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Page:United States Statutes at Large Volume 92 Part 1.djvu/1162

 92 STAT. 1108

PUBLIC LAW 95-452—OCT. 12, 1978 '"

(J) of the National Aeronautics and Space Administration, the offices of that agency referred to as the "Management Audit Office" and the "Office of Inspections and Security"; ..::>i fsfiil • (K) of the Small Business Administration, the office of that agency referred to as the "Office of Audits and Investigations"; and (L) of the Veterans' Administration, the offices of that agency referred to as the "Office of Audits" and the "Office of Investigations"; and (2) such other offices or agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of the Office and would, if so transferred, further the purposes of this Act, except that there shall not be transferred to an Inspector General under paragraph (2) program operating responsibilities. (b) The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available H s "' T or to be made available, of any office or agency the functions, powers, and duties of which are transferred under subsection (a) arc hereby transferred to the applicable Office of Inspector General. (c) Personnel transferred pursuant to subsection (b) shall be transferred in accordance with applicable laws and regulations relating to the transfer of functions except that the classification and compensation of such personnel shall not be reduced for one year after such transfer. (d) In any case where all the functions, powers, and duties of any office or agency are transferred pursuant to this subsection, such office or agency shall lapse. Any person who, on the effective date of this Act, held a position compensated in accordance with the General Schedule, and who, without a break in service, is appointed in an Office of Inspector General to a position having duties comparable to those performed immediately preceding such appointment shall continue to be compensated in the new position at not less than the rate provided for the previous position, for the duration of service in the new position. CONFORMING AND TECHNICAL

AMENDMENTS

SEC. 10. (a) Section 5315 of title 5, United States Code, is amended by adding at the end thereof the following new paragraphs: "(122) Inspector General, Department of Health, Education, and Welfare. "(123) Inspector General, Department of Agriculture. "(124) Inspector General, Department of Housing and Urban Development. "(125) Inspector General, Department of Labor. "(126) Inspector General, Department of Transportation. " (127) Inspector General, Veterans' Administration.", (b) Section 5316 of title 5, United States Code, is amended by adding at the end thereof the following new paragraphs: "(144) Deputy Inspector General, Department of Health, Education, and Welfare. "(145) Inspector General, Department of Commerce. " (146) Inspector General, Department of the Interior. "(147) Inspector General, Community Services Administration.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1163

 PUBLIC LAW 95-452—OCT. 12, 1978

92 STAT. 1109

"(148) Inspector General, Environmental Protection Agency. " (149) Inspector General, General Services Administration. "(150) Inspector General, National Aeronautics and Space Administration. "(151) Inspector General, Small Business Administration.". (c) Section 202(e) of the Act of October 15, 1976 (Public Law 94-505, 42 U.S.C. 3522), is amended by striking out "section 6(a)(1) " and "section 6(a)(2)" and inserting in lieu thereof "section 206(a)(1)" and "section 206(a)(2)", respectively. DEFINITIONS

SEC. 11. AS used in this Act— 5 USC app. (1) the term "head of the establishment" means the Secretary of Agriculture, Commerce, Housing and Urban Development, the Interior, Labor, or Transportation or the Administrator of Com- • " '^. munity Services, Environmental Protection, General Services, '' National Aeronautics and Space, Small Business, or Veterans' Affairs, as the case may be; (2) the term "establishment" means the Department of Agriculture, Commerce, Housing and Urban Development, the Interior, Labor, or Transportation or the Community Services Administration, the Environmental Protection Agency, the Gens eral Services Administration, the National Aeronautics and Space Administration, the Small Business Administration, or the Veterans' Administration, as the case may be; (3) the term "Inspector General" means the Inspector General of an establishment; (4) the term "Office" means the Office of Inspector General of an establishment; and (5) the term "Federal agency" means an agency as defined in section 552(e) of title 5 (including an establishment as defined in paragraph (2)), United States Code, but shall not be construed to include the General Accounting Office. EFFECTIVE DATE

SEC. 12. The provisions of this Act and the amendments made by this 5 USC app. Act shall take effect October 1, 1978. Approved October 12, 1978.

LEGISLATIVE HISTORY: HOUSE REPORT No. 95-584 (Comm. on Government Operations). SENATE REPORT No. 95-1071 (Comm. on Governmental Affairs). CONGRESSIONAL RECORD, Vol. 124 (1978): Apr. 18, considered and passed House. Sept. 22, considered and passed Senate, amended. Sept. 27, House concurred in Senate amendment. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 4 1: Oct. 12, Presidential statement.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1164

 92 STAT. 1110

PUBLIC LAW 95-453—OCT. 12, 1978

Public Law 95-453 95th Congress An Act Oct. 12, 1978 [H.R. 9945]

Indian Claims Commission, activities of Commissioners.

25 USC 70b note. 25 USC 450i.

To amend the Act creating the Indian Claims Commission to repeal the provision limiting the activities of Commissioners during the two years following ,their terms of office.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first sentence of section 3(c) (25 U.S.C. 70b(c)) of the Act entitled "An Act to create an Indian Claims Commission, to provide for the powers, duties, and functions thereof, and for other purposes", approved August 13, 1946 (60 Stat. 1049; 25 U.S.C. 70 et seq.), is amended by striking out "or for a period of two years thereafter". Section 105(j) of the Indian Self-Determination Act (88 Stat. 2206, 2210) shall not apply to those members of the Indian Claims Commission affected by this Act. Approved October 12, 1978.

LEGISLATIVE HISTORY: HOUSE REPORT No. 95-1510 (Comm. on Interior and Insular Affairs). CONGRESSIONAL RECORD, Vol. 124 (1978): Sept. 18, considered and passed House. Sept. 28, considered and passed Senate.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1165

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1111

Public Law 95-454 95th Congress An Act To reform the civil service laws.

Oct. 13, 1978

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

1978. 5 USC 1101 note.

SHORT TITLE SECTION

^-.j^jj Service Reform Act of

1. This Act may be cited as the "Civil Service Keform Act

of 1978". TABLE OF CONTENTS

SEC. 2. The table of contents is as follows: TABLE OF CONTENTS Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings and statement of purpose.

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TITLE I—MERIT SYSTEM PRINCIPLES Sec. 101. Merit system principles; prohibited personnel practices. TITLE II—CIVIL SERVICE FUNCTIONS; PERFORMANCE APPRAISAL; ADVERSE ACTIONS Sec. Sec. Sec. Sec. Sec. Sec.

