US (United States) Code. Title 5. Part III: Employees. Subpart F: Labor-management. Chapter 77: Appeals

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-CITE-

5 USC CHAPTER 77 - APPEALS 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart F - Labor-Management and Employee Relations

CHAPTER 77 - APPEALS

.

-HEAD-

CHAPTER 77 - APPEALS

-MISC1-

Sec.

7701. Appellate procedures.

7702. Actions involving discrimination.

7703. Judicial review of decisions of the Merit Systems Protection

Board.

AMENDMENTS

1978 - Pub. L. 95-454, title II, Sec. 205, Oct. 13, 1978, 92

Stat. 1138, substituted ''Appellate procedures'' for ''Appeals of

preference eligibles'' in item 7701, and added items 7702 and 7703.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 9701 of this title; title

6 section 293; title 29 section 783.

-CITE-

5 USC Sec. 7701 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart F - Labor-Management and Employee Relations

CHAPTER 77 - APPEALS

-HEAD-

Sec. 7701. Appellate procedures

-STATUTE-

(a) An employee, or applicant for employment, may submit an

appeal to the Merit Systems Protection Board from any action which

is appealable to the Board under any law, rule, or regulation. An

appellant shall have the right -

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

(2) to be represented by an attorney or other representative.

Appeals shall be processed in accordance with regulations

prescribed by the Board.

(b)(1) The Board may hear any case appealed to it or may refer

the case to an administrative law judge appointed under section

3105 of this title or other employee of the Board designated by the

Board to hear such cases, except that in any case involving a

removal from the service, the case shall be heard by the Board, an

employee experienced in hearing appeals, or an administrative law

judge. The Board, administrative law judge, or other employee (as

the case may be) shall make a decision after receipt of the written

representations of the parties to the appeal and after opportunity

for a hearing under subsection (a)(1) of this section. A copy of

the decision shall be furnished to each party to the appeal and to

the Office of Personnel Management.

(2)(A) If an employee or applicant for employment is the

prevailing party in an appeal under this subsection, the employee

or applicant shall be granted the relief provided in the decision

effective upon the making of the decision, and remaining in effect

pending the outcome of any petition for review under subsection

(e), unless -

(i) the deciding official determines that the granting of such

relief is not appropriate; or

(ii)(I) the relief granted in the decision provides that such

employee or applicant shall return or be present at the place of

employment during the period pending the outcome of any petition

for review under subsection (e); and

(II) the employing agency, subject to the provisions of

subparagraph (B), determines that the return or presence of such

employee or applicant is unduly disruptive to the work

environment.

(B) If an agency makes a determination under subparagraph

(A)(ii)(II) that prevents the return or presence of an employee at

the place of employment, such employee shall receive pay,

compensation, and all other benefits as terms and conditions of

employment during the period pending the outcome of any petition

for review under subsection (e).

(C) Nothing in the provisions of this paragraph may be construed

to require any award of back pay or attorney fees be paid before

the decision is final.

(3) With respect to an appeal from an adverse action covered by

subchapter V of chapter 75, authority to mitigate the personnel

action involved shall be available, subject to the same standards

as would apply in an appeal involving an action covered by

subchapter II of chapter 75 with respect to which mitigation

authority under this section exists.

(c)(1) Subject to paragraph (2) of this subsection, the decision

of the agency shall be sustained under subsection (b) only if the

agency's decision -

(A) in the case of an action based on unacceptable performance

described in section 4303, is supported by substantial evidence;

or

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

evidence.

(2) Notwithstanding paragraph (1), the agency's decision may not

be sustained under subsection (b) of this section if the employee

or applicant for employment -

(A) shows harmful error in the application of the agency's

procedures in arriving at such decision;

(B) shows that the decision was based on any prohibited

personnel practice described in section 2302(b) of this title; or

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

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

(A) the interpretation or application of any civil service law,

rule, or regulation, under the jurisdiction of the Office of

Personnel Management is at issue in any proceeding under this

section; and

(B) the Director of the Office of Personnel Management is of

the opinion that an erroneous decision would have a substantial

impact on any civil service law, rule, or regulation under the

jurisdiction of the Office;

the Director may as a matter of right intervene or otherwise

participate in that proceeding before the Board. If the Director

exercises his right to participate in a proceeding before the

Board, he shall do so as early in the proceeding as practicable.

