-CITE-

5 USC CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD,

OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE

RIGHT OF ACTION 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

.

-HEAD-

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

-MISC1-

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

Sec.

1201. Appointment of members of the Merit Systems Protection Board.

1202. Term of office; filling vacancies; removal.

1203. Chairman; Vice Chairman.

1204. Powers and functions of the Merit Systems Protection Board.

1205. Transmittal of information to Congress.

1206. Annual report.

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

1211. Establishment.

1212. Powers and functions of the Office of Special Counsel.

1213. Provisions relating to disclosures of violations of law,

mismanagement, and certain other matters. (FOOTNOTE 1)

(FOOTNOTE 1) So in original. Does not conform to section

catchline.

1214. Investigation of prohibited personnel practices; corrective

action.

1215. Disciplinary action.

1216. Other matters within the jurisdiction of the Office of

Special Counsel.

1217. Transmittal of information to Congress.

1218. Annual report.

1219. Public information.

SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL

CASES

1221. Individual right of action in certain reprisal cases.

1222. Availability of other remedies.

AMENDMENTS

1989 - Pub. L. 101-12, Sec. 3(b)(2), (3), Apr. 10, 1989, 103

Stat. 31, substituted '', OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE

RIGHT OF ACTION'' for ''AND SPECIAL COUNSEL'' in chapter heading,

and amended chapter analysis generally, inserting subchapter I

heading, and in item 1204 substituting ''Powers and functions of

the Merit Systems Protection Board'' for ''Special Counsel;

appointment and removal'', in item 1205 substituting ''Transmittal

of information to Congress'' for ''Powers and functions of the

Merit Systems Protection Board and Special Counsel'', in item 1206

substituting ''Annual report'' for ''Authority and responsibilities

of the Special Counsel'', omitting items 1207 ''Hearings and

decisions on complaints filed by the Special Counsel'', 1208

''Stays of certain personnel actions'', and 1209 ''Information'',

and inserting subchapters II and III headings and items 1211 to

1219, 1221, and 1222.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 2302, 3352 of this title;

title 3 section 401; title 6 section 344; title 22 section 4139;

title 49 section 40122.

-CITE-

5 USC SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

.

-HEAD-

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-MISC1-

AMENDMENTS

1989 - Pub. L. 101-12, Sec. 3(b)(4), Apr. 10, 1989, 103 Stat. 31,

inserted subchapter heading.

-CITE-

5 USC Sec. 1201 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1201. Appointment of members of the Merit Systems Protection

Board

-STATUTE-

The Merit Systems Protection Board is composed of 3 members

appointed by the President, by and with the advice and consent of

the Senate, not more than 2 of whom may be adherents of the same

political party. The members of the Board shall be individuals

who, by demonstrated ability, background, training, or experience

are especially qualified to carry out the functions of the Board.

No member of the Board may hold another office or position in the

Government of the United States, except as otherwise provided by

law or at the direction of the President. The Board shall have an

official seal which shall be judicially noticed. The Board shall

have its principal office in the District of Columbia and may have

field offices in other appropriate locations.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1121; amended Pub. L. 101-12, Sec. 3(a)(1), Apr. 10, 1989,

103 Stat. 16.)

-MISC1-

AMENDMENTS

1989 - Pub. L. 101-12 substituted ''The members'' for ''The

Chairman and members'' in second sentence.

EFFECTIVE DATE OF 1989 AMENDMENT

Section 11 of Pub. L. 101-12 provided that: ''This Act and the

amendments made by this Act (see Short Title of 1989 Amendment note

below) shall take effect 90 days following the date of enactment of

this Act (Apr. 10, 1989).''

EFFECTIVE DATE

Subchapter 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.

SHORT TITLE OF 1989 AMENDMENT

Section 1 of Pub. L. 101-12 provided that: ''This Act (enacting

subchapters II and III of this chapter and section 3352 of this

title, amending this section and sections 1202 to 1206, 1209, 1211,

2302, 2303, 3393, 7502, 7512, 7521, 7542, 7701, and 7703 of this

title and section 4139 of Title 22, Foreign Relations and

Intercourse, repealing sections 1207 and 1208 of this title, and

enacting provisions set out as notes under this section and

sections 1211 and 5509 of this title) may be cited as the

'Whistleblower Protection Act of 1989'.''

SAVINGS PROVISION

Section 7 of Pub. L. 101-12 provided that:

''(a) Orders, Rules, and Regulations. - All orders, rules, and

regulations issued by the Merit Systems Protection Board or the

Special Counsel before the effective date of this Act (see

Effective Date of 1989 Amendment note above) shall continue in

effect, according to their terms, until modified, terminated,

superseded, or repealed.

''(b) Administrative Proceedings. - No provision of this Act (see

Short Title of 1989 Amendment note above) shall affect any

administrative proceeding pending at the time such provisions take

effect. Orders shall be issued in such proceedings, and appeals

shall be taken therefrom, as if this Act had not been enacted.

''(c) Suits and Other Proceedings. - No suit, action, or other

proceeding lawfully commenced by or against the members of the

Merit Systems Protection Board, the Special Counsel, or officers or

employees thereof, in their official capacity or in relation to the

discharge of their official duties, as in effect immediately before

the effective date of this Act (see Effective Date of 1989

Amendment note above), shall abate by reason of the enactment of

this Act. Determinations with respect to any such suit, action, or

other proceeding shall be made as if this Act had not been

enacted.''

WHISTLEBLOWER PROTECTION; CONGRESSIONAL STATEMENT OF FINDINGS AND

PURPOSE

Section 2 of Pub. L. 101-12 provided that:

''(a) Findings. - The Congress finds that -

''(1) Federal employees who make disclosures described in

section 2302(b)(8) of title 5, United States Code, serve the

public interest by assisting in the elimination of fraud, waste,

abuse, and unnecessary Government expenditures;

''(2) protecting employees who disclose Government illegality,

waste, and corruption is a major step toward a more effective

civil service; and

''(3) in passing the Civil Service Reform Act of 1978 (Pub. L.

95-454, see Tables for classification), Congress established the

Office of Special Counsel to protect whistleblowers (those

individuals who make disclosures described in such section

2302(b)(8)) from reprisal.

''(b) Purpose. - The purpose of this Act (see Short Title of 1989

Amendment note above) is to strengthen and improve protection for

the rights of Federal employees, to prevent reprisals, and to help

eliminate wrongdoing within the Government by -

''(1) mandating that employees should not suffer adverse

consequences as a result of prohibited personnel practices; and

''(2) establishing -

''(A) that the primary role of the Office of Special Counsel

is to protect employees, especially whistleblowers, from

prohibited personnel practices;

''(B) that the Office of Special Counsel shall act in the

interests of employees who seek assistance from the Office of

Special Counsel; and

''(C) that while disciplining those who commit prohibited

personnel practices may be used as a means by which to help

accomplish that goal, the protection of individuals who are the

subject of prohibited personnel practices remains the paramount

consideration.''

TERMS OF OFFICE OF MEMBERS

Section 202(b) of Pub. L. 95-454 provided that: ''Any term of

office of any member of the Merit Systems Protection Board serving

on the effective date of this Act (see Effective Date of 1978

Amendment note set out under section 1101 of this title) shall

continue in effect until the term would expire under section 1102

of title 5, United States Code, as in effect immediately before the

effective date of this Act, and upon expiration of the term,

appointments to such office shall be made under sections 1201 and

1202 of title 5, United States Code (as added by this section).''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1202 of this title.

-CITE-

5 USC Sec. 1202 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1202. Term of office; filling vacancies; removal

-STATUTE-

(a) The term of office of each member of the Merit Systems

Protection Board is 7 years.

(b) A member appointed to fill a vacancy occurring before the end

of a term of office of the member's predecessor serves for the

remainder of that term. Any appointment to fill a vacancy is

subject to the requirements of section 1201. Any new member serving

only a portion of a seven-year term in office may continue to serve

until a successor is appointed and has qualified, except that such

member may not continue to serve for more than one year after the

date on which the term of the member would otherwise expire, unless

reappointed.

(c) Any member appointed for a 7-year term may not be reappointed

to any following term but may continue to serve beyond the

expiration of the term until a successor is appointed and has

qualified, except that such member may not continue to serve for

more than one year after the date on which the term of the member

would otherwise expire under this section.

(d) Any member may be removed by the President only for

inefficiency, neglect of duty, or malfeasance in office.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1122; amended Pub. L. 100-202, Sec. 101(m) (title VI, Sec.

620), Dec. 22, 1987, 101 Stat. 1329-390, 1329-427; Pub. L. 101-12,

Sec. 3(a)(2), (3), Apr. 10, 1989, 103 Stat. 17.)

-MISC1-

AMENDMENTS

1989 - Pub. L. 101-12, Sec. 3(a)(2), substituted a semicolon for

the comma after ''office'' in section catchline.

Subsec. (b). Pub. L. 101-12, Sec. 3(a)(3), substituted ''the

member's'' for ''his'' in first sentence and struck out ''of this

title'' after ''section 1201'' in second sentence.

