US Laws, Codes, Statutes & Cases

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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 5USC1214]

 
             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
 
Sec. 1214. Investigation of prohibited personnel practices; 
        corrective action
        
    (a)(1)(A) The Special Counsel shall receive any allegation of a 
prohibited personnel practice and shall investigate the allegation to 
the extent necessary to determine whether there are reasonable grounds 
to believe that a prohibited personnel practice has occurred, exists, or 
is to be taken.
    (B) Within 15 days after the date of receiving an allegation of a 
prohibited personnel practice under paragraph (1), the Special Counsel 
shall provide written notice to the person who made the allegation 
that--
        (i) the allegation has been received by the Special Counsel; and
        (ii) shall include the name of a person at the Office of Special 
    Counsel who shall serve as a contact with the person making the 
    allegation.

    (C) Unless an investigation is terminated under paragraph (2), the 
Special Counsel shall--
        (i) within 90 days after notice is provided under subparagraph 
    (B), notify the person who made the allegation of the status of the 
    investigation and any action taken by the Office of the Special 
    Counsel since the filing of the allegation;
        (ii) notify such person of the status of the investigation and 
    any action taken by the Office of the Special Counsel since the last 
    notice, at least every 60 days after notice is given under clause 
    (i); and
        (iii) notify such person of the status of the investigation and 
    any action taken by the Special Counsel at such time as determined 
    appropriate by the Special Counsel.

    (D) No later than 10 days before the Special Counsel terminates any 
investigation of a prohibited personnel practice, the Special Counsel 
shall provide a written status report to the person who made the 
allegation of the proposed findings of fact and legal conclusions. The 
person may submit written comments about the report to the Special 
Counsel. The Special Counsel shall not be required to provide a 
subsequent written status report under this subparagraph after the 
submission of such written comments.
    (2)(A) If the Special Counsel terminates any investigation under 
paragraph (1), the Special Counsel shall prepare and transmit to any 
person on whose allegation the investigation was initiated a written 
statement notifying the person of--
        (i) the termination of the investigation;
        (ii) a summary of relevant facts ascertained by the Special 
    Counsel, including the facts that support, and the facts that do not 
    support, the allegations of such person;
        (iii) the reasons for terminating the investigation; and
        (iv) a response to any comments submitted under paragraph 
    (1)(D).

    (B) A written statement under subparagraph (A) may not be admissible 
as evidence in any judicial or administrative proceeding, without the 
consent of the person who received such statement under subparagraph 
(A).
    (3) Except in a case in which an employee, former employee, or 
applicant for employment has the right to appeal directly to the Merit 
Systems Protection Board under any law, rule, or regulation, any such 
employee, former employee, or applicant shall seek corrective action 
from the Special Counsel before seeking corrective action from the 
Board. An employee, former employee, or applicant for employment may 
seek corrective action from the Board under section 1221, if such 
employee, former employee, or applicant seeks corrective action for a 
prohibited personnel practice described in section 2302(b)(8) from the 
Special Counsel and--
        (A)(i) the Special Counsel notifies such employee, former 
    employee, or applicant that an investigation concerning such 
    employee, former employee, or applicant has been terminated; and
        (ii) no more than 60 days have elapsed since notification was 
    provided to such employee, former employee, or applicant for 
    employment that such investigation was terminated; or
        (B) 120 days after seeking corrective action from the Special 
    Counsel, such employee, former employee, or applicant has not been 
    notified by the Special Counsel that the Special Counsel shall seek 
    corrective action on behalf of such employee, former employee, or 
    applicant.

    (4) If an employee, former employee, or applicant seeks a corrective 
action from the Board under section 1221, pursuant to the provisions of 
paragraph (3)(B), the Special Counsel may continue to seek corrective 
action personal to such employee, former employee, or applicant only 
with the consent of such employee, former employee, or applicant.
    (5) In addition to any authority granted under paragraph (1), the 
Special Counsel may, in the absence of an allegation, conduct an 
investigation for the purpose of determining whether there are 
reasonable grounds to believe that a prohibited personnel practice (or a 
pattern of prohibited personnel practices) has occurred, exists, or is 
to be taken.
    (b)(1)(A)(i) The Special Counsel may request any member of the Merit 
Systems Protection Board to order a stay of any personnel action for 45 
days if the Special Counsel determines that there are reasonable grounds 
to believe that the personnel action was taken, or is to be taken, as a 
result of a prohibited personnel practice.
    (ii) Any member of the Board requested by the Special Counsel to 
order a stay under clause (i) shall order such stay unless the member 
determines that, under the facts and circumstances involved, such a stay 
would not be appropriate.
    (iii) Unless denied under clause (ii), any stay under this 
subparagraph shall be granted within 3 calendar days (excluding 
Saturdays, Sundays, and legal holidays) after the date of the request 
for the stay by the Special Counsel.
    (B) The Board may extend the period of any stay granted under 
subparagraph (A) for any period which the Board considers appropriate.
    (C) The Board shall allow any agency which is the subject of a stay 
to comment to the Board on any extension of stay proposed under 
subparagraph (B).
    (D) A stay may be terminated by the Board at any time, except that a 
stay may not be terminated by the Board--
        (i) on its own motion or on the motion of an agency, unless 
    notice and opportunity for oral or written comments are first 
    provided to the Special Counsel and the individual on whose behalf 
    the stay was ordered; or
        (ii) on motion of the Special Counsel, unless notice and 
    opportunity for oral or written comments are first provided to the 
    individual on whose behalf the stay was ordered.