Nothing in this title shall be construed to permit the Office to

interfere with the independent decisionmaking of the Merit Systems

Protection Board.

(2) The Board shall promptly notify the Director whenever the

interpretation of any civil service law, rule, or regulation under

the jurisdiction of the Office is at issue in any proceeding under

this section.

(e)(1) Except as provided in section 7702 of this title, any

decision under subsection (b) of this section shall be final unless

-

(A) a party to the appeal or the Director petitions the Board

for review within 30 days after the receipt of the decision; or

(B) the Board reopens and reconsiders a case on its own motion.

The Board, for good cause shown, may extend the 30-day period

referred to in subparagraph (A) of this paragraph. One member of

the Board may grant a petition or otherwise direct that a decision

be reviewed by the full Board. The preceding sentence shall not

apply if, by law, a decision of an administrative law judge is

required to be acted upon by the Board.

(2) The Director may petition the Board for a review under

paragraph (1) of this subsection only if the Director is of the

opinion that the decision is erroneous and will have a substantial

impact on any civil service law, rule, or regulation under the

jurisdiction of the Office.

(f) The Board, or an administrative law judge or other employee

of the Board designated to hear a case, may -

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

(2) join two or more appeals filed by the same appellant and

hear and decide them concurrently,

if the deciding official or officials hearing the cases are of the

opinion that the action could result in the appeals' being

processed more expeditiously and would not adversely affect any

party.

(g)(1) Except as provided in paragraph (2) of this subsection,

the Board, or an administrative law judge or other employee of the

Board designated to hear a case, may require payment by the agency

involved of reasonable attorney fees incurred by an employee or

applicant for employment if the employee or applicant is the

prevailing party and the Board, administrative law judge, or other

employee (as the case may be) determines that payment by the agency

is warranted in the interest of justice, including any case in

which a prohibited personnel practice was engaged in by the agency

or any case in which the agency's action was clearly without merit.

(2) If an employee or applicant for employment is the prevailing

party and the decision is based on a finding of discrimination

prohibited under section 2302(b)(1) of this title, the payment of

attorney fees shall be in accordance with the standards prescribed

under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C.

2000e-5(k)).

(h) The Board may, by regulation, provide for one or more

alternative methods for settling matters subject to the appellate

jurisdiction of the Board which shall be applicable at the election

of an applicant for employment or of an employee who is not in a

unit for which a labor organization is accorded exclusive

recognition, and shall be in lieu of other procedures provided for

under this section. A decision under such a method shall be final,

unless the Board reopens and reconsiders a case at the request of

the Office of Personnel Management under subsection (e) of this

section.

(i)(1) Upon the submission of any appeal to the Board under this

section, the Board, through reference to such categories of cases,

or other means, as it determines appropriate, shall establish and

announce publicly the date by which it intends to complete action

on the matter. Such date shall assure expeditious consideration of

the appeal, consistent with the interests of fairness and other

priorities of the Board. If the Board fails to complete action on

the appeal by the announced date, and the expected delay will

exceed 30 days, the Board shall publicly announce the new date by

which it intends to complete action on the appeal.

(2) Not later than March 1 of each year, the Board shall submit

to the Congress a report describing the number of appeals submitted

to it during the preceding fiscal year, the number of appeals on

which it completed action during that year, and the number of

instances during that year in which it failed to conclude a

proceeding by the date originally announced, together with an

explanation of the reasons therefor.

(3) The Board shall by rule indicate any other category of

significant Board action which the Board determines should be

subject to the provisions of this subsection.