1987 - Subsec. (b). Pub. L. 100-202 inserted provision permitting

any new member serving portion of seven-year term to continue

serving until successor is appointed and has qualified, with

exception limiting duration of such service.

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.

-CITE-

5 USC Sec. 1203 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1203. Chairman; Vice Chairman

-STATUTE-

(a) The President shall from time to time appoint, by and with

the advice and consent of the Senate, one of the members of the

Merit Systems Protection Board as the Chairman of the Board. The

Chairman is the chief executive and administrative officer of the

Board.

(b) The President shall from time to time designate one of the

members of the Board as Vice Chairman of the Board. During the

absence or disability of the Chairman, or when the office of

Chairman is vacant, the Vice Chairman shall perform the functions

vested in the Chairman.

(c) During the absence or disability of both the Chairman and the

Vice Chairman, or when the offices of Chairman and Vice Chairman

are vacant, the remaining Board member shall perform the functions

vested in the Chairman.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1122; amended Pub. L. 101-12, Sec. 3(a)(4), (5), Apr. 10,

1989, 103 Stat. 17.)

-MISC1-

AMENDMENTS

1989 - Subsec. (a). Pub. L. 101-12, Sec. 3(a)(4), struck out the

comma after ''time'' in first sentence.

Subsec. (c). Pub. L. 101-12, Sec. 3(a)(5), substituted ''the

Chairman and the Vice Chairman'' for ''the Chairman and Vice

Chairman'' after ''both''.

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.

-CITE-

5 USC Sec. 1204 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1204. Powers and functions of the Merit Systems Protection

Board

-STATUTE-

(a) The Merit Systems Protection Board shall -

(1) hear, adjudicate, or provide for the hearing or

adjudication, of all matters within the jurisdiction of the Board

under this title, chapter 43 of title 38, or any other law, rule,

or regulation, and, subject to otherwise applicable provisions of

law, take final action on any such matter;

(2) order any Federal agency or employee to comply with any

order or decision issued by the Board under the authority granted

under paragraph (1) of this subsection and enforce compliance

with any such order;

(3) conduct, from time to time, special studies relating to the

civil service and to other merit systems in the executive branch,

and report to the President and to the Congress as to whether the

public interest in a civil service free of prohibited personnel

practices is being adequately protected; and

(4) review, as provided in subsection (f), rules and

regulations of the Office of Personnel Management.

(b)(1) Any member of the Merit Systems Protection Board, any

administrative law judge appointed by the Board under section 3105

of this title, and any employee of the Board designated by the

Board may administer oaths, examine witnesses, take depositions,

and receive evidence.

(2) Any member of the Board, any administrative law judge

appointed by the Board under section 3105, and any employee of the

Board designated by the Board may, with respect to any individual -

(A) issue subpoenas requiring the attendance and presentation

of testimony of any such individual, and the production of

documentary or other evidence from any place in the United

States, any territory or possession of the United States, the

Commonwealth of Puerto Rico, or the District of Columbia; and

(B) order the taking of depositions from, and responses to

written interrogatories by, any such individual.

(3) Witnesses (whether appearing voluntarily or under subpoena)

shall be paid the same fee and mileage allowances which are paid

subpoenaed witnesses in the courts of the United States.

(c) In the case of contumacy or failure to obey a subpoena issued

under subsection (b)(2)(A) or section 1214(b), upon application by

the Board, the United States district court for the district in

which the person to whom the subpoena is addressed resides or is

served may issue an order requiring such person to appear at any

designated place to testify or to produce documentary or other

evidence. Any failure to obey the order of the court may be

punished by the court as a contempt thereof.

(d) A subpoena referred to in subsection (b)(2)(A) may, in the

case of any individual outside the territorial jurisdiction of any

court of the United States, be served in such manner as the Federal

Rules of Civil Procedure prescribe for service of a subpoena in a

foreign country. To the extent that the courts of the United

States can assert jurisdiction over such individual, the United

States District Court for the District of Columbia shall have the

same jurisdiction to take any action respecting compliance under

this subsection by such individual that such court would have if

such individual were personally within the jurisdiction of such

court.

(e)(1)(A) In any proceeding under subsection (a)(1), any member

of the Board may request from the Director of the Office of

Personnel Management an advisory opinion concerning the

interpretation of any rule, regulation, or other policy directive

promulgated by the Office of Personnel Management.

(B)(i) The Merit Systems Protection Board may, during an

investigation by the Office of Special Counsel or during the

pendency of any proceeding before the Board, issue any order which

may be necessary to protect a witness or other individual from

harassment, except that an agency (other than the Office of Special

Counsel) may not request any such order with regard to an

investigation by the Office of Special Counsel from the Board

during such investigation.

(ii) An order issued under this subparagraph may be enforced in

the same manner as provided for under paragraph (2) with respect to

any order under subsection (a)(2).

(2)(A) In enforcing compliance with any order under subsection

(a)(2), the Board may order that any employee charged with

complying with such order, other than an employee appointed by the

President by and with the advice and consent of the Senate, shall

not be entitled to receive payment for service as an employee

during any period that the order has not been complied with. The

Board shall certify to the Comptroller General of the United States

that such an order has been issued and no payment shall be made out

of the Treasury of the United States for any service specified in

such order.

(B) The Board shall prescribe regulations under which any

employee who is aggrieved by the failure of any other employee to

comply with an order of the Board may petition the Board to

exercise its authority under subparagraph (A).

(3) In carrying out any study under subsection (a)(3), the Board

shall make such inquiries as may be necessary and, unless otherwise

prohibited by law, shall have access to personnel records or

information collected by the Office of Personnel Management and may

require additional reports from other agencies as needed.

(f)(1) At any time after the effective date of any rule or

regulation issued by the Director of the Office of Personnel

Management in carrying out functions under section 1103, the Board

shall review any provision of such rule or regulation -

(A) on its own motion;

(B) on the granting by the Board, in its sole discretion, of

any petition for such review filed with the Board by any

interested person, after consideration of the petition by the

Board; or

(C) on the filing of a written complaint by the Special Counsel

requesting such review.

(2) In reviewing any provision of any rule or regulation pursuant

to this subsection, the Board shall declare such provision -

(A) invalid on its face, if the Board determines that such

provision would, if implemented by any agency, on its face,

require any employee to violate section 2302(b); or

(B) invalidly implemented by any agency, if the Board

determines that such provision, as it has been implemented by the

agency through any personnel action taken by the agency or

through any policy adopted by the agency in conformity with such

provision, has required any employee to violate section 2302(b).

(3) The Director of the Office of Personnel Management, and the

head of any agency implementing any provision of any rule or

regulation under review pursuant to this subsection, shall have the

right to participate in such review.

(4) The Board shall require any agency -

(A) to cease compliance with any provisions of any rule or

regulation which the Board declares under this subsection to be

invalid on its face; and

(B) to correct any invalid implementation by the agency of any

provision of any rule or regulation which the Board declares

under this subsection to have been invalidly implemented by the

agency.

(g) The Board may delegate the performance of any of its

administrative functions under this title to any employee of the

Board.

(h) The Board shall have the authority to prescribe such

regulations as may be necessary for the performance of its

functions. The Board shall not issue advisory opinions. All

regulations of the Board shall be published in the Federal

Register.

(i) Except as provided in section 518 of title 28, relating to

litigation before the Supreme Court, attorneys designated by the

Chairman of the Board may appear for the Board, and represent the

Board, in any civil action brought in connection with any function

carried out by the Board pursuant to this title or as otherwise

authorized by law.

(j) The Chairman of the Board may appoint such personnel as may

be necessary to perform the functions of the Board. Any appointment

made under this subsection shall comply with the provisions of this

title, except that such appointment shall not be subject to the

approval or supervision of the Office of Personnel Management or

the Executive Office of the President (other than approval required

under section 3324 or subchapter VIII of chapter 33).

(k) The Board shall prepare and submit to the President, and, at

the same time, to the appropriate committees of Congress, an annual

budget of the expenses and other items relating to the Board which

shall, as revised, be included as a separate item in the budget

required to be transmitted to the Congress under section 1105 of

title 31.

(l) The Board shall submit to the President, and, at the same

time, to each House of the Congress, any legislative

recommendations of the Board relating to any of its functions under

this title.

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

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

Board designated to hear a case arising under section 1215, may

require payment by the agency involved of reasonable attorney fees

incurred by an employee or applicant for employment if the employee

or applicant is the prevailing party and the Board, administrative

law judge, or other employee (as the case may be) determines that

payment by the agency is warranted in the interest of justice,

including any case in which a prohibited personnel practice was

engaged in by the agency or any case in which the agency's action

was clearly without merit.

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

party of a case arising under section 1215 and the decision is

based on a finding of discrimination prohibited under section

2302(b)(1) of this title, the payment of attorney fees shall be in

accordance with the standards prescribed under section 706(k) of

the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1122, Sec. 1205; amended Pub. L. 97-258, Sec. 3(a)(2), Sept.

13, 1982, 96 Stat. 1063; renumbered Sec. 1204 and amended Pub. L.

101-12, Sec. 3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. L. 102-568,

title V, Sec. 506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L.