201. 202. 203. 204. 205. 206.

Oflace of Personnel Management. Merit Systems Protection Board and Special Counsel. Performance appraisals. Adverse actions. Appeals. Technical and conforming amendments. TITLE III—STAFFING

Sec. 301. Volunteer service. Sec. 302. Interpreting assistants for deaf employees. Sec. 303. Probationary period. Sec. 304. Training. Sec. 305. Travel, transportation, and subsistence. Sec. 306. Retirement. Sec. 307. Veterans and preference eligibles. Sec. 308. Dual pay for retired members of the uniformed services. Sec. 309. Civil service employment information. Sec. 310. Minority recruitment program. Sec. 311. Temporary employment limitation. TITLE IV—SENIOR EXECUTIVE SERVICE Sec. Sec. Sec. SPC. See. Sec. Sec. Sec. See. See. Sec. Sec. Sec. Sec. Sec.

401. 402. 403. 404. 405. 406. 407. 408. 409. 410. 411. 412. 413. 414. 415.

General provisions. Authority for employment. Examination, certification, and appointment. Retention preference. Performance rating. Awarding of ranks. Pay rates and systems. Pay administration. Travel, transportation, and subsistence. Leave. Disciplinary actions. Retirement. Conversion to the Senior Executive Service. Limitations ^ n executive positions. Effective-date; congressional review.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1166

 92 STAT. 1112

PUBLIC LAW 95-454—OCT. 13, 1978 TABLE OF CONTENTS—Continued

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TITLE V—MERIT PAY Sec. 501. Pay for performance. Sec. 502. Incentive awards amendments. Sec. 503. Tectinical and conforming amendments. Sec. 504. Effective date. >s'

.

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TITLE VI—RESEARCH, DEMONSTRATION, AND OTHER PROGRAMS Sec. 601. Researcli programs and demonstration projects. Sec. 602. Intergovernmental Personnel Act amendments. Sec. 603. Amendments to the mobility program. TITLE VII—FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS Sec. 701. Federal service labor-management relations. !'; •• Sec. 702. Backpay in case of unfair labor practices and grievances. Sec. 703. Technical and conforming amendments. Sec. 704. Miscellaneous provisions. i t;!**' TITLE VIII—GRADE AND PAY RETENTION Sec. 801. Grade and pay retention. Sec. Sec. Sec. Sec. Sec. Sec. Sec.

TITLE IX—MISCELLANEOUS 901. Study on decentralization of governmental functions. 902. Savings provisions. ,,, » <. 903. Authorization of appropriations. 904, Powers of President unaffected except by express provisions. 905. Reorganizations plans. 906. Technical and conforming amendments. 907. Effective date. ,, i....,.... H»./..- ,..,< FINDINGS AND STATEMENT OF PURPOSE

5 USC 1101 note.

SEC. 3. I t is the policy of the United States that— (1) in order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation's diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices; (2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business, and prohibited personnel practices should be statutorily defined to enable Federal employees to avoid conduct which undermines the merit system principles and the integrity of the merit system; (3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees; (4) the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices and reprisals against Federal employees for the law ful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct; (5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1167

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1113

be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control and oversight of this delegation being maintained by the Office of Personnel Management to protect against prohibited personnel practices and the use of unsound management practices by the agencies; (6) a Senior Executive Service should be established to provide the flexibility needed by agencies to recruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious administration of the public business; (7) in appropriate instances, pay increases should be based on quality of performance rather than length of service; (8) research programs and demonstration projects should be authorized to permit Federal agencies to experiment, subject to congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient management of the Government's human resources and greater productivity in the delivery of service to the public; (9) the training program of the Government should include retraining of employees for positions in other agencies to avoid separations during reductions in force and the loss to the Government of the knowledge and experience that these employees possess; and (10) the r i g h t of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute. TITLE I—MEEIT SYSTEM PRINCIPLES MERIT SYSTEM P R I N C I P L E S; PROHIBITED PERSONNEL PRACTICES

SEC. 101. (a) Title 5, United States Code, is amended by inserting after chapter 21 the following new chapter:

-^

" C H A P T E R 23—MERIT S Y S T E M P R I N C I P L E S "Sec. "2301. Merit system principles. "2302. Prohibited personnel practices. "2303. Prohibited personnel practices in the Federal Bureau of Investigation. "2304. Responsibility of the General Accounting Office. "2305. Coordination with certain other provisions of law. "§ 2301. Merit system principles 5 USC 2301. " (a) This section shall apply to— " (1) an Executive agency; " (2) the Administrative Office of the United States C o u r t s; and J " (3) the Government P r i n t i n g Office. . '. ' " (b) Federal personnel management should be implemented consistent with the following merit system principles: " (1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1168

 92 STAT. 1114

Infra.

j A S i..^-C

5 USC 2302. Definitions.

PUBLIC LAW 95-454—OCT. 13, 1978 "(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. "(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance. "(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest. "(5) The Federal work force should be used efficiently and effectively. " (6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. "(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance. "(8) Employees should be— "(A) protected against arbitrary action, personal favor_l,,, itism, or coercion for partisan political purposes, and "(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election. "(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences— "(A) a violation of any law, rule, or regulation, or "(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. "(c) In administering the provisions of this chapter— "(1) with respect to any agency (as defined in section 2302(a) (2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and "(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives; which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. "§2302. Prohibited personnel practices " (a)(1) For the purpose of this title, 'prohibited personnel practice' means any action described in subsection (b) of this section. "(2) For the purpose of this section— " (A) 'personnel action' means— .. "(i) an appointment; '" " (ii) a promotion;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1169

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1115

" (iii) an action under chapter 75 of this title or other disciplinary or corrective action; "(iv) a detail, transfer, or reassignment; "(v) a reinstatement; "(vi) a restoration; "(vii) a reemployment; "(viii) a performance evaluation under chapter 43 of this title; "(ix) a decision concerning pay, benefits, or awards, or ..,:. concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; and "(x) any other significant change in duties or res|X)nsibil4 ities which is inconsistent with the employee's salary or grade level; with respect to an employee in, or applicant for, a covered position in an agency; "(B) 'covered position' means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include— "(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policymaking, or policy-advocating character; or "(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration. "(C) 'agency'means an Executive agency, the Administrative Office of the United States Courts, and the Government Printing Office, but does not include— "(i) a Government corporation; "(ii) the Federal Bureau of Investigation, the Central ''-"' Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or "(iii) the General Accounting Office. "(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority— "(1) discriminate for or against any employee or applicant for employment— "(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Eights Act of 1964 (42 U.S.C. 2000e-16); "(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631,633a); "(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); " (D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or '" " (E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;

39-194 O—80—pt. 1

74: Q U

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1170

 92 STAT. 1116

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5 USC 3110.