(4) It shall be the duty of the Board, an administrative law

judge, or employee designated by the Board to hear any proceeding

under this section to expedite to the extent practicable that

proceeding.

(j) In determining the appealability under this section of any

case involving a removal from the service (other than the removal

of a reemployed annuitant), neither an individual's status under

any retirement system established by or under Federal statute nor

any election made by such individual under any such system may be

taken into account.

(k) The Board may prescribe regulations to carry out the purpose

of this section.

-SOURCE-

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 95-454, title

II, Sec. 205, Oct. 13, 1978, 92 Stat. 1138; Pub. L. 96-54, Sec.

2(a)(45), Aug. 14, 1979, 93 Stat. 384; Pub. L. 99-386, title II,

Sec. 208, Aug. 22, 1986, 100 Stat. 824; Pub. L. 101-12, Sec. 6,

Apr. 10, 1989, 103 Stat. 33; Pub. L. 101-194, title V, Sec.

506(b)(6), Nov. 30, 1989, 103 Stat. 1758; Pub. L. 101-280, Sec.

6(d)(2), May 4, 1990, 104 Stat. 160; Pub. L. 101-376, Sec. 3, Aug.

17, 1990, 104 Stat. 462; Pub. L. 102-175, Sec. 5, Dec. 2, 1991, 105

Stat. 1223; Pub. L. 102-378, Sec. 2(56), Oct. 2, 1992, 106 Stat.

1354; Pub. L. 107-296, title XIII, Sec. 1321(a)(3), Nov. 25, 2002,

116 Stat. 2297.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Derivation U.S. Code Revised Statutes and

Statutes at Large

---------------------------------------------------------------------

5 U.S.C. 863 (less June 27, 1944, ch.

1st 168 words, and 287, Sec. 14 (less

less 2d proviso). 1st 168 words, and

less 2d proviso),

58 Stat. 390. Aug.

4, 1947, ch. 447,

61 Stat. 723.

5 U.S.C. 868 June 22, 1948, ch.

(proviso). 604, 62 Stat. 575.

-------------------------------

The application of the section is established by the words ''A

preference eligible employee as defined by section 7511 of this

title''. Specific mention of the actions appealable are covered by

the reference to ''an adverse decision under section 7512 of this

title''. The words ''administrative authority'' are substituted

for ''administrative officer'' to avoid conflict with the

definitions of ''employee'' and ''officer'' in chapter 21 of this

title and to include an individual who is employed by the

government of the District of Columbia or who is a member of a

uniformed service as such an individual could have been an

''administrative officer'' under former section 863. The words

''the date of'' in the phrase ''after the date of receipt of

notice'' are omitted as unnecessary. The words ''reasonable rules

and'' in the phrase ''reasonable rules and regulations'' are

omitted as unnecessary. The word ''proper'' in the phrase ''proper

administrative officer'' is omitted as unnecessary. The word

''designated'' in the phrase ''designated representative'' is

omitted as unnecessary.

Standard changes are made to conform with the definitions

applicable and the style of this title outlined in preface to the

report.

-REFTEXT-

REFERENCES IN TEXT

The civil service law, referred to in subsecs. (d) and (e)(2), is

set out in this title. See, particularly, section 3301 et seq. of

this title.

-MISC2-

AMENDMENTS

2002 - Subsec. (c)(1)(A). Pub. L. 107-296, which directed the

amendment of subpar. (A) by striking ''or removal from the Senior

Executive Service for failure to be recertified under section

3393a'', was executed by striking out ''or a removal from the

Senior Executive Service for failure to be recertified under

section 3393a'' after ''section 4303'' to reflect the probable

intent of Congress.

1992 - Subsec. (c)(1)(A). Pub. L. 102-378 amended subpar. (A)

generally. Prior to amendment, subpar. (A) read as follows: ''in

the case of an action based on unacceptable performance described

in section 4303 or a removal from the Senior Executive Service for

failure to be recertified under section 3393a of this title, is

supported by substantial evidence, or''.

