U.S. Code, Title 5, Government Organization and Employees

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Author: "U.S. Congress, Office of the Law Revision Counsel"

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§ 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.

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.

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

Amendments

     1994—Subsec. (d)(1). Pub. L. 103–424, § 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, § 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, § 4(c), added par. (3).

     Subsec. (g). Pub. L. 103–424, § 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.

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Chicago: "U.S. Congress, Office of the Law Revision Counsel", "§ 1221. Individual Right of Action in Certain Reprisal Cases," U.S. Code, Title 5, Government Organization and Employees in U.S. Code, Title 5, Government Organization and Employees (Washington, D.C.: Government Printing Office, 2002), Original Sources, accessed August 21, 2019, http://www.originalsources.com/Document.aspx?DocID=PBREICCNLVLEJCW.

MLA: "U.S. Congress, Office of the Law Revision Counsel". "§ 1221. Individual Right of Action in Certain Reprisal Cases." U.S. Code, Title 5, Government Organization and Employees, in U.S. Code, Title 5, Government Organization and Employees, Washington, D.C., Government Printing Office, 2002, Original Sources. 21 Aug. 2019. www.originalsources.com/Document.aspx?DocID=PBREICCNLVLEJCW.

Harvard: "U.S. Congress, Office of the Law Revision Counsel", '§ 1221. Individual Right of Action in Certain Reprisal Cases' in U.S. Code, Title 5, Government Organization and Employees. cited in 2002, U.S. Code, Title 5, Government Organization and Employees, Government Printing Office, Washington, D.C.. Original Sources, retrieved 21 August 2019, from http://www.originalsources.com/Document.aspx?DocID=PBREICCNLVLEJCW.