PUBLIC LAW 95-454—OCT. 13, 1978 "(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of— "(A) an evaluation of the work performance, ability, ft^ •' aptitude, or general qualifications of such individual; or "(B) an evaluation of the character, loyalty, or suitability of such individual; "(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity; "(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment; "(6) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment; "(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment; "(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official; "(8) take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for— "(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes ' ' evidences— "(i) a violation of any law, rule, or regulation, or ^j "(ii) 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; or "(B) a disclosure to the Special Counsel of the ]Merit Systems Protection Board, 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 or applicant reasonably believes evidences— " (i) a violation of any law, rule, or regulation, or "(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; "(9) take or fail to take any personnel action against any of any appeal right granted by any law, rule, or regulation;
 * ^' employee or applicant for employment as a reprisal for the exercise

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1171

 PUBLIC LAW 95-454—OCT. 13, 1978 " (10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; or " (11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title. This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress. "(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation. "(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under— "(1) section 7l7 of the Civil Eights Act of 1964 (42 TJ.S.C. 2000e-16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin; "(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age; "(3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d)), prohibiting discrimination on the basis of sex * "(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or "(5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation. "2303. Prohibited personnel practices in the Federal Bureau of Investigation "(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences— " (1) a violation of any law, rule, or regulation, or " (2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. For the purpose of this subsection, 'personnel action' means any action described in clauses (i) through (x) of section 2302(a)(2)(A) of this

92 STAT. 1117

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5 USC 2303.

"Personnel action."

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1172

 92 STAT. 1118

Regulations.

Presidential enforcement. Post, p. 1125. 5 USC 2304.

Report to President and Congress.

5 USC 2305.

'MS 'mi

PUBLIC LAW 95-454~0CT. 13, 1978 title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character). " (b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section. "(c) The President shall provide for the enforcement of this section in a manner consistent with the provisions of section 1206 of this title. "§2304. Responsibility of the General Accounting Office "(a) If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the General Accounting Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management. "(b) the General Accounting Office shall prepare and submit an annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a description of— " (1) significant actions taken by the Board to carry out its functions under this title; and "(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices. "No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorities and responsibilities set forth in section 102 of the National Security Act of 1947 (61 Stat, 495; 50 XJ.S.C. 403), the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following), the Act entitled 'An Act to provide certain administrative authorities for the National Security Agency, and for other purposes', approved May 29, 1959 (73 Stat. 63; 50 U.S.C. 402 note), and the Act entitled 'An Act to amend the Internal Security Act of 1950', approved March 26, 1964 (78 Stat. 168; 50 U.S.C. 831-835).". (b)(1) The table of chapters for part III of title 5, United States Code, is amended by adding after the item relating to chapter 21 the following new item: "23. Merit system principles
 * '§2305. Coordination with certain other provisions of law

_

2301".

(2) Section 7153 of title 5, United States Code, is amended— (A) by striking out "Physical handicap" in the catchline and inserting in lieu thereof "Handicapping condition"; and (B) by striking out "physical handicap" each place it appears in the text and inserting m lieu thereof "handicapping condition". TITLE II—CIVIL SERVICE FUNCTIONS; PERFORMANCE A P P R A I S A L; ADVERSE ACTIONS OFFICE OF PERSONNEL

MANAGEMENT

SEC. 201. (a) Chapter 11 of title 5, United States Code, is amended to read as follows:

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1173

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1119

" C H A P T E R 11—OFFICE OF P E R S O N N E L M A N A G E M E N T

.

"Sec. ^" "1101. Office of Personnel Management. "1102. Director; Deputy Director; Associate Directors. "1103. Functions of the Director. "1104. Delegation of authority for personnel management. "1105. Administrative procedure. "§ 1101. Office of Personnel Management 5 USC lioi. " The Office of Personnel Management is an independent establishment in the executive branch. The Office shall have an official seal, xMU q as.'s which shall be judicially noticed, and shall have its principal office in the District of Columbia, and may have field offices in other appropriate locations. "§ 1102. Director; Deputy Director; Associate Directors 5 USC 1102. " (a) There is at the head of the Office of Personnel Management a Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The term of office of any individual appointed as Director shall be 4 years. " (b) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or when the office of Director is vacant. " (c) No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of the United States except as otherwise provided by law or at the direction of the President. The Director and Deputy Director shall not recommend any individual for appointment to any position (other than Deputy Directoi- of the Office) which requires the advice and consent of the Senate. " (d) There may be within the Office of Personnel Management not more than 5 Associate Directors, as determined from time to time by the Director. Each Associate Director shall be appointed by the Director. "§ l l O a Functions of the Director 5 USC 1103. " (a) The following functions are vested in the Director of the Office of Personnel Management, and shall be performed by the Director, or subject to section 1104 of this title, by such employees of the Office as the Director designates: " (1) securing accuracy, uniformity, and justice in the functions of the Office; " (2) appointing individuals to be employed by the Office; " (3) directing and supervising employees of the Office, distributing business among employees and organizational units of the Office, and directing the internal management of the Office; " (4) directing the preparation of requests for appropriations for the Office and the use and expenditure of funds by the Office; " (5) executing, administering, and enforcing— " (A) the civil service rules and regulations of the President and the Office and the laws governing the civil service; and " (B) the other activities of the Office including retirement and classification activities; except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible;
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Page:United States Statutes at Large Volume 92 Part 1.djvu/1174

 92 STAT. 1120 5 USC 8701 et seq.

Post, p. 1185. Notice of proposed rules or regulations. Publication in Federal Register. 5 USC 553.

5 USC 1104.

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Standards.

Oversight program.