103-353, Sec. 2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L.

103-424, Sec. 2, Oct. 29, 1994, 108 Stat. 4361; Pub. L. 103-446,

title XII, Sec. 1203(c)(1), Nov. 2, 1994, 108 Stat. 4690.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec. (d),

are set out in the Appendix to Title 28, Judiciary and Judicial

Procedure.

-MISC2-

PRIOR PROVISIONS

A prior section 1204 was renumbered section 1211(b) of this title

by Pub. L. 101-12, Sec. 3(a)(6). Pub. L. 102-378, Sec. 2(3), Oct.

2, 1992, 106 Stat. 1346, struck out section catchline of prior

section 1204.

AMENDMENTS

1994 - Subsec. (a)(1). Pub. L. 103-446, which directed the

amendment of par. (1) by substituting ''section 4303'' for

''section 4323'' could not be executed because the phrase ''section

4323'' does not appear in text subsequent to the intervening

amendment by Pub. L. 103-353 substituting ''chapter 43'' for

''section 4323''. See below.

Pub. L. 103-353 substituted ''chapter 43'' for ''section 4323''.

Subsec. (m). Pub. L. 103-424 added subsec. (m).

1992 - Subsec. (a)(1). Pub. L. 102-568 substituted ''4323'' for

''2023''.

1989 - Pub. L. 101-12, Sec. 3(a)(7), renumbered section 1205 of

this title as this section.

Pub. L. 101-12, Sec. 3(a)(7)(A), struck out ''and Special

Counsel'' after ''Board'' in section catchline.

Subsec. (a)(4). Pub. L. 101-12, Sec. 3(a)(7)(A), (C), substituted

''subsection (f)'' for ''subsection (e) of this section''.

Subsec. (b)(1). Pub. L. 101-12, Sec. 3(a)(7)(A), struck out ''the

Special Counsel,'' after ''Board,''.

Subsec. (b)(2). Pub. L. 101-12, Sec. 3(a)(7)(D), amended par. (2)

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

member of the Board, the Special Counsel, and any administrative

law judge appointed by the Board under section 3105 of this title

may -

''(A) issue subpenas requiring the attendance and testimony of

witnesses and the production of documentary or other evidence

from any place in the United States or any territory or

possession thereof, the Commonwealth of Puerto Rico, or the

District of Columbia; and

''(B) order the taking of depositions and order responses to

written interrogatories.''

Subsec. (b)(3). Pub. L. 101-12, Sec. 3(a)(7)(B), substituted

''subpoena'' for ''subpena'' and ''subpoenaed'' for ''subpenaed''.

Subsec. (c). Pub. L. 101-12, Sec. 3(a)(7)(B), (E), substituted

''subpoena'' for ''subpena'' in two places, ''(b)(2)(A) or section

1214(b), upon application by the Board'' for ''(b)(2) of this

section'', and ''for the district'' for ''for the judicial

district''.

Subsec. (d). Pub. L. 101-12, Sec. 3(a)(7)(F), added subsec. (d).

Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated former

subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(1). Pub. L. 101-12, Sec. 3(a)(7)(A), (G)(i),

designated existing provisions as subpar. (A), struck out ''of this

section'' after ''subsection (a)(1)'', and added subpar. (B).

Subsec. (e)(2). Pub. L. 101-12, Sec. 3(a)(7)(G)(ii), designated

existing provisions as subpar. (A), struck out ''of this section''

after ''subsection (a)(2)'', and added subpar. (B).

Subsec. (e)(3). Pub. L. 101-12, Sec. 3(a)(7)(A), (G)(iii), struck

out ''of this section'' after ''subsection (a)(3)'' and inserted

''of Personnel Management'' after ''Office''.

Subsec. (f). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated former

subsec. (e) as (f). Former subsec. (f) redesignated (g).

Subsec. (f)(1). Pub. L. 101-12, Sec. 3(a)(7)(H)(i), inserted ''of

the Office of Personnel Management'' after ''Director'' and struck

out ''of this title'' after ''section 1103''.

Subsec. (f)(2). Pub. L. 101-12, Sec. 3(a)(7)(H)(ii), inserted

comma after ''subsection'' and in subpars. (A) and (B) struck out

''of this title'' after ''section 2302(b)''.

Subsec. (f)(3), (4). Pub. L. 101-12, Sec. 3(a)(7)(H)(iii), struck

out ''(A)'' before ''The Director'', struck out subpar. (B) which

provided that any review conducted by the Board be limited to

determining the validity on its face of the provision under review

and whether the provision under review has been validly

implemented, and redesignated former subpar. (C) and cls. (i) and

(ii) of former subpar. (C) as par. (4) and subpars. (A) and (B),

respectively, of par. (4).

Subsecs. (g) to (i). Pub. L. 101-12, Sec. 3(a)(7)(F),

redesignated former subsecs. (f) to (h) as (g) to (i),

respectively. Former subsec. (i) redesignated (j).

Subsec. (j). Pub. L. 101-12, Sec. 3(a)(7)(F), (I), redesignated

former subsec. (i) as (j) and substituted ''chapter 33'' for

''chapter 33 of this title''. Former subsec. (j) redesignated (k).

Subsecs. (k), (l). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated

former subsecs. (j) and (k) as (k) and (l), respectively.

1982 - Subsec. (j). Pub. L. 97-258 substituted ''section 1105 of

title 31'' for ''section 201 of the Budget and Accounting Act, 1921

(31 U.S.C. 11)''.

EFFECTIVE DATE OF 1994 AMENDMENTS

Section 14 of Pub. L. 103-424 provided that: ''The provisions of

this Act (amending this section and sections 1211, 1212, 1214,

1218, 1221, 2105, 2302, 4313, 7121, and 8348 of this title,

enacting provisions set out as notes under sections 1212 and 1214

of this title and section 1441a of Title 12, Banks and Banking, and

amending provisions set out as a note under section 5509 of this

title) and the amendments made by this Act shall be effective on

and after the date of the enactment of this Act (Oct. 29, 1994).''

Amendment by Pub. L. 103-353 effective with respect to

reemployments initiated on or after the first day after the 60-day

period beginning Oct. 13, 1994, with transition rules, see section

8 of Pub. L. 103-353, set out as an Effective Date note under

section 4301 of Title 38, Veterans' Benefits.

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.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1221 of this title;

title 49 section 40122.

-CITE-

5 USC Sec. 1205 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1205. Transmittal of information to Congress

-STATUTE-

Notwithstanding any other provision of law or any rule,

regulation or policy directive, any member of the Board, or any

employee of the Board designated by the Board, may transmit to the

Congress on the request of any committee or subcommittee thereof,

by report, testimony, or otherwise, information and views on

functions, responsibilities, or other matters relating to the

Board, without review, clearance, or approval by any other

administrative authority.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1131, Sec. 1209(a); renumbered Sec. 1205 and amended Pub. L.

101-12, Sec. 3(a)(9), Apr. 10, 1989, 103 Stat. 18.)

-MISC1-

PRIOR PROVISIONS

A prior section 1205 was renumbered section 1204 of this title.

AMENDMENTS

1989 - Pub. L. 101-12 renumbered section 1209(a) of this title as

this section and inserted section catchline.

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.

-CITE-

5 USC Sec. 1206 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

Sec. 1206. Annual report

-STATUTE-

The Board shall submit an annual report to the President and the

Congress on its activities, which shall include a description of

significant actions taken by the Board to carry out its functions

under this title. The report shall also review the significant

actions of the Office of Personnel Management, including an

analysis of whether the actions of the Office of Personnel

Management are in accord with merit system principles and free from

prohibited personnel practices.

-SOURCE-

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92

Stat. 1131, Sec. 1209(b); renumbered Sec. 1206 and amended Pub. L.

101-12, Sec. 3(a)(10), Apr. 10, 1989, 103 Stat. 18.)

-MISC1-

PRIOR PROVISIONS

A prior section 1206, added Pub. L. 95-454, title II, Sec.

202(a), Oct. 13, 1978, 92 Stat. 1125, which related to authority

and responsibilities of Special Counsel, was repealed by Pub. L.

101-12, Sec. 3(a)(8), 11, Apr. 10, 1989, 103 Stat. 18, effective 90

days following Apr. 10, 1989. See section 1212 of this title.

AMENDMENTS

1989 - Pub. L. 101-12 renumbered section 1209(b) of this title as

this section and inserted section catchline.

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.

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions in first

sentence of this section relating to annual reports to Congress

(formerly 5 U.S.C. 1209(b)), 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 176 of House Document No. 103-7.

-CITE-

5 USC Sec. 1207, 1208 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

(Sec. 1207, 1208. Repealed. Pub. L. 101-12, Sec. 3(a)(8), Apr. 10,

1989, 103 Stat. 18)

-MISC1-

Section 1207, added Pub. L. 95-454, title II, Sec. 202(a), Oct.

13, 1978, 92 Stat. 1130, provided for hearings and decisions on

complaints filed by Special Counsel. See section 1215(a)(2) to (5)

of this title.

Section 1208, added Pub. L. 95-454, title II, Sec. 202(a), Oct.

