 classified generally to subchapter VI (Sec. 2000e et seq.) of this = chapter. For=20 complete classification of this Act to the Code, see Short Title note = set out=20 under section 2000a of this title and Tables.

The Americans with=20 Disabilities Act of 1990, referred to in subsec. (d)(1)(B) is Pub. L. = 101-336,=20 July 26, 1990, 104 Stat. 327, as amended. Title I of the Act is = classified=20 generally to subchapter I (Sec. 12111 et seq.) of chapter 126 of this = title. For=20 complete classification of this Act to the Code, see Short Title note = set out=20 under section 12101 of this title and Tables.

EFFECTIVE DATE

Section effective Nov. 21, 1991, except as otherwise provided, = see=20 section 402 of Pub. L. 102-166, set out as an Effective Date of 1991 = Amendment=20 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=20 sections 1202, 1311; title 3 section 411.