PUBLIC LAW 95-454—OCT. 13, 1978 " (6) reviewing the operations under chapter 87 of this title; "(7) aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles, including recommending policies relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separation of employees; and "(8) conducting, or otherwise providing for the conduct of, studies and research under chapter 47 of this title into methods of assuring improvements in personnel management. "(b)(1) The Director shall publish in the Federal Register general notice of any rule or regulation which is proposed by the Office and the application of which does not apply solely to the Office or its employees. Any such notice shall include the matter required under section 553(b)(1), (2), and (3) of this title. " (2) The Director shall take steps to ensure that— "(A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations; and "(B) to the extent the Director determines appropriate and practical, exclusive representatives of employees affected by such proposed rule or regulation and interested members of the public are notified of such proposed rule or regulation. "(3) Paragraphs (1) and (2) of this subsection shall not apply to any proposed rule or regulation which is temporary in nature and which is necessary to be implemented expeditiously as a result of an emergency. "(a) Subject to subsection (b)(3) of this section— "(1) the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management; and "(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations (except competitive examinations for administrative law judges appointed under section 3105 of this title), to the heads of agencies in the executive branch and other agencies employing persons in the competitive service; except that the Director may not delegate authority for competitive examinations with respect to positions that have requirements which are common to agencies in the Federal Government, other than in exceptional cases in which the interests of economy and efficiency require such delegation and in which such delegation will not weaken the application of the merit system principles. "(b)(1) The Office shall establisih standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section. "(2) The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection. ,.,....„.,
 * '§ 1104. Delegation of authority for personnel management

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1175

 PUBLIC LAW 95-454—OCT. 13, 1978 "(3) Nothing in subsection (a) of this section shall be construed as affecting the responsibility of the Director to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations. "(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b)(2) of this section or otherwise, that any action taken by an agency pursuant to authority delegated under subsection (a)(2) of this section is contrary to any law, rule, or regulation, or is contrary to any standard established under subsection (b)(1) of this section, the agency involved shall take any corrective action the Office may require. "§ 1105. Administrative procedure "Subject to section 1103(b) of this title, in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title, notwithstanding subsection (a) of such section 553.". (b)(1) Section 5313 of title 5, United States Code, is amended by inserting at the end thereof the following new paragraph: "(24) Director of the Office of Personnel Management.". (2) Section 5314 of such title is amended by inserting at the end thereof the following new paragraph: "(68) Deputy Director of the Office of Personnel Management.". (3) Section 5316 of such title is amended by inserting after paragraph (121) the following: "(122) Associate Directors of the Office of Personnel Management (5).". (c)(1) The heading of part II of title 5, United States Code is amended by striking out "THE UNITED STATES CIVIL SERVICE COMMISSION" and inserting in lieu thereof "CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES". (2) The item relating to chapter 11 in the table of chapters for part II of such title is amended by striking out "Organization" and inserting in lieu thereof "Office of Personnel Management".

92 STAT. 1121

^^^, 5 USC 1105. 5 USC 553.

5 USC 5314.

5 USC 5316.

MERIT SYSTEMS PROTECTIOlSr BOARD AND SPECIAL COUNSEL

) SEC. 202. (a) Title 5, United States Code, is amended by inserting after chapter 11 the following new chapter:

M>t,r i '.

"CHAPTER 12—MERIT SYSTEMS PROTECTION BOARD AND SPECIAL COUNSEL "Sec.

"1201. "1202. "1203. "1204. "1205. "1206. "1207. "1208. "1209.

Appointment of members of the Merit Systems Protection Board. Term of office; filling vacancies; removal. Chairman; Vice Chairman. Special Counsel; appointment and removal. Powers and functions of the Merit Systems Protection Board and Special Counsel. Authority and responsibilities of the Special Counsel. Hearings and decisions on complaints filed by the Special Counsel. Stays of certain personnel actions. Information.

^- :

.

"§ 1201. Appointment of members of the Merit Systems Protection 5 USC 1201. Board "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 vvliom may be adherents of the same

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1176

 92 STAT. 1122

PUBLIC LAW 95-454—OCT. 13, 1978

political party. The Chairman and 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. 5 USC 1202. "§ 1202. Term of office, filling vacancies; removal "(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 his predecessor serves for the remainder of that term. Any appointment to fill a vacancy is subject to the requirements • i;'; ii of section 1201 of this title. "(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 A--ltl J * 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. 5 USC 1203. «§ 1203. Chairman; Vice Chairman "(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 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. 5 USC 1204. «§ 1204. Special Counsel; appointment and removal "The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the advice and consent of the Senate, for a term of 5 years. 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. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. 5 USC 1205. «§ 1205. Powers and functions of the Merit Systems Protection Board and Special Counsel " (a) The Merit Systems Protection Board shall— "(1) hear, adjudicate, or provide for the hearing or adjudica^^ ^, tion, of all matters within the jurisdiction of the Board under this Ami..!'•••. i, ^^^|g^ section 2023 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;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1177

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1123

"(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 com;^ pliance 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 (e) of this section, rules and regulations of the Office of Personnel Management. "(b)(1) Any member of the Merit Systems Protection Board, the Special Counsel, any administrative law judge appointed by the Board under section 3105 of this title, and any employee of the Board desig- 5 USC 3105. nated by the Board may administer oaths, examine witnesses, take depositions, and receive evidence. "(2) 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 Subpenas. 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. "(3) Witnesses (whether appearing voluntarily or under subpena) Witnesses, shall be paid the same fee and mileage allowances which are paid subpenaed witnesses in the courts of the United States. "(c) In the case of contumacy or failure to obey a subpena issued under subsection (b)(2) of this section, the United States district court for the judicial district in which the person to whom the subpena 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)(1) In any proceeding under subsection (a)(1) of this section, 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. u.^,,- v ' "(2) In enforcing compliance with any order under subsection (a) (2) of this section, 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. "(3) In carrying out any study under subsection (a)(3) of this section, 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 and may require additional reports from other agencies as needed.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1178

 92 STAT. 1124

Ante, p. 1119.

Ante, p. 1114.

.mwsQik-

Regulations. Publication in Federal Register.