1991 - Subsec. (b)(3). Pub. L. 102-175 added par. (3).

1990 - Subsec. (c)(1)(A). Pub. L. 101-280 amended Pub. L.

101-194, see 1989 Amendment note below.

Subsecs. (j), (k). Pub. L. 101-376 added subsec. (j) and

redesignated former subsec. (j) as (k).

1989 - Subsec. (b). Pub. L. 101-12 designated existing provisions

as par. (1) and added par. (2).

Subsec. (c)(1)(A). Pub. L. 101-194, as amended by Pub. L.

101-280, which directed the substitution of ''or a removal from the

Senior Executive Service for failure to be recertified under

section 3393a of'' for ''of'', was executed by making the

substitution for the second reference to ''of'' as the probable

intent of Congress.

1986 - Subsec. (i)(2). Pub. L. 99-386 substituted ''fiscal'' for

''calendar''.

1979 - Subsec. (e)(1). Pub. L. 96-54, Sec. 2(a)(45)(A),

substituted ''administrative'' for ''administration''.

Subsec. (g)(1). Pub. L. 96-54, Sec. 2(a)(45)(B), substituted

''(as the case may be)'' for '', as the case may be,''.

Subsec. (h). Pub. L. 96-54, Sec. 2(a)(45)(C), substituted

''subsection (e)'' for ''subsection (d)''.

1978 - Pub. L. 95-454 substituted ''Appellate procedures'' for

''Appeals of preference eligibles'' in section catchline, and in

text substituted provisions relating to procedures applicable with

respect to the Merit Systems Protection Board for an employee or

applicant for employment, for provisions relating to appeals of

preference eligible employees.

EFFECTIVE DATE OF 2002 AMENDMENT

Amendment by Pub. L. 107-296 effective 60 days after Nov. 25,

2002, see section 4 of Pub. L. 107-296, set out as an Effective

Date note under section 101 of Title 6, Domestic Security.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101-376 effective Aug. 17, 1990, and

applicable with respect to any appeal or other proceeding brought

on or after such date, see section 4 of Pub. L. 101-376, set out as

a note under section 4303 of this title.

EFFECTIVE DATE OF 1989 AMENDMENTS

Amendment by Pub. L. 101-194 effective Jan. 1, 1991, see section

506(d) of Pub. L. 101-194, set out as a note under section 3151 of

this title.

Amendment by Pub. L. 101-12 effective 90 days following Apr. 10,

1989, see section 11 of Pub. L. 101-12, set out as a note under

section 1201 of this title.

EFFECTIVE DATE OF 1979 AMENDMENT

Amendment by Pub. L. 96-54 effective July 12, 1979, see section

2(b) of Pub. L. 96-54, set out as a note under section 305 of this

title.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment by Pub. L. 95-454 effective 90 days after Oct. 13,

1978, see section 907 of Pub. L. 95-454, set out as a note under

section 1101 of this title.

SAVINGS PROVISION

For effect of Pub. L. 101-12 on orders, rules, and regulations

issued before effective date of Pub. L. 101-12, administrative

proceedings pending at time provisions of Pub. L. 101-12 take

effect, and suits and other proceedings as in effect immediately

before effective date of Pub. L. 101-12, see section 7 of Pub. L.

101-12, set out as a note under section 1201 of this title.

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of reporting provisions

in subsec. (i)(2) of this section, see section 3003 of Pub. L.

104-66, as amended, set out as a note under section 1113 of Title

31, Money and Finance, and page 177 of House Document No. 103-7.

-EXEC-

EXECUTIVE ORDER NO. 11787

Ex. Ord. No. 11787, June 11, 1974, 39 F.R. 20675; Ex. Ord. No.

12107, Dec. 28, 1978, 44 F.R. 1055, which provided that the appeals

system established by the Merit Systems Protection Board is the

sole system of appeal for an employee covered by that appeal

system, was revoked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R.