13, 1978, 92 Stat. 1130, related to stays of certain personnel

actions. See section 1214(b) of this title.

EFFECTIVE DATE OF REPEAL

Repeal of sections effective 90 days following Apr. 10, 1989, see

section 11 of Pub. L. 101-12, set out as an Effective Date of 1989

Amendment note under section 1201 of this title.

-CITE-

5 USC Sec. 1209 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER I - MERIT SYSTEMS PROTECTION BOARD

-HEAD-

(Sec. 1209. Renumbered Sec. 1205 and 1206)

-COD-

CODIFICATION

Subsecs. (a) and (b) of this section were renumbered as sections

1205 and 1206, respectively, of this title by Pub. L. 101-12, Sec.

3(a)(9), (10). Pub. L. 102-378, Sec. 2(2), Oct. 2, 1992, 106 Stat.

1346, struck out section catchline of prior section 1209.

-CITE-

5 USC SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

.

-HEAD-

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 1221, 4505a, 5754,

5755, 7121 of this title.

-CITE-

5 USC Sec. 1211 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1211. Establishment

-STATUTE-

(a) There is established the Office of Special Counsel, which

shall be headed by the Special Counsel. The Office shall have an

official seal which shall be judicially noticed. The Office shall

have its principal office in the District of Columbia and shall

have field offices in other appropriate locations.

(b) The Special Counsel shall be appointed by the President, by

and with the advice and consent of the Senate, for a term of 5

years. The Special Counsel may continue to serve beyond the

expiration of the term until a successor is appointed and has

qualified, except that the Special Counsel may not continue to

serve for more than one year after the date on which the term of

the Special Counsel would otherwise expire under this subsection.

The Special Counsel shall be an attorney who, by demonstrated

ability, background, training, or experience, is especially

qualified to carry out the functions of the position. A Special

Counsel appointed to fill a vacancy occurring before the end of a

term of office of the Special Counsel's predecessor serves for the

remainder of the term. The Special Counsel may be removed by the

President only for inefficiency, neglect of duty, or malfeasance in

office. The Special Counsel may not hold another office or

position in the Government of the United States, except as

otherwise provided by law or at the direction of the President.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(11), Apr. 10, 1989, 103 Stat. 19,

Sec. 1211(a), and Pub. L. 95-454, title II, Sec. 202(a), Oct. 13,

1978, 92 Stat. 1122, Sec. 1204; renumbered Sec. 1211(b) and amended

Pub. L. 101-12, Sec. 3(a)(6), (12), Apr. 10, 1989, 103 Stat. 17,

19; Pub. L. 103-424, Sec. 3(a), Oct. 29, 1994, 108 Stat. 4361.)

-MISC1-

AMENDMENTS

1994 - Subsec. (b). Pub. L. 101-424 inserted after first sentence

''The Special Counsel may continue to serve beyond the expiration

of the term until a successor is appointed and has qualified,

except that the Special Counsel may not continue to serve for more

than one year after the date on which the term of the Special

Counsel would otherwise expire under this subsection.''

1989 - Subsec. (b). Pub. L. 101-12, Sec. 3(a)(6), (12),

renumbered section 1204 of this title as subsec. (b) of this

section, substituted ''Special Counsel shall be appointed by the

President'' for ''Special Counsel of the Merit Systems Protection

Board shall be appointed by the President from attorneys'',

substituted ''The Special Counsel shall be an attorney who, by

demonstrated ability, background, training, or experience, is

especially qualified to carry out the functions of the position. A

Special Counsel appointed to fill a vacancy occurring before the

end of a term of office of the Special Counsel's predecessor serves

for the remainder of the term.'' for ''A Special Counsel appointed

to fill a vacancy occurring before the end of a term of office of

his predecessor serves for the remainder of the term.'', and

inserted at end ''The Special Counsel may not hold another office

or position in the Government of the United States, except as

otherwise provided by law or at the direction of the President.''

EFFECTIVE DATE

Subchapter 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.

TRANSFER OF FUNDS

Section 8(c) of Pub. L. 101-12 provided that: ''The personnel,

assets, liabilities, contracts, property, records, and unexpended

balances of appropriations, authorizations, allocations, and other

funds employed, held, used, arising from, available or to be made

available to the Special Counsel of the Merit Systems Protection

Board are, subject to section 1531 of title 31, United States Code,

transferred to the Special Counsel referred to in section 1211 of

title 5, United States Code (as added by section 3(a) of this Act),

for appropriate allocation.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 38 section 4324; title 49

section 40122.

-CITE-

5 USC Sec. 1212 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1212. Powers and functions of the Office of Special Counsel

-STATUTE-

(a) The Office of Special Counsel shall -

(1) in accordance with section 1214(a) and other applicable

provisions of this subchapter, protect employees, former

employees, and applicants for employment from prohibited

personnel practices;

(2) receive and investigate allegations of prohibited personnel

practices, and, where appropriate -

(A) bring petitions for stays, and petitions for corrective

action, under section 1214; and

(B) file a complaint or make recommendations for disciplinary

action under section 1215;

(3) receive, review, and, where appropriate, forward to the

Attorney General or an agency head under section 1213,

disclosures of violations of any law, rule, or regulation, or

gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health

or safety;

(4) review rules and regulations issued by the Director of the

Office of Personnel Management in carrying out functions under

section 1103 and, where the Special Counsel finds that any such

rule or regulation would, on its face or as implemented, require

the commission of a prohibited personnel practice, file a written

complaint with the Board; and

(5) investigate and, where appropriate, bring actions

concerning allegations of violations of other laws within the

jurisdiction of the Office of Special Counsel (as referred to in

section 1216).

(b)(1) The Special Counsel and any employee of the Office of

Special Counsel designated by the Special Counsel may administer

oaths, examine witnesses, take depositions, and receive evidence.

(2) The Special Counsel may -

(A) issue subpoenas; and

(B) order the taking of depositions and order responses to

written interrogatories;

in the same manner as provided under section 1204.

(3)(A) In the case of contumacy or failure to obey a subpoena

issued under paragraph (2)(A), the Special Counsel may apply to the

Merit Systems Protection Board to enforce the subpoena in court

pursuant to section 1204(c).

(B) A subpoena under paragraph (2)(A) may, in the case of any

individual outside the territorial jurisdiction of any court of the

United States, be served in the manner referred to in subsection

(d) of section 1204, and the United States District Court for the

District of Columbia may, with respect to any such individual,

compel compliance in accordance with such subsection.

(4) Witnesses (whether appearing voluntarily or under subpoena)

shall be paid the same fee and mileage allowances which are paid

subpoenaed witnesses in the courts of the United States.

(c)(1) Except as provided in paragraph (2), the Special Counsel

may as a matter of right intervene or otherwise participate in any

proceeding before the Merit Systems Protection Board, except that

the Special Counsel shall comply with the rules of the Board.

(2) The Special Counsel may not intervene in an action brought by

an individual under section 1221, or in an appeal brought by an

individual under section 7701, without the consent of such

individual.

(d)(1) The Special Counsel may appoint the legal, administrative,

and support personnel necessary to perform the functions of the

Special Counsel.

(2) Any appointment made under this subsection shall be made in

accordance with the provisions of this title, except that such

appointment shall not be subject to the approval or supervision of

the Office of Personnel Management or the Executive Office of the

President (other than approval required under section 3324 or

subchapter VIII of chapter 33).

(e) The Special Counsel may prescribe such regulations as may be

necessary to perform the functions of the Special Counsel. Such

regulations shall be published in the Federal Register.

(f) The Special Counsel may not issue any advisory opinion

concerning any law, rule, or regulation (other than an advisory

opinion concerning chapter 15 or subchapter III of chapter 73).

(g)(1) The Special Counsel may not respond to any inquiry or

disclose any information from or about any person making an

allegation under section 1214(a), except in accordance with the

provisions of section 552a of title 5, United States Code, or as

required by any other applicable Federal law.

(2) Notwithstanding the exception under paragraph (1), the

Special Counsel may not respond to any inquiry concerning an

evaluation of the work performance, ability, aptitude, general

qualifications, character, loyalty, or suitability for any

personnel action of any person described in paragraph (1) -

(A) unless the consent of the individual as to whom the

information pertains is obtained in advance; or

(B) except upon request of an agency which requires such

information in order to make a determination concerning an

individual's having access to the information unauthorized

disclosure of which could be expected to cause exceptionally

grave damage to the national security.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 19;

amended Pub. L. 103-424, Sec. 3(b), Oct. 29, 1994, 108 Stat. 4362.)

-MISC1-

AMENDMENTS

1994 - Subsec. (g)(1). Pub. L. 103-424, Sec. 3(b)(1) substituted

''disclose any information from or about'' for ''provide

information concerning''.

Subsec. (g)(2). Pub. L. 103-424, Sec. 3(b)(2), substituted ''an

evaluation of the work performance, ability, aptitude, general

qualifications, character, loyalty, or suitability for any

personnel action of any'' for ''a matter described in subparagraph

(A) or (B) of section 2302(b)(2) in connection with a''.