5 USC 3324. Post, p. 1161.

PUBLIC LAW 95-454—OCT. 13, 1978 "(e)(1) At any time after the effective date of any rule or regulation issued by the Director in carrying out functions under section 1103 of this title, 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) of this title; 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) of this title. "(3)(A) 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. "(B) Any review conducted by the Board pursuant to this subsection shall be limited to determining— "(i) the validity on its face of the provision under review; and "(ii) w'hether the provision under review has been validly implemented. "(C) The Board shall require any agency.— "(i) 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 "(ii) 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. "(f) The Board may delegate the performance of any of its administrative fimctions under this title to any employee of the Board. "(g) 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. " (h) 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. "(i) 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 of this title).

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1179

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1125

"(j) 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 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11). " (k) 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. "(a)(1) 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. "(2) If the Special Counsel terminates any investigation under paragraph (1) of this subsection, the Special Counsel shall prepare and transmit to any person on whose allegation the investigation was initiated a written statement notifying the person of the termination of the investigation and the reasons therefor. "(3) In addition to authority granted under paragraph (1) of this subsection, the Special Counsel may, in the absence of an allegation, conduct an investigation for the purpose of determining Avhether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken. "(b)(1) In any case involving— "(A) any disclosure of information by an employee or applicant for employment which the employee or applicant reasonably believes evidences— " (i) a violation of any law, rule, or regulation; or "(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; if the disclosure is not specifically prohibited by law and if the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or "(B) a disclosure by an employee or applicant for employment to the Special Counsel of the Merit Systems Protection Board, 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 or applicant reasonably believes evidences— " (i) a violation of any law, rule, or regulation; or "(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; the identity of the employee or applicant may not be disclosed without the consent of the employee or applicant during any investigation under subsection (a) of this section or under paragraph (3) of this subsection, unless the Special Counsel determines that the disclosure of the identity of the employee or applicant is necessary in order to carry out the functions of the Special Counsel. "(2) Whenever the Special Counsel receives information of the type described in paragraph (1) of this subsection, the Special Counsel shall promptly transmit such information to the appropriate agency head.
 * § 1206. Authority and responsibilities of the Special Counsel

Recommendations, submittal to President and Congress.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1180

 92 STAT. 1126

^ Investigation. Written report.

" ^

PUBLIC LAW 95-454--0CT. 13, 1978 "(3)(A) In the case of information received by the Special Counsel under paragraph (1) of this section, if, after such review as the Special Counsel determines practicable (but not later than 15 days after the receipt of the information), the Special Counsel determines that there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to the public health or safety, the Special Counsel may, to the extent provided in subparagraph (B) of this paragraph, require the head of the agency to— "(i) conduct an investigation of the information and any related matters transmitted by the Special Counsel to the head of the agency; and "(ii) submit a written report setting forth the findings of the head of the agency within 60 days after the date on which the information is transmitted to the head of the agency or within any longer period of time agreed to in writing by the Special Counsel. "(B) The Special Counsel may require an agency head to conduct an investigation and submit a written report under subparagraph (A) of this paragraph only if the information was transmitted to the Special Counsel by— "(i) any employee or former employee or applicant for employment in the agency which the information concerns; or " (ii) any employee who obtained the information in connection with the performance of the employee's duties and responsibilities. "(4) Any report required under paragraph (3)(A) of this subsection shall be reviewed and signed by the head of the agency and shall include—• "(A) a summary of the information with respect to which the investigation was initiated; " (B) a description of the conduct of the investigation; "(C) a summary of any evidence obtained from the investigation; "(D) a listing of any violation or apparent violation of any law, rule, or regulation; and " (E) a description of any corrective action taken or planned as a result of the investigation, such as— "(i) changes m agency rules, regulations, or practices; " (ii) the restoration of any aggrieved employee; "(iii) disciplinary action against any employee; and "(iv) referral to the Attorney General of any evidence of a criminal violation. " (5)(A) Any such report shall be submitted to the Congress, to the President, and to the Special Counsel for transmittal to the complainant. Whenever the Special Counsel does not receive the report of the agency head within the time prescribed in paragraph (3)(A)(ii) of this subsection, the Special Counsel may transmit a copy of the information which was transmitted to the agency head to the President and to the Congress together with a statement noting the failure of the head of the agency to file the required report. "(B) In any case in which evidence of a criminal violation obtained by an agency in an investigation under paragraph (3) of this subsection is referred to the Attorney General— "(i) the report shall not be transmitted to the complainant; and

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1181

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1127

!

"(ii) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral. "(6) Upon receipt of any report of the head of any agency required under paragraph (3)(A) (ii) of this subsection, the Special Counsel shall review the report and determine whether— "(A) the findings of the head of the agency appear reasonable; and "(B) the agency's report under paragraph (3)(A) (ii) of this subsection contains the information required under paragraph (4) of this subsection. "(7) Whenever the Special Counsel transmits any information to the head of the agency under paragraph (2) of this subsection but does not require an investigation under paragraph (3) of this subsection, the head of the agency shall, within a reasonable time after the information was transmitted, inform the Special Counsel, in writing, of what action has been or is to be taken and when such action will be completed. The Special Counsel shall inform the complainant of the report of the agency head., "(8) Except as specifically authorized under this subsection, the provisions of this subsection shall not be considered to authorize disclosure of any information by any agency or any person which is— "(A) specifically prohibited from disclosure by any other provision of law; or "(B) specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. "(9) In any case under subsection (b)(1)(B) of this section involving foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order, the Special Counsel shall transmit such information to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate. " (c)(1)(A) If, in connection with any investigation under this section, 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, and may report the determination, findings, and recommendations to the President. The Special Counsel may include in the report recommendations as to what corrective action should be taken. "(B) If, after a reasonable period, the agency has not taken the corrective action recommended, the Special Counsel may request the Board to consider the matter. The Board may order such corrective action as the Board considers appropriate, after opportunity for comment by the agency concerned and the Office of Personnel Management. "(2)(A) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that a criminal violation by an employee 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. "(B) 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 may proceed with any investigation or proceeding instituted under

Infonnation, transmittal to congressional committees.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1182

 92 STAT. 1128

Public list.

Reports.

Certifications.