7237.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 2105, 2302, 3395a,

3592, 3593, 3595, 4303, 5596, 7121, 7513, 7543, 7702, 7703, 8347,

8451, 8461 of this title; title 10 section 1610; title 22 sections

1438, 4137; title 28 section 569; title 31 section 753; title 49

section 40122.

-CITE-

5 USC Sec. 7702 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart F - Labor-Management and Employee Relations

CHAPTER 77 - APPEALS

-HEAD-

Sec. 7702. Actions involving discrimination

-STATUTE-

(a)(1) Notwithstanding any other provision of law, and except as

provided in paragraph (2) of this subsection, in the case of any

employee or applicant for employment who -

(A) has been affected by an action which the employee or

applicant may appeal to the Merit Systems Protection Board, and

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

prohibited by -

(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C.

2000e-16),

(ii) section 6(d) of the Fair Labor Standards Act of 1938 (29

U.S.C. 206(d)),

(iii) section 501 of the Rehabilitation Act of 1973 (29

U.S.C. 791),

(iv) sections 12 and 15 of the Age Discrimination in

Employment Act of 1967 (29 U.S.C. 631, 633a), or

(v) any rule, regulation, or policy directive prescribed

under any provision of law described in clauses (i) through

(iv) of this subparagraph,

the Board shall, within 120 days of the filing of the appeal,

decide both the issue of discrimination and the appealable action

in accordance with the Board's appellate procedures under section

7701 of this title and this section.

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

(A) any action described in paragraph (1)(A) of this

subsection; and

(B) any issue of discrimination prohibited under any provision

of law described in paragraph (1)(B) of this subsection;

the agency shall resolve such matter within 120 days. The decision

of the agency in any such matter shall be a judicially reviewable

action unless the employee appeals the matter to the Board under

paragraph (1) of this subsection.

(3) Any decision of the Board under paragraph (1) of this

subsection shall be a judicially reviewable action as of -

(A) the date of issuance of the decision if the employee or

applicant does not file a petition with the Equal Employment

Opportunity Commission under subsection (b)(1) of this section,

or

(B) the date the Commission determines not to consider the

decision under subsection (b)(2) of this section.

(b)(1) An employee or applicant may, within 30 days after notice

of the decision of the Board under subsection (a)(1) of this

section, petition the Commission to consider the decision.

(2) The Commission shall, within 30 days after the date of the

petition, determine whether to consider the decision. A

determination of the Commission not to consider the decision may

not be used as evidence with respect to any issue of discrimination

in any judicial proceeding concerning that issue.

(3) If the Commission makes a determination to consider the

decision, the Commission shall, within 60 days after the date of

the determination, consider the entire record of the proceedings of

the Board and, on the basis of the evidentiary record before the

Board, as supplemented under paragraph (4) of this subsection,

either -

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

(B) issue in writing another decision which differs from the

decision of the Board to the extent that the Commission finds

that, as a matter of law -

(i) the decision of the Board constitutes an incorrect

interpretation of any provision of any law, rule, regulation,

or policy directive referred to in subsection (a)(1)(B) of this

section, or

(ii) the decision involving such provision is not supported

by the evidence in the record as a whole.

(4) In considering any decision of the Board under this

subsection, the Commission may refer the case to the Board, or

provide on its own, for the taking (within such period as permits

the Commission to make a decision within the 60-day period

prescribed under this subsection) of additional evidence to the

extent it considers necessary to supplement the record.

(5)(A) If the Commission concurs pursuant to paragraph (3)(A) of

this subsection in the decision of the Board, the decision of the

Board shall be a judicially reviewable action.

(B) If the Commission issues any decision under paragraph (3)(B)

of this subsection, the Commission shall immediately refer the

matter to the Board.