POLICY STATEMENT REGARDING IMPLEMENTATION OF WHISTLEBLOWER

PROTECTION ACT

Section 12(a) of Pub. L. 103-424 provided that: ''No later than 6

months after the date of enactment of this Act (Oct. 29, 1994), the

Special Counsel shall issue a policy statement regarding the

implementation of the Whistleblower Protection Act of 1989 (see

Short Title of 1989 Amendment note set out under section 1201 of

this title). Such policy statement shall be made available to each

person alleging a prohibited personnel practice described under

section 2302(b)(8) of title 5, United States Code, and shall

include detailed guidelines identifying specific categories of

information that may (or may not) be communicated to agency

officials for an investigative purpose, or for the purpose of

obtaining corrective action under section 1214 of title 5, United

States Code, or disciplinary action under section 1215 of such

title, the circumstances under which such information is likely to

be disclosed, and whether or not the consent of any person is

required in advance of any such communication.''

ANNUAL SURVEY OF INDIVIDUALS SEEKING ASSISTANCE

Section 13 of Pub. L. 103-424 provided that:

''(a) In General. - The Office of Special Counsel shall, after

consulting with the Office of Policy and Evaluation of the Merit

Systems Protection Board, conduct an annual survey of all

individuals who contact the Office of Special Counsel for

assistance. The survey shall -

''(1) determine if the individual seeking assistance was fully

apprised of their rights;

''(2) determine whether the individual was successful either at

the Office of Special Counsel or the Merit Systems Protection

Board; and

''(3) determine if the individual, whether successful or not,

was satisfied with the treatment received from the Office of

Special Counsel.

''(b) Report. - The results of the survey conducted under

subsection (a) shall be published in the annual report of the

Office of Special Counsel.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2105 of this title; title

49 section 40122.

-CITE-

5 USC Sec. 1213 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1213. Provisions relating to disclosures of violations of law,

gross mismanagement, and certain other matters

-STATUTE-

(a) This section applies with respect to -

(1) any disclosure of information by an employee, former

employee, or applicant for employment which the employee, former

employee, or applicant reasonably believes evidences -

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

(B) gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public

health or safety;

if such disclosure is not specifically prohibited by law and if

such information is not specifically required by Executive order

to be kept secret in the interest of national defense or the

conduct of foreign affairs; and

(2) any disclosure by an employee, former employee, or

applicant for employment to the Special Counsel or to the

Inspector General of an agency or another employee designated by

the head of the agency to receive such disclosures of information

which the employee, former employee, or applicant reasonably

believes evidences -

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

(B) gross mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public

health or safety.

(b) Whenever the Special Counsel receives information of a type

described in subsection (a) of this section, the Special Counsel

shall review such information and, within 15 days after receiving

the information, determine whether there is a substantial

likelihood that the information discloses a violation of any law,

rule, or regulation, or gross mismanagement, gross waste of funds,

abuse of authority, or substantial and specific danger to public

health and safety.

(c)(1) Subject to paragraph (2), if the Special Counsel makes a

positive determination under subsection (b) of this section, the

Special Counsel shall promptly transmit the information with

respect to which the determination was made to the appropriate

agency head and require that the agency head -

(A) conduct an investigation with respect to the information

and any related matters transmitted by the Special Counsel to the

agency head; and

(B) submit a written report setting forth the findings of the

agency head within 60 days after the date on which the

information is transmitted to the agency head or within any

longer period of time agreed to in writing by the Special

Counsel.

(2) The Special Counsel may require an agency head to conduct an

investigation and submit a written report under paragraph (1) only

if the information was transmitted to the Special Counsel by -

(A) an employee, former employee, or applicant for employment

in the agency which the information concerns; or

(B) an employee who obtained the information in connection with

the performance of the employee's duties and responsibilities.

(d) Any report required under subsection (c) shall be reviewed

and signed by the head of the agency and shall include -

(1) a summary of the information with respect to which the

investigation was initiated;

(2) a description of the conduct of the investigation;

(3) a summary of any evidence obtained from the investigation;

(4) a listing of any violation or apparent violation of any

law, rule, or regulation; and

(5) a description of any action taken or planned as a result of

the investigation, such as -

(A) changes in agency rules, regulations, or practices;

(B) the restoration of any aggrieved employee;

(C) disciplinary action against any employee; and

(D) referral to the Attorney General of any evidence of a

criminal violation.

(e)(1) Any such report shall be submitted to the Special Counsel,

and the Special Counsel shall transmit a copy to the complainant,

except as provided under subsection (f) of this section. The

complainant may submit comments to the Special Counsel on the

agency report within 15 days of having received a copy of the

report.

(2) Upon receipt of any report of the head of an agency required

under subsection (c) of this section, the Special Counsel shall

review the report and determine whether -

(A) the findings of the head of the agency appear reasonable;

and

(B) the report of the agency under subsection (c)(1) of this

section contains the information required under subsection (d) of

this section.

(3) The Special Counsel shall transmit any agency report received

pursuant to subsection (c) of this section, any comments provided

by the complainant pursuant to subsection (e)(1), and any

appropriate comments or recommendations by the Special Counsel to

the President and the congressional committees with jurisdiction

over the agency which the disclosure involves.

(4) Whenever the Special Counsel does not receive the report of

the agency within the time prescribed in subsection (c)(2) of this

section, the Special Counsel shall transmit a copy of the

information which was transmitted to the agency head to the

President and the congressional committees with jurisdiction over

the agency which the disclosure involves together with a statement

noting the failure of the head of the agency to file the required

report.

(f) In any case in which evidence of a criminal violation

obtained by an agency in an investigation under subsection (c) of

this section is referred to the Attorney General -

(1) the report shall not be transmitted to the complainant; and

(2) the agency shall notify the Office of Personnel Management

and the Office of Management and Budget of the referral.

(g)(1) If the Special Counsel receives information of a type

described in subsection (a) from an individual other than an

individual described in subparagraph (A) or (B) of subsection

(c)(2), the Special Counsel may transmit the information to the

head of the agency which the information concerns. The head of

such agency shall, within a reasonable time after the information

is transmitted, inform the Special Counsel in writing of what

action has been or is being taken and when such action shall be

completed. The Special Counsel shall inform the individual of the

report of the agency head.

(2) If the Special Counsel receives information of a type

described in subsection (a) from an individual described in

subparagraph (A) or (B) of subsection (c)(2), but does not make a

positive determination under subsection (b), the Special Counsel

may transmit the information to the head of the agency which the

information concerns, except that the information may not be

transmitted to the head of the agency without the consent of the

individual. The head of such agency shall, within a reasonable

time after the information is transmitted, inform the Special

Counsel in writing of what action has been or is being taken and

when such action will be completed. The Special Counsel shall

inform the individual of the report of the agency head.

(3) If the Special Counsel does not transmit the information to

the head of the agency under paragraph (2), the Special Counsel

shall inform the individual of -

(A) the reasons why the disclosure may not be further acted on

under this chapter; and

(B) other offices available for receiving disclosures, should

the individual wish to pursue the matter further.

(h) The identity of any individual who makes a disclosure

described in subsection (a) may not be disclosed by the Special

Counsel without such individual's consent unless the Special

Counsel determines that the disclosure of the individual's identity

is necessary because of an imminent danger to public health or

safety or imminent violation of any criminal law.

(i) Except as specifically authorized under this section, the

provisions of this section shall not be considered to authorize

disclosure of any information by any agency or any person which is

-

(1) specifically prohibited from disclosure by any other

provision of law; or

(2) specifically required by Executive order to be kept secret

in the interest of national defense or the conduct of foreign

affairs.

(j) With respect to any disclosure of information described in

subsection (a) which involves foreign intelligence or

counterintelligence information, if the disclosure is specifically

prohibited by law or by Executive order, the Special Counsel shall

transmit such information to the National Security Advisor, the

Permanent Select Committee on Intelligence of the House of

Representatives, and the Select Committee on Intelligence of the

Senate.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 21;

amended Pub. L. 104-316, title I, Sec. 103(a), Oct. 19, 1996, 110

Stat. 3828; Pub. L. 107-304, Sec. 3, Nov. 27, 2002, 116 Stat.

2364.)

-MISC1-

AMENDMENTS

2002 - Subsec. (g)(1). Pub. L. 107-304, Sec. 3(1), struck out at

end ''If the Special Counsel does not transmit the information to

the head of the agency, the Special Counsel shall return any

documents and other matter provided by the individual who made the

disclosure.''

Subsec. (g)(3). Pub. L. 107-304, Sec. 3(2), added par. (3) and

struck out former par. (3) which read as follows: ''If the Special

Counsel does not transmit the information to the head of the agency

under paragraph (2), the Special Counsel shall -

''(A) return any documents and other matter provided by the

individual who made the disclosure; and

''(B) inform the individual of -

''(i) the reasons why the disclosure may not be further acted

on under this chapter; and

''(ii) other offices available for receiving disclosures,

should the individual wish to pursue the matter further.''

1996 - Subsec. (e)(3). Pub. L. 104-316, Sec. 103(a)(1),

substituted ''President and'' for ''President,'' and struck out '',

and the Comptroller General'' before period at end.