5 USC 7321. 5 USC 1501 et seq.

5 USC 552.

PUBLIC LAW 95-454—OCT. 13, 1978 this section notwithstanding that the alleged violation has been reported to the Attorney General. "(3) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred which is not referred to in paragraph (1) or (2) of this subsection, the violation shall be reported to the head of the agency involved. The Special Counsel shall require, within 30 days of the receipt of the report by the agency, a certification by the head of the agency which states— " (A) that the head of the agency has personally reviewed the report; and "(B) what action has been, or is to be, taken, and when the action will be completed. " (d) The Special Counsel shall maintain and make available to the public a list of noncriminal matters referred to heads of agencies under subsections (b)(3)(A) and (c)(3) of this section, together with— "(1) reports by the heads of agencies under subsection (b)(3) (A) of this section, in the case of matters referred under subsection (b); and "(2) certifications by heads of agencies under subsection (c) (3), in the case of matters referred under subsection (c). The Special Counsel shall take steps to ensure that any such public list 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. "(e)(1) In addition to the authority otherwise provided in this section, the Special Counsel shall, except as provided in paragraph (2) of this subsection, conduct an investigation of any allegation concerning— "(A) political activity prohibited under subchapter III of chapter 73 of this title, relating to political activities by Federal employees; "(B) political activity prohibited under chapter 15 of this title, relating to political activities by certain State and local officers and employees; "(C) arbitrary or capricious withholding of information prohibited under section 552 of this title, except that the Special Counsel shall make no investigation under this subsection of any withholding of foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order; " (D) activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decisionmaking; and " (E) 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. "(2) The Special Counsel shall make no investigation of any allegation of any prohibited activity referred to in paragraph (1)(D) or (1)(E) of this subsection if the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure. "(f) During any investigation initiated under this section, no disciplinary action shall be taken against any employee for any alleged

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1183

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1129

prohibited activity under investigation or for any related activity without the approval of the Special Counsel. "(g)(1) Except as provided in paragraph (2) of this subsection, if the Special Counsel determines that disciplinary action should be taken against any employee— " (A) after any investigation under this section, or "(B) on the basis of any knowing and willful refusal or failure by an employee to comply with an order of the Merit Systems Protection Board, the Special Counsel shall prepare a written complaint against the employee containing his determination, together with a statement of supporting facts, and present the complaint and statement to the employee and the Merit Systems Protection Board in accordance with section 1207 of this title. "(2) 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 paragraph (1) of this subsection, together with any response by the employee, shall be presented to the President for appropriate action in lieu of being presented under section 1207 of this title. ,..,, "(h) If the Special Counsel believes there is a pattern of prohibited personnel practices and such practices involve matters which are not otherwise appealable to the Board under section 7701 of this title, the Post, p. 1138. Special Counsel may seek corrective action by filing a written complaint with the Board against the agency or employee involved and the Board shall order such corrective action as the Board determines necessary. " (i) The Special Counsel may as a matter of right interv^ene 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 and the Special Counsel shall not have any right of judicial review in connection with such intervention. ^,^, " (J)(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 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 of this title). 5 USC 3324. "(k) The Special Counsel may prescribe regulations relating to the Post, p. 1161. receipt and investigation of matters under the jurisdiction of the Spe- Regulations. cial Counsel. Such regulations shall be published in the Federal Publication in Federal Register. Eegister. "(1) The Special Counsel shall 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 of this title). 5 USC 1501 et "(m) The Special Counsel shall submit an annual report to the Con- seq., 7321. gress on the activities of the Special Counsel, including the number, Report to types, and disposition of allegations of prohibited personnel practices Congress. filed with it, investigations conducted by it, and actions initiated by it before the Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this section, and the actions taken by the agencies as a result of the reports or recom-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1184

 92 STAT. 1130

5 USC 1207.

5 USC 3105.

Final order.

^ 5 USC 1501 et seq. 5 USC 1208.

'^'

PUBLIC LAW 95-454—OCT. 13, 1978

mendations. The report required by this subsection shall include whatever recommendations for legislation or other action by Congress the Special Counsel may deem appropriate. "§ 1207. Hearings and decisions on complaints filed by the Special Counsel "(a) Any employee against whom a complaint has been presented to the Merit Systems Protection Board under section 1206(g) of this title is entitled to— "(1) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; " (2) be represented by an attorney or other representative; " (3) a hearing before the Board or an administrative law judge appointed under section 3105 of this title and designated by the Board; "(4) have a transcript kept of any hearing under paragraph (3) of this subsection; and " (5) a written decision and reasons therefor at the earliest practicable date, including a copy of any final order imposing disciplinary action. «(b) 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 3^ears, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000. " (c) There may be no administrative appeal from an order of the Board. An employee subject to a final order imposing disciplinary action under this section may obtain judicial review of the order in the United States court of appeals for the judicial circuit in which the emplovee resides or is employed at the time of the action. "(d) In the case of any State or local officer or employee under chapter 15 of this title, the Board shall consider the case in accordance with the provisions of such chapter. «§ 1208. Stays of certain personnel actions "(a)(1) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 15 calendar 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. "(2) Any member of the Board requested by the Special Counsel to order a stay under paragraph (1) of this subsection shall order such stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate. " (3) Unless denied under paragraph (2) of this subsection, any stay under this subsection 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) Any member of the Board may, on the request of the Special Counsel, extend the period of any stay ordered under subsection (a) of this section for a period of not more than 30 calendar days. "(c) The Board may extend the period of any stay granted under subsection (a) of this section for any period which the Board considers appropriate, but only if the Board concurs in the determination of the Special Counsel under such subsection, after an opportunity is provided for oral or written comment by the Special Counsel and the agency involved.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1185

 PUBLIC LAW 95-454—OCT. 13, 1978 "§ 1209. Information "(a) 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. "(b) 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.". (b) Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act 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). (c)(1) Section 5314(17) of title 5, United States Code, is amended b j striking out "Chairman of the United States Civil Service Commission" and inserting in lieu thereof "Chairman of the Merit Systems Protection Board". (2) Section 5315 (66) 9f such title is amended by striking out "Members, United States Civil Service Commission" and inserting in lieu thereof "Members, Merit Systems Protection Board". (3) Section 5315 of such title is further amended by adding at the end thereof the following new paragraph: "(123) Special Counsel of the Merit Systems Protection Board.". (4) Paragraph (99) of section 5316 of such title is hereby repealed. (d) The table of chapters for part II of title 5, United States Code, is amended by inserting after the item relating to chapter 11 the following new item: "12. Merit Systems Protection Board and Special Counsel 1201".