(c) Within 30 days after receipt by the Board of the decision of

the Commission under subsection (b)(5)(B) of this section, the

Board shall consider the decision and -

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

or

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

law, (A) the Commission decision constitutes an incorrect

interpretation of any provision of any civil service law, rule,

regulation or policy directive, or (B) the Commission decision

involving such provision is not supported by the evidence in the

record as a whole -

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

(ii) reaffirm the initial decision of the Board with such

revisions as it determines appropriate.

If the Board takes the action provided under paragraph (1), the

decision of the Board shall be a judicially reviewable action.

(d)(1) If the Board takes any action under subsection (c)(2) of

this section, the matter shall be immediately certified to a

special panel described in paragraph (6) of this subsection. Upon

certification, the Board shall, within 5 days (excluding Saturdays,

Sundays, and holidays), transmit to the special panel the

administrative record in the proceeding, including -

(A) the factual record compiled under this section,

(B) the decisions issued by the Board and the Commission under

this section, and

(C) any transcript of oral arguments made, or legal briefs

filed, before the Board or the Commission.

(2)(A) The special panel shall, within 45 days after a matter has

been certified to it, review the administrative record transmitted

to it and, on the basis of the record, decide the issues in dispute

and issue a final decision which shall be a judicially reviewable

action.

(B) The special panel shall give due deference to the respective

expertise of the Board and Commission in making its decision.

(3) The special panel shall refer its decision under paragraph

(2) of this subsection to the Board and the Board shall order any

agency to take any action appropriate to carry out the decision.

(4) The special panel shall permit the employee or applicant who

brought the complaint and the employing agency to appear before the

panel to present oral arguments and to present written arguments

with respect to the matter.

(5) Upon application by the employee or applicant, the Commission

may issue such interim relief as it determines appropriate to

mitigate any exceptional hardship the employee or applicant might

otherwise incur as a result of the certification of any matter

under this subsection, except that the Commission may not stay, or

order any agency to review on an interim basis, the action referred

to in subsection (a)(1) of this section.

(6)(A) Each time the Board takes any action under subsection

(c)(2) of this section, a special panel shall be convened which

shall consist of -

(i) an individual appointed by the President, by and with the

advice and consent of the Senate, to serve for a term of 6 years

as chairman of the special panel each time it is convened;

(ii) one member of the Board designated by the Chairman of the

Board each time a panel is convened; and

(iii) one member of the Commission designated by the Chairman

of the Commission each time a panel is convened.

The chairman of the special panel may be removed by the President

only for inefficiency, neglect of duty, or malfeasance in office.

(B) The chairman is entitled to pay at a rate equal to the

maximum annual rate of basic pay payable under the General Schedule

for each day he is engaged in the performance of official business

on the work of the special panel.

(C) The Board and the Commission shall provide such

administrative assistance to the special panel as may be necessary

and, to the extent practicable, shall equally divide the costs of

providing the administrative assistance.

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

after -

(A) the 120th day following the filing of any matter described

in subsection (a)(2) of this section with an agency, there is not

judicially reviewable action under this section or an appeal

under paragraph (2) of this subsection;

(B) the 120th day following the filing of an appeal with the

Board under subsection (a)(1) of this section, there is no

judicially reviewable action (unless such action is not as the

result of the filing of a petition by the employee under

subsection (b)(1) of this section); or

(C) the 180th day following the filing of a petition with the

Equal Employment Opportunity Commission under subsection (b)(1)

of this section, there is no final agency action under subsection

(b), (c), or (d) of this section;

an employee shall be entitled to file a civil action to the same

extent and in the same manner as provided in section 717(c) of the

Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of

the Age Discrimination in Employment Act of 1967 (29 U.S.C.

633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938

(29 U.S.C. 216(b)).

(2) If, at any time after the 120th day following the filing of

any matter described in subsection (a)(2) of this section with an

agency, there is no judicially reviewable action, the employee may

appeal the matter to the Board under subsection (a)(1) of this

section.

(3) Nothing in this section shall be construed to affect the

right to trial de novo under any provision of law described in

subsection (a)(1) of this section after a judicially reviewable

action, including the decision of an agency under subsection (a)(2)

of this section.

