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-CITE-
5 USC Sec. 1214 01/03/05-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, Secs. 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."