Subsec. (e)(4). Pub. L. 104-316, Sec. 103(a)(2), substituted

''President and'' for ''President,'' and struck out '', and the

Comptroller General'' before ''together with a''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1219, 2105 of this

title; title 49 section 40122.

-CITE-

5 USC Sec. 1214 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1214. Investigation of prohibited personnel practices;

corrective action

-STATUTE-

(a)(1)(A) The Special Counsel shall receive any allegation of a

prohibited personnel practice and shall investigate the allegation

to the extent necessary to determine whether there are reasonable

grounds to believe that a prohibited personnel practice has

occurred, exists, or is to be taken.

(B) Within 15 days after the date of receiving an allegation of a

prohibited personnel practice under paragraph (1), the Special

Counsel shall provide written notice to the person who made the

allegation that -

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

and

(ii) shall include the name of a person at the Office of

Special Counsel who shall serve as a contact with the person

making the allegation.

(C) Unless an investigation is terminated under paragraph (2),

the Special Counsel shall -

(i) within 90 days after notice is provided under subparagraph

(B), notify the person who made the allegation of the status of

the investigation and any action taken by the Office of the

Special Counsel since the filing of the allegation;

(ii) notify such person of the status of the investigation and

any action taken by the Office of the Special Counsel since the

last notice, at least every 60 days after notice is given under

clause (i); and

(iii) notify such person of the status of the investigation and

any action taken by the Special Counsel at such time as

determined appropriate by the Special Counsel.

(D) No later than 10 days before the Special Counsel terminates

any investigation of a prohibited personnel practice, the Special

Counsel shall provide a written status report to the person who

made the allegation of the proposed findings of fact and legal

conclusions. The person may submit written comments about the

report to the Special Counsel. The Special Counsel shall not be

required to provide a subsequent written status report under this

subparagraph after the submission of such written comments.

(2)(A) If the Special Counsel terminates any investigation under

paragraph (1), the Special Counsel shall prepare and transmit to

any person on whose allegation the investigation was initiated a

written statement notifying the person of -

(i) the termination of the investigation;

(ii) a summary of relevant facts ascertained by the Special

Counsel, including the facts that support, and the facts that do

not support, the allegations of such person;

(iii) the reasons for terminating the investigation; and

(iv) a response to any comments submitted under paragraph

(1)(D).

(B) A written statement under subparagraph (A) may not be

admissible as evidence in any judicial or administrative

proceeding, without the consent of the person who received such

statement under subparagraph (A).

(3) Except in a case in which an employee, former employee, or

applicant for employment has the right to appeal directly to the

Merit Systems Protection Board under any law, rule, or regulation,

any such employee, former employee, or applicant shall seek

corrective action from the Special Counsel before seeking

corrective action from the Board. An employee, former employee, or

applicant for employment may seek corrective action from the Board

under section 1221, if such employee, former employee, or applicant

seeks corrective action for a prohibited personnel practice

described in section 2302(b)(8) from the Special Counsel and -

(A)(i) the Special Counsel notifies such employee, former

employee, or applicant that an investigation concerning such

employee, former employee, or applicant has been terminated; and

(ii) no more than 60 days have elapsed since notification was

provided to such employee, former employee, or applicant for

employment that such investigation was terminated; or

(B) 120 days after seeking corrective action from the Special

Counsel, such employee, former employee, or applicant has not

been notified by the Special Counsel that the Special Counsel

shall seek corrective action on behalf of such employee, former

employee, or applicant.

(4) If an employee, former employee, or applicant seeks a

corrective action from the Board under section 1221, pursuant to

the provisions of paragraph (3)(B), the Special Counsel may

continue to seek corrective action personal to such employee,

former employee, or applicant only with the consent of such

employee, former employee, or applicant.

(5) In addition to any authority granted under paragraph (1), the

Special Counsel may, in the absence of an allegation, conduct an

investigation for the purpose of determining whether there are

reasonable grounds to believe that a prohibited personnel practice

(or a pattern of prohibited personnel practices) has occurred,

exists, or is to be taken.

(b)(1)(A)(i) The Special Counsel may request any member of the

Merit Systems Protection Board to order a stay of any personnel

action for 45 days if the Special Counsel determines that there are

reasonable grounds to believe that the personnel action was taken,

or is to be taken, as a result of a prohibited personnel practice.

(ii) Any member of the Board requested by the Special Counsel to

order a stay under clause (i) shall order such stay unless the

member determines that, under the facts and circumstances involved,

such a stay would not be appropriate.

(iii) Unless denied under clause (ii), any stay under this

subparagraph shall be granted within 3 calendar days (excluding

Saturdays, Sundays, and legal holidays) after the date of the

request for the stay by the Special Counsel.

(B) The Board may extend the period of any stay granted under

subparagraph (A) for any period which the Board considers

appropriate.

(C) The Board shall allow any agency which is the subject of a

stay to comment to the Board on any extension of stay proposed

under subparagraph (B).

(D) A stay may be terminated by the Board at any time, except

that a stay may not be terminated by the Board -

(i) on its own motion or on the motion of an agency, unless

notice and opportunity for oral or written comments are first

provided to the Special Counsel and the individual on whose

behalf the stay was ordered; or

(ii) on motion of the Special Counsel, unless notice and

opportunity for oral or written comments are first provided to

the individual on whose behalf the stay was ordered.

(2)(A)(i) Except as provided under clause (ii), no later than 240

days after the date of receiving an allegation of a prohibited

personnel practice under paragraph (1), the Special Counsel shall

make a determination whether there are reasonable grounds to

believe that a prohibited personnel practice has occurred, exists,

or is to be taken.

(ii) If the Special Counsel is unable to make the required

determination within the 240-day period specified under clause (i)

and the person submitting the allegation of a prohibited personnel

practice agrees to an extension of time, the determination shall be

made within such additional period of time as shall be agreed upon

between the Special Counsel and the person submitting the

allegation.

(B) If, in connection with any investigation, the Special Counsel

determines that there are reasonable grounds to believe that a

prohibited personnel practice has occurred, exists, or is to be

taken which requires corrective action, the Special Counsel shall

report the determination together with any findings or

recommendations to the Board, the agency involved and to the Office

of Personnel Management, and may report such determination,

findings and recommendations to the President. The Special Counsel

may include in the report recommendations for corrective action to

be taken.

(C) If, after a reasonable period of time, the agency does not

act to correct the prohibited personnel practice, the Special

Counsel may petition the Board for corrective action.

(D) If the Special Counsel finds, in consultation with the

individual subject to the prohibited personnel practice, that the

agency has acted to correct the prohibited personnel practice, the

Special Counsel shall file such finding with the Board, together

with any written comments which the individual may provide.

(E) A determination by the Special Counsel under this paragraph

shall not be cited or referred to in any proceeding under this

paragraph or any other administrative or judicial proceeding for

any purpose, without the consent of the person submitting the

allegation of a prohibited personnel practice.

(3) Whenever the Special Counsel petitions the Board for

corrective action, the Board shall provide an opportunity for -

(A) oral or written comments by the Special Counsel, the agency

involved, and the Office of Personnel Management; and

(B) written comments by any individual who alleges to be the

subject of the prohibited personnel practice.

(4)(A) The Board shall order such corrective action as the Board

considers appropriate, if the Board determines that the Special

Counsel has demonstrated that a prohibited personnel practice,

other than one described in section 2302(b)(8), has occurred,

exists, or is to be taken.

(B)(i) Subject to the provisions of clause (ii), in any case

involving an alleged prohibited personnel practice as described

under section 2302(b)(8), the Board shall order such corrective

action as the Board considers appropriate if the Special Counsel

has demonstrated that a disclosure described under section

2302(b)(8) was a contributing factor in the personnel action which

was taken or is to be taken against the individual.

(ii) Corrective action under clause (i) may not be ordered if the

agency demonstrates by clear and convincing evidence that it would

have taken the same personnel action in the absence of such

disclosure.

(c)(1) Judicial review of any final order or decision of the

Board under this section may be obtained by any employee, former

employee, or applicant for employment adversely affected by such

order or decision.

(2) A petition for review under this subsection shall be filed

with such court, and within such time, as provided for under

section 7703(b).

(d)(1) If, in connection with any investigation under this

subchapter, the Special Counsel determines that there is reasonable

cause to believe that a criminal violation has occurred, the

Special Counsel shall report the determination to the Attorney

General and to the head of the agency involved, and shall submit a

copy of the report to the Director of the Office of Personnel

Management and the Director of the Office of Management and Budget.

(2) In any case in which the Special Counsel determines that

there are reasonable grounds to believe that a prohibited personnel

practice has occurred, exists, or is to be taken, the Special

Counsel shall proceed with any investigation or proceeding unless -

(A) the alleged violation has been reported to the Attorney

General; and

(B) the Attorney General is pursuing an investigation, in which

case the Special Counsel, after consultation with the Attorney

General, has discretion as to whether to proceed.