(f) In any case in which an employee is required to file any

action, appeal, or petition under this section and the employee

timely files the action, appeal, or petition with an agency other

than the agency with which the action, appeal, or petition is to be

filed, the employee shall be treated as having timely filed the

action, appeal, or petition as of the date it is filed with the

proper agency.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 205, Oct. 13, 1978, 92 Stat.

1140; amended Pub. L. 96-54, Sec. 2(a)(46), Aug. 14, 1979, 93 Stat.

384.)

-REFTEXT-

REFERENCES IN TEXT

The civil service law, referred to in subsec. (c)(2), is set out

in this title. See, particularly, section 3301 et seq. of this

title. The General Schedule, referred to in subsec. (d)(6)(B), is

set out under section 5332 of this title.

-MISC2-

AMENDMENTS

1979 - Subsec. (a)(1)(A). Pub. L. 96-54, Sec. 2(a)(46)(A),

substituted ''affected'' for ''effected''.

Subsec. (a)(1)(B)(i). Pub. L. 96-54, Sec. 2(a)(46)(B),

substituted ''2000e-16'' for ''2000e-16c''.

Subsec. (e)(1). Pub. L. 96-54, Sec. 2(a)(46)(C), (D), substituted

''of this section'' for ''of this title'' in subpar. (C), and

''216(b)'' for ''216(d)'' in provision following subpar. (C).

EFFECTIVE DATE OF 1979 AMENDMENT

Amendment by Pub. L. 96-54 effective July 12, 1979, see section

2(b) of Pub. L. 96-54, set out as a note under section 305 of this

title.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see section 907 of

Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note

under section 1101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7121, 7701, 7703 of this

title; title 3 section 454; title 6 section 293; title 31 section

753; title 49 section 40122.

-CITE-

5 USC Sec. 7703 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART III - EMPLOYEES

Subpart F - Labor-Management and Employee Relations

CHAPTER 77 - APPEALS

-HEAD-

Sec. 7703. Judicial review of decisions of the Merit Systems

Protection Board

-STATUTE-

(a)(1) Any employee or applicant for employment adversely

affected or aggrieved by a final order or decision of the Merit

Systems Protection Board may obtain judicial review of the order or

decision.

(2) The Board shall be named respondent in any proceeding brought

pursuant to this subsection, unless the employee or applicant for

employment seeks review of a final order or decision on the merits

on the underlying personnel action or on a request for attorney

fees, in which case the agency responsible for taking the personnel

action shall be the respondent.

(b)(1) Except as provided in paragraph (2) of this subsection, a

petition to review a final order or final decision of the Board

shall be filed in the United States Court of Appeals for the

Federal Circuit. Notwithstanding any other provision of law, any

petition for review must be filed within 60 days after the date the

petitioner received notice of the final order or decision of the

Board.

(2) Cases of discrimination subject to the provisions of section

7702 of this title shall be filed under section 717(c) of the Civil

Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the

Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)),

and section 16(b) of the Fair Labor Standards Act of 1938, as

amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any

other provision of law, any such case filed under any such section

must be filed within 30 days after the date the individual filing

the case received notice of the judicially reviewable action under

such section 7702.

(c) In any case filed in the United States Court of Appeals for

the Federal Circuit, the court shall review the record and hold

unlawful and set aside any agency action, findings, or conclusions

found to be -

(1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law;

(2) obtained without procedures required by law, rule, or

regulation having been followed; or

(3) unsupported by substantial evidence;

except that in the case of discrimination brought under any section

referred to in subsection (b)(2) of this section, the employee or

applicant shall have the right to have the facts subject to trial

de novo by the reviewing court.