    (2)(A)(i) Except as provided under clause (ii), no later than 240 
days after the date of receiving an allegation of a prohibited personnel 
practice under paragraph (1), the Special Counsel shall make a 
determination whether there are reasonable grounds to believe that a 
prohibited personnel practice has occurred, exists, or is to be taken.
    (ii) If the Special Counsel is unable to make the required 
determination within the 240-day period specified under clause (i) and 
the person submitting the allegation of a prohibited personnel practice 
agrees to an extension of time, the determination shall be made within 
such additional period of time as shall be agreed upon between the 
Special Counsel and the person submitting the allegation.
    (B) If, in connection with any investigation, the Special Counsel 
determines that there are reasonable grounds to believe that a 
prohibited personnel practice has occurred, exists, or is to be taken 
which requires corrective action, the Special Counsel shall report the 
determination together with any findings or recommendations to the 
Board, the agency involved and to the Office of Personnel Management, 
and may report such determination, findings and recommendations to the 
President. The Special Counsel may include in the report recommendations 
for corrective action to be taken.
    (C) If, after a reasonable period of time, the agency does not act 
to correct the prohibited personnel practice, the Special Counsel may 
petition the Board for corrective action.
    (D) If the Special Counsel finds, in consultation with the 
individual subject to the prohibited personnel practice, that the agency 
has acted to correct the prohibited personnel practice, the Special 
Counsel shall file such finding with the Board, together with any 
written comments which the individual may provide.
    (E) A determination by the Special Counsel under this paragraph 
shall not be cited or referred to in any proceeding under this paragraph 
or any other administrative or judicial proceeding for any purpose, 
without the consent of the person submitting the allegation of a 
prohibited personnel practice.
    (3) Whenever the Special Counsel petitions the Board for corrective 
action, the Board shall provide an opportunity for--
        (A) oral or written comments by the Special Counsel, the agency 
    involved, and the Office of Personnel Management; and
        (B) written comments by any individual who alleges to be the 
    subject of the prohibited personnel practice.

    (4)(A) The Board shall order such corrective action as the Board 
considers appropriate, if the Board determines that the Special Counsel 
has demonstrated that a prohibited personnel practice, other than one 
described in section 2302(b)(8), has occurred, exists, or is to be 
taken.
    (B)(i) Subject to the provisions of clause (ii), in any case 
involving an alleged prohibited personnel practice as described under 
section 2302(b)(8), the Board shall order such corrective action as the 
Board considers appropriate if the Special Counsel has demonstrated that 
a disclosure described under section 2302(b)(8) was a contributing 
factor in the personnel action which was taken or is to be taken against 
the individual.
    (ii) Corrective action under clause (i) may not be ordered if the 
agency demonstrates by clear and convincing evidence that it would have 
taken the same personnel action in the absence of such disclosure.
    (c)(1) Judicial review of any final order or decision of the Board 
under this section may be obtained by any employee, former employee, or 
applicant for employment adversely affected by such order or decision.
    (2) A petition for review under this subsection shall be filed with 
such court, and within such time, as provided for under section 7703(b).
    (d)(1) If, in connection with any investigation under this 
subchapter, the Special Counsel determines that there is reasonable 
cause to believe that a criminal violation has occurred, the Special 
Counsel shall report the determination to the Attorney General and to 
the head of the agency involved, and shall submit a copy of the report 
to the Director of the Office of Personnel Management and the Director 
of the Office of Management and Budget.
    (2) In any case in which the Special Counsel determines that there 
are reasonable grounds to believe that a prohibited personnel practice 
has occurred, exists, or is to be taken, the Special Counsel shall 
proceed with any investigation or proceeding unless--
        (A) the alleged violation has been reported to the Attorney 
    General; and
        (B) the Attorney General is pursuing an investigation, in which 
    case the Special Counsel, after consultation with the Attorney 
    General, has discretion as to whether to proceed.

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

    (f) During any investigation initiated under this subchapter, no 
disciplinary action shall be taken against any employee for any alleged 
prohibited activity under investigation or for any related activity 
without the approval of the Special Counsel.
    (g) If the Board orders corrective action under this section, such 
corrective action may include--
        (1) that the individual be placed, as nearly as possible, in the 
    position the individual would have been in had the prohibited 
    personnel practice not occurred; and
        (2) reimbursement for attorney's fees, back pay and related 
    benefits, medical costs incurred, travel expenses, and any other 
    reasonable and foreseeable consequential damages.

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


                               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.''

                  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.