(e) If, in connection with any investigation under this

subchapter, the Special Counsel determines that there is reasonable

cause to believe that any violation of any law, rule, or regulation

has occurred other than one referred to in subsection (b) or (d),

the Special Counsel shall report such violation to the head of the

agency involved. The Special Counsel shall require, within 30 days

after the receipt of the report by the agency, a certification by

the head of the agency which states -

(1) that the head of the agency has personally reviewed the

report; and

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

will be completed.

(f) During any investigation initiated under this subchapter, no

disciplinary action shall be taken against any employee for any

alleged prohibited activity under investigation or for any related

activity without the approval of the Special Counsel.

(g) If the Board orders corrective action under this section,

such corrective action may include -

(1) that the individual be placed, as nearly as possible, in

the position the individual would have been in had the prohibited

personnel practice not occurred; and

(2) reimbursement for attorney's fees, back pay and related

benefits, medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 23;

amended Pub. L. 103-424, Sec. 3(c), (d), 8(a), Oct. 29, 1994, 108

Stat. 4362, 4364.)

-MISC1-

AMENDMENTS

1994 - Subsec. (a)(1)(D). Pub. L. 103-424, Sec. 3(c)(1), added

subpar. (D).

Subsec. (a)(2)(A)(iv). Pub. L. 103-424, Sec. 3(c)(2), added cl.

(iv).

Subsec. (b)(2). Pub. L. 103-424, Sec. 3(d), added subpars. (A)

and (E) and redesignated former subpars. (A) to (C) as (B) to (D),

respectively.

Subsec. (g). Pub. L. 103-424, Sec. 8(a), added subsec. (g).

TERMINATION STATEMENT

Section 12(b) of Pub. L. 103-424 provided that: ''The Special

Counsel shall include in any letter terminating an investigation

under section 1214(a)(2) of title 5, United States Code, the name

and telephone number of an employee of the Special Counsel who is

available to respond to reasonable questions from the person

regarding the investigation or review conducted by the Special

Counsel, the relevant facts ascertained by the Special Counsel, and

the law applicable to the person's allegations.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1204, 1212, 1216, 1218,

1219, 1221, 2105, 2303, 7121 of this title; title 22 section 4139;

title 49 section 40122.

-CITE-

5 USC Sec. 1215 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1215. Disciplinary action

-STATUTE-

(a)(1) Except as provided in subsection (b), if the Special

Counsel determines that disciplinary action should be taken against

any employee for having -

(A) committed a prohibited personnel practice,

(B) violated the provisions of any law, rule, or regulation, or

engaged in any other conduct within the jurisdiction of the

Special Counsel as described in section 1216, or

(C) knowingly and willfully refused or failed to comply with an

order of the Merit Systems Protection Board,

the Special Counsel shall prepare a written complaint against the

employee containing the Special Counsel's determination, together

with a statement of supporting facts, and present the complaint and

statement to the employee and the Board, in accordance with this

subsection.

(2) Any employee against whom a complaint has been presented to

the Merit Systems Protection Board under paragraph (1) is entitled

to -

(A) a reasonable time to answer orally and in writing, and to

furnish affidavits and other documentary evidence in support of

the answer;

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

(C) a hearing before the Board or an administrative law judge

appointed under section 3105 and designated by the Board;

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

(C); and

(E) a written decision and reasons therefor at the earliest

practicable date, including a copy of any final order imposing

disciplinary action.

(3) A final order of the Board may impose disciplinary action

consisting of removal, reduction in grade, debarment from Federal

employment for a period not to exceed 5 years, suspension,

reprimand, or an assessment of a civil penalty not to exceed

$1,000.

(4) There may be no administrative appeal from an order of the

Board. An employee subject to a final order imposing disciplinary

action under this subsection may obtain judicial review of the

order by filing a petition therefor with such court, and within

such time, as provided for under section 7703(b).

(5) In the case of any State or local officer or employee under

chapter 15, the Board shall consider the case in accordance with

the provisions of such chapter.

(b) In the case of an employee in a confidential, policy-making,

policy-determining, or policy-advocating position appointed by the

President, by and with the advice and consent of the Senate (other

than an individual in the Foreign Service of the United States),

the complaint and statement referred to in subsection (a)(1),

together with any response of the employee, shall be presented to

the President for appropriate action in lieu of being presented

under subsection (a).

(c)(1) In the case of members of the uniformed services and

individuals employed by any person under contract with an agency to

provide goods or services, the Special Counsel may transmit

recommendations for disciplinary or other appropriate action

(including the evidence on which such recommendations are based) to

the head of the agency concerned.

(2) In any case in which the Special Counsel transmits

recommendations to an agency head under paragraph (1), the agency

head shall, within 60 days after receiving such recommendations,

transmit a report to the Special Counsel on each recommendation and

the action taken, or proposed to be taken, with respect to each

such recommendation.

-SOURCE-

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

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1204, 1212, 1216, 1219,

1221, 2105, 2302, 3393, 7121, 7502, 7512, 7521, 7542 of this title;

title 49 section 40122.

-CITE-

5 USC Sec. 1216 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1216. Other matters within the jurisdiction of the Office of

Special Counsel

-STATUTE-

(a) In addition to the authority otherwise provided in this

chapter, the Special Counsel shall, except as provided in

subsection (b), conduct an investigation of any allegation

concerning -

(1) political activity prohibited under subchapter III of

chapter 73, relating to political activities by Federal

employees;

(2) political activity prohibited under chapter 15, relating to

political activities by certain State and local officers and

employees;

(3) arbitrary or capricious withholding of information

prohibited under section 552, except that the Special Counsel

shall make no investigation of any withholding of foreign

intelligence or counterintelligence information the disclosure of

which is specifically prohibited by law or by Executive order;

(4) activities prohibited by any civil service law, rule, or

regulation, including any activity relating to political

intrusion in personnel decisionmaking; and

(5) involvement by any employee in any prohibited

discrimination found by any court or appropriate administrative

authority to have occurred in the course of any personnel action.

(b) The Special Counsel shall make no investigation of any

allegation of any prohibited activity referred to in subsection

(a)(5), if the Special Counsel determines that the allegation may

be resolved more appropriately under an administrative appeals

procedure.

(c) If the Special Counsel receives an allegation concerning any

matter under paragraph (1), (3), (4), or (5) of subsection (a), the

Special Counsel may investigate and seek corrective action under

section 1214 and disciplinary action under section 1215 in the same

way as if a prohibited personnel practice were involved.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 28;

amended Pub. L. 103-94, Sec. 3, Oct. 6, 1993, 107 Stat. 1004.)

-MISC1-

AMENDMENTS

1993 - Subsec. (c). Pub. L. 103-94 amended subsec. (c)

generally. Prior to amendment, subsec. (c) read as follows:

''(1) If an investigation by the Special Counsel under subsection

(a)(1) substantiates an allegation relating to any activity

prohibited under section 7324, the Special Counsel may petition the

Merit Systems Protection Board for any penalties provided for under

section 7325.

''(2) If the Special Counsel receives an allegation concerning

any matter under paragraph (3), (4), or (5) of subsection (a), the

Special Counsel may investigate and seek corrective action under

section 1214 in the same way as if a prohibited personnel practice

were involved.''

EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS PROVISION

Amendment by Pub. L. 103-94 effective 120 days after Oct. 6,

1993, but not to release or extinguish any penalty, forfeiture, or

liability incurred under amended provision, which is to be treated

as remaining in force for purpose of that penalty, forfeiture, or

liability, and no provision of Pub. L. 103-94 to affect any

proceedings with respect to which charges were filed on or before

120 days after Oct. 6, 1993, with orders to be issued in such

proceedings and appeals taken therefrom as if Pub. L. 103-94 had

not been enacted, see section 12 of Pub. L. 103-94, set out as an

Effective Date; Savings Provision note under section 7321 of this

title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1215, 2105 of this

title; title 49 section 40122.

-CITE-

5 USC Sec. 1217 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1217. Transmittal of information to Congress

-STATUTE-

The Special Counsel or any employee of the Special Counsel

designated by the Special Counsel, shall transmit to the Congress

on the request of any committee or subcommittee thereof, by report,

testimony, or otherwise, information and the Special Counsel's

views on functions, responsibilities, or other matters relating to

the Office. Such information shall be transmitted concurrently to

the President and any other appropriate agency in the executive

branch.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 28.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49 section 40122.

-CITE-

5 USC Sec. 1218 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1218. Annual report

-STATUTE-

The Special Counsel shall submit an annual report to the Congress

on the activities of the Special Counsel, including the number,

types, and disposition of allegations of prohibited personnel

practices filed with it, investigations conducted by it, cases in

which it did not make a determination whether there are reasonable

grounds to believe that a prohibited personnel practice has

occurred, exists, or is to be taken within the 240-day period

specified in section 1214(b)(2)(A)(i), and actions initiated by it

before the Merit Systems Protection Board, as well as a description

of the recommendations and reports made by it to other agencies

pursuant to this subchapter, and the actions taken by the agencies

as a result of the reports or recommendations. The report required

by this section shall include whatever recommendations for

legislation or other action by Congress the Special Counsel may

consider appropriate.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 29;

amended Pub. L. 103-424, Sec. 3(e), Oct. 29, 1994, 108 Stat. 4363.)