92 STAT. 1131 5 USC 1209.

Report to President and Congress,

5 USC 1201 note,

5 USC 5315.

5 USC 5316.

PERFORMANCE APPRAISAL

SEC. 203. (a) Chapter 43 of title 5, United States Code, is amended to read as follows: "CHAPTER 43—PERFORMANCE APPRAISAL "SUBCHAPTER I

GENERAL PROVISIONS

"Sec.

"4301. "4302. "4303. "4304. "4305.

Definitions. Establishment of performance appraisal systems. Actions based on unacceptable performance. Responsibilities of Office of Personnel Management. Regulations.

"§4301. Definitions "For the purpose of this subchapter— "(1) 'agency'means— "(A) an Executive agency;

39-194 O—80—pt. 1

75: QL3

5 USC 4501.

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text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1186

 92 STAT. 1132 -M^l >g:y 5

.sK««

•

38 USC 4101 et

5 USC 4302.

,^,... •^ ' '"'^

PUBLIC LAW 95-454—OCT. 13, 1978 " (B) the Administrative Office of the United States Courts; and " (C) the Government P r i n t i n g Office; but does not include— " (i) a Government corporation; " ( i i) the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, or any Executive agency or unit thereof which is designated by the President and the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or " ( i i i) the General Accounting Office; " (2) 'employee' means an individual employed in or under an agency, but does not include— " (A) an employee outside the United States who is paid in accordance with local native prevailing wage rates for the area in which employed; " (B) an individual in the Foreign Service of the United States; " (C) a physician, dentist, nurse, or other employee in the Department of Medicine and Surgery, Veterans' Administration whose pay is fixed under chapter 73 of title 3 8;

"(D) an administrative law judge appointed under section 3105 of this title; " (E) an individual in the Senior Executive Service; " (F) an individual appointed by the President; or "(G) an individual occupying a position not in the competitive service excluded from coverage of this subchapter by regulations of the Office of Personnel Management; and "(3) Hmacceptable performance' means performance of an employee which fails to meet established performance standards in one or more critical elements of such employee's position. "(a) Each agency shall develop one or more performance appraisal systems which— "(1) provide for periodic appraisals of job performance of employees; "(2) encourage employee participation in establishing performance standards; and "(3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees; "(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for— "(1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system; "(2) as soon as practicable, but not later than October 1, 1981, with respect to initial appraisal periods, and thereafter at the . beginning of each following appraisal period, communicating to each employee the performance standards and the critical elements of the employee's position; "(3) evaluating each employee during the appraisal period on such standards;
 * '§ 4302. Establishment of performance appraisal systems

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1187

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1133

"(4) recognizing and rewarding employees whose performance so warrants; "(5) assisting employees in improving unacceptable performance; and " (6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. "§ 4303. Actions based on unacceptable performance 5 USC 4303. "(a) Subject to the provisions of this section, an agency may reduce Removal or reduction in in grade or remove an employee for unacceptable performance. "(b)(1) An employee whose reduction m grade or removal is pro- grade. posed under this section is entitled to— "(A) 30 days' advance written notice of the proposed action Notice. which identifies— "(i) specific instances of unacceptable performance by the employee on which the proposed action is based; and "(ii) the critical elements of the employee's position involved in each instance of unacceptable performance; Representation. "(B) be represented by an attorney or other representative; "(C) a reasonable time to answer orally and in writing; and Written decision. "(D) a written decision which— "(i) in the case of a reduction in grade or removal under this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or removal is based, and "(ii) unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action. "(2) An agency may, under regulations prescribed by the head of Extension of such agency, extend the notice period under subsection (b)(1)(A) of notice. this section for not more than 30 days. An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management. "(c) The decision to retain, reduce in grade, or remove an employee— "(1) shall be made within 30 days after the date of expiration of the notice period, and "(2) in the case of a reduction in grade or removal, may be based only on those instances of unacceptable performance by the employee— "(A) which occurred during the 1-year period ending on the date of the notice under subsection (b)(1)(A) of this section in connection with the decision; and "(B) for which the notice and other requirements of this section are complied with. "(d) If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b)(1)(A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee. "(e) Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems ProtecPost, p. 1138. tion Board under section 7701 of this title.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1188

 92 STAT. 1134

5 USC 3321.

V,

,.>,

5 USC 4304. Technical assistance. Review of performance appraisal system.

J,.,,,..,,,..

5 USC 4305.

/

PUBLIC LAW 95-454—OCT. 13, 1978 "(f) This section does not apply to— ' "(1) the reduction to the grade previously held of a supervisor or manager who has not completed the probationary period under section 3321(a)(2) of this title, "(2) the reduction in grade or removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less, or "(3) the reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions. "§4304. Responsibilities of the Office of Personnel Management "(a) The Office of Personnel Management shall make technical assistance available to agencies in the development of performance appraisal systems. (b)(1) The Office shall review each performance appraisal system developed by any agency under this section and determine whether the performance appraisal system meets the requirements of this subchapter. "(2) The Comptroller General shall from time to time review on a selected basis performance appraisal systems established under this subchapter to determine the extent to which any such system meets the requirements of this subchapter and shall periodically report its findings to the Office and to the Congress. " (3) If the Office determines that a system does not meet the requirements of this subchapter (including regulations prescribed under section 4305), the Office shall direct the agency to implement an appropriate system or to correct operations under the system, and any such agency shall take any action so required. «§ 4305. Regulations "The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.". (b) The item relating to chapter 43 in the chapter analysis for part Til of title 5, United States Code, is amended by striking out "Performance Rating" and inserting in lieu thereof "Performance Appraisal". ADVERSE ACTIONS

SEC. 204. (a) Chapter 75 of title 5, United States Code, is amended by striking out subchapters I, II, and III and inserting in lieu thereof the following: "SUBCHAPTER I—SUSPENSION FOR 14 DAYS OR LESS 5 USC 7501.

