US Laws, Codes, Statutes & Cases

From the U.S. Code Online via GPO Access
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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: 5USC1221]

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

    (a) Subject to the provisions of subsection (b) of this section and 
subsection 1214(a)(3), an employee, former employee, or applicant for 
employment may, with respect to any personnel action taken, or proposed 
to be taken, against such employee, former employee, or applicant for 
employment, as a result of a prohibited personnel practice described in 
section 2302(b)(8), seek corrective action from the Merit Systems 
Protection Board.
    (b) This section may not be construed to prohibit any employee, 
former employee, or applicant for employment from seeking corrective 
action from the Merit Systems Protection Board before seeking corrective 
action from the Special Counsel, if such employee, former employee, or 
applicant for employment has the right to appeal directly to the Board 
under any law, rule, or regulation.
    (c)(1) Any employee, former employee, or applicant for employment 
seeking corrective action under subsection (a) may request that the 
Board order a stay of the personnel action involved.
    (2) Any stay requested under paragraph (1) shall be granted within 
10 calendar days (excluding Saturdays, Sundays, and legal holidays) 
after the date the request is made, if the Board determines that such a 
stay would be appropriate.
    (3)(A) The Board shall allow any agency which would be subject to a 
stay under this subsection to comment to the Board on such stay request.
    (B) Except as provided in subparagraph (C), a stay granted under 
this subsection shall remain in effect for such period as the Board 
determines to be appropriate.
    (C) The Board may modify or dissolve a stay under this subsection at 
any time, if the Board determines that such a modification or 
dissolution is appropriate.
    (d)(1) At the request of an employee, former employee, or applicant 
for employment seeking corrective action under subsection (a), the Board 
shall issue a subpoena for the attendance and testimony of any person or 
the production of documentary or other evidence from any person if the 
Board finds that the testimony or production requested is not unduly 
burdensome and appears reasonably calculated to lead to the discovery of 
admissible evidence.
    (2) A subpoena under this subsection may be issued, and shall be 
enforced, in the same manner as applies in the case of subpoenas under 
section 1204.
    (e)(1) Subject to the provisions of paragraph (2), in any case 
involving an alleged prohibited personnel practice as described under 
section 2302(b)(8), the Board shall order such corrective action as the 
Board considers appropriate if the employee, former employee, or 
applicant for employment has demonstrated that a disclosure described 
under section 2302(b)(8) was a contributing factor in the personnel 
action which was taken or is to be taken against such employee, former 
employee, or applicant. The employee may demonstrate that the disclosure 
was a contributing factor in the personnel action through circumstantial 
evidence, such as evidence that--
        (A) the official taking the personnel action knew of the 
    disclosure; and
        (B) the personnel action occurred within a period of time such 
    that a reasonable person could conclude that the disclosure was a 
    contributing factor in the personnel action.

    (2) Corrective action under paragraph (1) may not be ordered if the 
agency demonstrates by clear and convincing evidence that it would have 
taken the same personnel action in the absence of such disclosure.
    (f)(1) A final order or decision shall be rendered by the Board as 
soon as practicable after the commencement of any proceeding under this 
section.
    (2) A decision to terminate an investigation under subchapter II may 
not be considered in any action or other proceeding under this section.
    (3) If, based on evidence presented to it under this section, the 
Merit Systems Protection Board determines that there is reason to 
believe that a current employee may have committed a prohibited 
personnel practice, the Board shall refer the matter to the Special 
Counsel to investigate and take appropriate action under section 1215.
    (g)(1)(A) If the Board orders corrective action under this section, 
such corrective action may include--
        (i) that the individual be placed, as nearly as possible, in the 
    position the individual would have been in had the prohibited 
    personnel practice not occurred; and
        (ii) back pay and related benefits, medical costs incurred, 
    travel expenses, and any other reasonable and foreseeable 
    consequential changes.

    (B) Corrective action shall include attorney's fees and costs as 
provided for under paragraphs (2) and (3).
    (2) If an employee, former employee, or applicant for employment is 
the prevailing party before the Merit Systems Protection Board, and the 
decision is based on a finding of a prohibited personnel practice, the 
agency involved shall be liable to the employee, former employee, or 
applicant for reasonable attorney's fees and any other reasonable costs 
incurred.
    (3) If an employee, former emloyee,\1\ or applicant for employment 
is the prevailing party in an appeal from the Merit Systems Protection 
Board, the agency involved shall be liable to the employee, former 
employee, or applicant for reasonable attorney's fees and any other 
reasonable costs incurred, regardless of the basis of the decision.
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    \1\ So in original. Probably should be ``employee,''.
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    (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.

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


                               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.

                  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.