-MISC1-

AMENDMENTS

1994 - Pub. L. 103-424 inserted ''cases in which it did not make

a determination whether there are reasonable grounds to believe

that a prohibited personnel practice has occurred, exists, or is to

be taken within the 240-day period specified in section

1214(b)(2)(A)(i),'' after ''investigations conducted by it,''.

TERMINATION OF REPORTING REQUIREMENTS

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

in 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 188 of House Document No. 103-7.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 49 section 40122.

-CITE-

5 USC Sec. 1219 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER II - OFFICE OF SPECIAL COUNSEL

-HEAD-

Sec. 1219. Public information

-STATUTE-

(a) The Special Counsel shall maintain and make available to the

public -

(1) a list of noncriminal matters referred to heads of agencies

under subsection (c) of section 1213, together with reports from

heads of agencies under subsection (c)(1)(B) of such section

relating to such matters;

(2) a list of matters referred to heads of agencies under

section 1215(c)(2);

(3) a list of matters referred to heads of agencies under

subsection (e) of section 1214, together with certifications from

heads of agencies under such subsection; and

(4) reports from heads of agencies under section 1213(g)(1).

(b) The Special Counsel shall take steps to ensure that any list

or report made available to the public under this section does not

contain any information the disclosure of which is prohibited by

law or by Executive order requiring that information be kept secret

in the interest of national defense or the conduct of foreign

affairs.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 29.)

-CITE-

5 USC SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN

CERTAIN REPRISAL CASES 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL

CASES

.

-HEAD-

SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL

CASES

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in section 7121 of this title;

title 12 sections 1441a, 1831j.

-CITE-

5 USC Sec. 1221 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL

CASES

-HEAD-

Sec. 1221. Individual right of action in certain reprisal cases

-STATUTE-

(a) Subject to the provisions of subsection (b) of this section

and subsection 1214(a)(3), an employee, former employee, or

applicant for employment may, with respect to any personnel action

taken, or proposed to be taken, against such employee, former

employee, or applicant for employment, as a result of a prohibited

personnel practice described in section 2302(b)(8), seek corrective

action from the Merit Systems Protection Board.

(b) This section may not be construed to prohibit any employee,

former employee, or applicant for employment from seeking

corrective action from the Merit Systems Protection Board before

seeking corrective action from the Special Counsel, if such

employee, former employee, or applicant for employment has the

right to appeal directly to the Board under any law, rule, or

regulation.

(c)(1) Any employee, former employee, or applicant for employment

seeking corrective action under subsection (a) may request that the

Board order a stay of the personnel action involved.

(2) Any stay requested under paragraph (1) shall be granted

within 10 calendar days (excluding Saturdays, Sundays, and legal

holidays) after the date the request is made, if the Board

determines that such a stay would be appropriate.

(3)(A) The Board shall allow any agency which would be subject to

a stay under this subsection to comment to the Board on such stay

request.

(B) Except as provided in subparagraph (C), a stay granted under

this subsection shall remain in effect for such period as the Board

determines to be appropriate.

(C) The Board may modify or dissolve a stay under this subsection

at any time, if the Board determines that such a modification or

dissolution is appropriate.

(d)(1) At the request of an employee, former employee, or

applicant for employment seeking corrective action under subsection

(a), the Board shall issue a subpoena for the attendance and

testimony of any person or the production of documentary or other

evidence from any person if the Board finds that the testimony or

production requested is not unduly burdensome and appears

reasonably calculated to lead to the discovery of admissible

evidence.

(2) A subpoena under this subsection may be issued, and shall be

enforced, in the same manner as applies in the case of subpoenas

under section 1204.

(e)(1) Subject to the provisions of paragraph (2), in any case

involving an alleged prohibited personnel practice as described

under section 2302(b)(8), the Board shall order such corrective

action as the Board considers appropriate if the employee, former

employee, or applicant for employment has demonstrated that a

disclosure described under section 2302(b)(8) was a contributing

factor in the personnel action which was taken or is to be taken

against such employee, former employee, or applicant. The employee

may demonstrate that the disclosure was a contributing factor in

the personnel action through circumstantial evidence, such as

evidence that -

(A) the official taking the personnel action knew of the

disclosure; and

(B) the personnel action occurred within a period of time such

that a reasonable person could conclude that the disclosure was a

contributing factor in the personnel action.

(2) Corrective action under paragraph (1) may not be ordered if

the agency demonstrates by clear and convincing evidence that it

would have taken the same personnel action in the absence of such

disclosure.

(f)(1) A final order or decision shall be rendered by the Board

as soon as practicable after the commencement of any proceeding

under this section.

(2) A decision to terminate an investigation under subchapter II

may not be considered in any action or other proceeding under this

section.

(3) If, based on evidence presented to it under this section, the

Merit Systems Protection Board determines that there is reason to

believe that a current employee may have committed a prohibited

personnel practice, the Board shall refer the matter to the Special

Counsel to investigate and take appropriate action under section

1215.

(g)(1)(A) If the Board orders corrective action under this

section, such corrective action may include -

(i) that the individual be placed, as nearly as possible, in

the position the individual would have been in had the prohibited

personnel practice not occurred; and

(ii) back pay and related benefits, medical costs incurred,

travel expenses, and any other reasonable and foreseeable

consequential changes.

(B) Corrective action shall include attorney's fees and costs as

provided for under paragraphs (2) and (3).

(2) If an employee, former employee, or applicant for employment

is the prevailing party before the Merit Systems Protection Board,

and the decision is based on a finding of a prohibited personnel

practice, the agency involved shall be liable to the employee,

former employee, or applicant for reasonable attorney's fees and

any other reasonable costs incurred.

(3) If an employee, former emloyee, (FOOTNOTE 1) or applicant for

employment is the prevailing party in an appeal from the Merit

Systems Protection Board, the agency involved shall be liable to

the employee, former employee, or applicant for reasonable

attorney's fees and any other reasonable costs incurred, regardless

of the basis of the decision.

(FOOTNOTE 1) So in original. Probably should be ''employee,''.

(h)(1) An employee, former employee, or applicant for employment

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

Board under this section may obtain judicial review of the order or

decision.

(2) A petition for review under this subsection shall be filed

with such court, and within such time, as provided for under

section 7703(b).

(i) Subsections (a) through (h) shall apply in any proceeding

brought under section 7513(d) if, or to the extent that, a

prohibited personnel practice as defined in section 2302(b)(8) is

alleged.

(j) In determining the appealability of any case involving an

allegation made by an individual under the provisions of this

chapter, neither the status of an individual under any retirement

system established under a Federal statute nor any election made by

such individual under any such system may be taken into account.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 29;

amended Pub. L. 103-424, Sec. 4, 8(b), Oct. 29, 1994, 108 Stat.

4363, 4365.)

-MISC1-

AMENDMENTS

1994 - Subsec. (d)(1). Pub. L. 103-424, Sec. 4(a), added par. (1)

and struck out former par. (1) which read as follows: ''At the

request of an employee, former employee, or applicant for

employment seeking corrective action under subsection (a), the

Board may issue a subpoena for the attendance and testimony of any

person or the production of documentary or other evidence from any

person if the Board finds that such subpoena is necessary for the

development of relevant evidence.''

Subsec. (e)(1). Pub. L. 103-424, Sec. 4(b), which directed the

amendment of section 1221(e)(1), without specifying the Code title

to be amended, by inserting at end ''The employee may demonstrate

that the disclosure was a contributing factor in the personnel

action through circumstantial evidence, such as evidence that -

''(A) the official taking the personnel action knew of the

disclosure; and

''(B) the personnel action occurred within a period of time

such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action.'', was

executed to subsec. (e)(1) of this section to reflect the

probable intent of Congress.

Subsec. (f)(3). Pub. L. 103-424, Sec. 4(c), added par. (3).

Subsec. (g). Pub. L. 103-424, Sec. 8(b), added par. (1) and

redesignated former pars. (1) and (2) as (2) and (3), respectively.

EFFECTIVE DATE

Subchapter effective 90 days following Apr. 10, 1989, see section

11 of Pub. L. 101-12, set out as an Effective Date of 1989

Amendment note under section 1201 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1214, 1222, 2105,

2303, 7121 of this title; title 22 section 4139; title 49 section

40122.

-CITE-

5 USC Sec. 1222 01/06/03

-EXPCITE-

TITLE 5 - GOVERNMENT ORGANIZATION AND EMPLOYEES

PART II - CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

CHAPTER 12 - MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL

COUNSEL, AND EMPLOYEE RIGHT OF ACTION

SUBCHAPTER III - INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL

CASES

-HEAD-

Sec. 1222. Availability of other remedies

-STATUTE-

Except as provided in section 1221(i), nothing in this chapter or

chapter 23 shall be construed to limit any right or remedy

available under a provision of statute which is outside of both

this chapter and chapter 23.

-SOURCE-

(Added Pub. L. 101-12, Sec. 3(a)(13), Apr. 10, 1989, 103 Stat. 31.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2105 of this title.

-CITE-