Mii

«§ 7501. Definitions "For the purpose of this subchapter— "(1) 'employee' means an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; and "(2) 'suspension' means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay. >'} s»'-,.;ti.i.i« n i

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1189

 PUBLIC LAW 95-454-OCT. 13, 1978

92 STAT. 1135

«§ 7502. Actions covered "This subchapter applies to a suspension for 14 days or less, but does not apply to a suspension under section 7521 or 7532 of this title or any action initiated under section 1206 of this title. ^ _ "§ 7503. Cause and procedure "(a) Under regulations prescribed by the Office of Personnel Management, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service (including discourteous conduct to the public confirmed by an immediate supervisor's report of four such instances within any one-year period or any other pattern of discourteous conduct). "(b) An employee against whom a suspension for 14 days or less is proposed is entitled to— "(1) an advance written notice stating the specific reasons for the proposed action; "(2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer: "(3) be represented by an attorney or other representative; and "(4) a written decision and the specific reasons therefor at the earliest practicable date. "(c) Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decision and reasons therefor, and any order effecting the suspension, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee's request. "§7504. Regulations "The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.

5 USC 7502. Post, p. 1137. 5 USC 7532. Ante, p. 1125.

Notice,

Representation. Availability of information.

5 USC 7504.

"SUBCHAPTER II—REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS "§7511. Definitions; application " (a) For the purpose of this subchapter— "(1) 'employee'means— " (A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and "(B) a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions; " (2) 'suspension' has the meaning as set forth in section 7501(2) of this title; "(3) 'grade' means a level of classification under a position classification system;

5 USC 7511.

AnU, p. 1134.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1190

 92 STAT. 1136 tioe'. l>c 3 -c;

PUBLIC LAW 95-454—OCT. 13, 1978

" (4) 'pay' means the rate of basic pay fixed by law or administrative action for the position held by an employee; and "(5) 'furlough' means the placing of an employee in a temporary status without duties and pay because of lack of work or tii.;J..;... funds or other nondisciplinary reasons. "(b) This subchapter does not apply to an employee— "(1) whose appointment is made by and with the advice and consent of the Senate; " (2) whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating char. "(A) the Office of Personnel Management for a position ^g.) that it has excepted from the competitive service; or "(B) the President or the head of an agency for a position . - ' T - k j"* which is excepted from the competitive service by statute. "(c) The Office may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office. 5 USC 7512. "§ 7512. Actions covered "This subchapter applies to— "(1) a removal; " (2) a suspension for more than 14 days; •'y* "(3) a reduction in grade; '•'"'•-'•'• " (4) a reduction in pay; and " (5) a furlough of 30 days or less; but does not apply to— 5 USC 7532. "(A) a suspension or removal under section 7532 of this title, 5 USC 3502. "(B) a reduction-in-force action under section 3502 of this title, "(C) the reduction in grade of a supervisor or manager who has not completed the probationary period under section 3321(a) Post, p. 1146. (2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager, Ante, p. 1133. "(D) a reduction in grade or removal under section 4303 of this title, or Ante, p. 1125, " (E) an action initiated under section 1206 or 7521 of this title. Post, p. 1137. "§7513w Cause and procedure 5 USC 7513. "(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service. "(b) An employee against whom an action is proposed is entitled to— Notice. "(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; " (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; Representation. " (3) be represented by an attorney or other representative; and "(4) a written decision and the specific reasons therefor at the earliest practicable date. Hearing. "(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.
 * acter by—

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text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1191

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1137

"(d) An employee against whom an action is taken under this section IS entitled to appeal to the Merit Systems Protection Board under section 7701 of this title. ^ "(e) Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee's request. "§ 7514. Regulations "The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter, except as it concerns any matter with respect to which the Merit Systems Protection Board may prescribe regulations.".

Post, p. 1138. Availability of information,

5 USC 7514. ' i.--

"SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES "§ 7521. Actions against administrative law judges "(a) An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board. "(b) The actions covered by this section are— "(1) a removal; "(2) a suspension; "(3) a reduction in grade; "^4) a reduction in pay; and " (5) a furlough of 30 days or less; but do not include— "(A) a suspension or removal under section 7532 of this title; "(B) a reduction-in-force action under section 3502 of this title; or "(C) any action initiated under section 1206 of this title.". (b) So much of the analysis for chapter 75 of title 5, United States Code, as precedes the items relating to subchapter IV is amended to read as follows: ,

5 USC 7521. 5 USC 3105. .Xi '

5 USC 7532. 5 USC 3502. Ante, p. 1125.

.iMl. q -arK

"CHAPTER 75—ADVERSE ACTIONS "Sec.

"7501. "7502. "7503. "7504.

"SUBCHAPTER I—SUSPENSION OF 14 DAYS OB LESS Definitions. Actions covered. Cause and procedure. Regulations.

•

"SUBCHAPTER II—REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS "7511. "7512. "7513. "7514.

Definitions; application. Actions covered. Cause and procedure. Regulations.

i s

M'l'

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text:
Page:United States Statutes at Large Volume 92 Part 1.djvu/1192

 92 STAT. 1138

PUBLIC LAW 95-454—OCT. 13, 1978 "SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES

-

"7521. Actions against administrative law judges.". APPEALS SEC. 205. Chapter 77 of title 5, United States Code, is amended to read as follows:

"CHAPTER 77--APPEALS

5 USC 7701.

Hearing. Representation.

5 USC 3105.

Copies of decisions.

Ante, p. 1133.

Ante, p. 1114.

"Sec. "7701. Appellate procedures. "7702. Actions involving discrimination. "7703. Judicial review of decisions of the Merit Systems Protection Board. "§7701. Appellate procedures " (a) A n employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the B o a r d under any law, rule, or regulation. A n appellant shall have the right— " (1) to a hearing for which a transcript will be k e p t; and " (2) to be represented by an attorney^ or other representative. Appeals shall be processed in accordance with regulations prescribed by the Board. " (b) The B o a r d may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 of this title or other employee of the Board d e s i ^ a t e d by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge. The Board, administrative law ]udge, or other employee (as the case may be) shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a) (1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Management. " (c)(1) Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency's decision— " (A) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or " (B) in any other case, is supported by a preponderance of the evidence. " (2) Notwithstanding paragraph (1), the agency's decision may not be sustained under subsection (b) of this section if the employee or applicant for employment— " (A) shows harmful error in the application of the agency's procedures in arriving at such decision; " (B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or " (C) shows that the decision was not in accordance with law. " (d)(1) I n any case in which— " (A) the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the Office of Personnel ^lanagement is at issue in any proceeding under this section; and " (B) the Director of the Office of Personnel Management is of the opinion that an erroneous decision would have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office;

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