(d) The Director of the Office of Personnel Management may obtain

review of any final order or decision of the Board by filing,

within 60 days after the date the Director received notice of the

final order or decision of the Board, a petition for judicial

review in the United States Court of Appeals for the Federal

Circuit if the Director determines, in his discretion, that the

Board erred in interpreting a civil service law, rule, or

regulation affecting personnel management and that the Board's

decision will have a substantial impact on a civil service law,

rule, regulation, or policy directive. If the Director did not

intervene in a matter before the Board, the Director may not

petition for review of a Board decision under this section unless

the Director first petitions the Board for a reconsideration of its

decision, and such petition is denied. In addition to the named

respondent, the Board and all other parties to the proceedings

before the Board shall have the right to appear in the proceeding

before the Court of Appeals. The granting of the petition for

judicial review shall be at the discretion of the Court of Appeals.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 205, Oct. 13, 1978, 92 Stat.

1143; amended Pub. L. 97-164, title I, Sec. 144, Apr. 2, 1982, 96

Stat. 45; Pub. L. 101-12, Sec. 10, Apr. 10, 1989, 103 Stat. 35;

Pub. L. 105-311, Sec. 10(a), Oct. 30, 1998, 112 Stat. 2954.)

-REFTEXT-

REFERENCES IN TEXT

The civil service law, referred to in subsec. (d), is set out in

this title. See, particularly, section 3301 et seq. of this title.

-MISC2-

AMENDMENTS

1998 - Subsec. (b)(1). Pub. L. 105-311, Sec. 10(a)(1),

substituted ''within 60 days'' for ''within 30 days''.

Subsec. (d). Pub. L. 105-311, Sec. 10(a)(2), in first sentence,

inserted '', within 60 days after the date the Director received

notice of the final order or decision of the Board,'' after

''filing''.

1989 - Subsec. (a)(2). Pub. L. 101-12 amended par. (2)

generally. Prior to amendment, par. (2) read as follows: ''The

Board shall be the named respondent in any proceeding brought

pursuant to this subsection, unless the employee or applicant for

employment seeks review of a final order or decision issued by the

Board under section 7701. In review of a final order or decision

issued under section 7701, the agency responsible for taking the

action appealed to the Board shall be the named respondent.''

1982 - Subsec. (b)(1). Pub. L. 97-164, Sec. 144(1), substituted

''United States Court of Appeals for the Federal Circuit'' for

''Court of Claims or a United States court of appeals as provided

in chapters 91 and 158, respectively, of title 28''.

Subsec. (c). Pub. L. 97-164, Sec. 144(2), substituted ''Court of

Appeals for the Federal Circuit'' for ''Court of Claims or a United

States court of appeals''.

Subsec. (d). Pub. L. 97-164, Sec. 144(3), substituted ''United

States Court of Appeals for the Federal Circuit'' for ''United

States Court of Appeals for the District of Columbia''.

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-311, Sec. 10(b), Oct. 30, 1998, 112 Stat. 2954,

provided that: ''The amendments made by this section (amending this

section) shall take effect on the date of enactment of this Act

(Oct. 30, 1998), and apply to any suit, action, or other

administrative or judicial proceeding pending on such date or

commenced on or after such date.''

EFFECTIVE DATE OF 1989 AMENDMENT

Amendment by Pub. L. 101-12 effective 90 days following Apr. 10,

1989, see section 11 of Pub. L. 101-12, set out as a note under

section 1201 of this title.

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of Title

28, Judiciary and Judicial Procedure.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see section 907 of

Pub. L. 95-454, set out as an Effective Date of 1978 Amendment note

under section 1101 of this title.

SAVINGS PROVISION

For effect of Pub. L. 101-12 on orders, rules, and regulations

issued before effective date of Pub. L. 101-12, administrative

proceedings pending at time provisions of Pub. L. 101-12 take

effect, and suits and other proceedings as in effect immediately

before effective date of Pub. L. 101-12, see section 7 of Pub. L.

101-12 set out as a note under section 1201 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1214, 1215, 1221, 7121,

8347, 8461 of this title; title 28 section 1295; title 38 section

4324; title 49 section 40122.

-CITE-