U.S. Code Provisions Revised by the
Whistleblower Protection Enhancement Act of 2012
The following is the text of sections of the
United States Code that were affected by the passage of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-119, 126
Stat. 1465, which became effective on December 27,
2012. Although the following sections are not official versions
of
the U.S. Code, we believe they are accurate as to the contents of the
relevant statutory sections as revised by the WPEA. If any
errors
are noted, please bring them to the attention of the Clerk of the
Board at mspb@mspb.gov. So that the reader can understand how
the WPEA changed the law, the portions that are new or revised by
the WPEA are rendered in blue text.
To access other sections of the United States Code, we recommend the Search Page maintained by the Office of Law Revision Counsel of the U.S. Hourse of Representatives, or the Search Page
maintained by Cornell University's Legal Information Institute.
For example, if the reader wanted to access 5 U.S.C. § 7701 using
either of these search forms, he or she would simply enter "5" for the
Title number and "7701" for the Section number.
Contents (Title 5, United States
Code):
§ 1204. Powers and functions of
the Merit Systems Protection Board
§ 1212. Powers and
functions of the Office of Special Counsel
§ 1214.
Investigation of prohibited personnel practices; corrective
action
§ 1215. Disciplinary action
§ 1221.
Individual right of action in certain reprisal cases
§ 2302.
Prohibited personnel practices
§ 2304. Prohibited
personnel practices affecting the Transportation Security
Administration
§ 7703. Judicial review of decisions of
the Merit Systems Protection Board
Chapter 12—Merit
Systems Protection Board, Office of Special Counsel, and Employee
Right of Action
§ 1204.
Powers and functions of the Merit Systems Protection Board
(a) The Merit Systems Protection Board
shall -
(1) hear,
adjudicate, or provide for the hearing or adjudication, of all
matters within the jurisdiction of the Board under this title,
chapter 43 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;
(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 compliance 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 (f), rules and regulations of the Office of
Personnel Management.
(b)(1) Any member of the Merit Systems
Protection Board, any administrative law judge appointed by the Board
under section 3105 of this title, and any employee of the Board
designated by the Board may administer oaths, examine witnesses, take
depositions, and receive evidence.
(2) Any member of
the Board, any administrative law judge appointed by the Board under
section 3105, and any employee of the Board designated by the Board
may, with respect to any individual -
(A) issue subpoenas
requiring the attendance and presentation of testimony of any such
individual, and the production of documentary or other evidence from
any place in the United States, any territory or possession of the
United States, the Commonwealth of Puerto Rico, or the District of
Columbia; and
(B) order the taking
of depositions from, and responses to written interrogatories by, any
such individual.
(3) Witnesses
(whether appearing voluntarily or under subpoena) shall be paid the
same fee and mileage allowances which are paid subpoenaed witnesses
in the courts of the United States.
(c) In the case of contumacy or failure
to obey a subpoena issued under subsection (b)(2)(A) or section
1214(b), upon application by the Board, the United States district
court for the district in which the person to whom the subpoena 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) A subpoena referred to in subsection
(b)(2)(A) may, in the case of any individual outside the territorial
jurisdiction of any court of the United States, be served in such
manner as the Federal Rules of Civil Procedure prescribe for service
of a subpoena in a foreign country. To the extent that the courts of
the United States can assert jurisdiction over such individual, the
United States District Court for the District of Columbia shall have
the same jurisdiction to take any action respecting compliance under
this subsection by such individual that such court would have if such
individual were personally within the jurisdiction of such court.
(e)(1)(A) In any proceeding under
subsection (a)(1), 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.
(B)(i) The Merit
Systems Protection Board may, during an investigation by the Office
of Special Counsel or during the pendency of any proceeding before
the Board, issue any order which may be necessary to protect a
witness or other individual from harassment, except that an agency
(other than the Office of Special Counsel) may not request any such
order with regard to an investigation by the Office of Special
Counsel from the Board during such investigation.
(ii) An order issued
under this subparagraph may be enforced in the same manner as
provided for under paragraph (2) with respect to any order under
subsection (a)(2).
(2)(A) In enforcing
compliance with any order under subsection (a)(2), 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.
(B) The Board shall
prescribe regulations under which any employee who is aggrieved by
the failure of any other employee to comply with an order of the
Board may petition the Board to exercise its authority under
subparagraph (A).
(3) In carrying out
any study under subsection (a)(3), 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 of Personnel Management and may require additional
reports from other agencies as needed.
(f)(1) At any time after the effective
date of any rule or regulation issued by the Director of the Office
of Personnel Management in carrying out functions under section 1103,
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); 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).
(3) 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.
(4) The Board shall
require any agency -
(A) 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
(B) 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.
(g) The Board may delegate the
performance of any of its administrative functions under this title
to any employee of the Board.
(h) 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.
(i) 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.
(j) 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).
(k) 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 1105 of title 31.
(l) 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.
(m)(1) Except as provided in paragraph
(2) of this subsection, the Board, or an administrative law judge or
other employee of the Board designated to hear a case arising under
section 1215, may require payment by the agency
where the prevailing party was employed or had applied for employment
at the time of the events giving rise to the case of
reasonable attorney fees incurred by an employee or applicant for
employment if the employee or applicant is the prevailing party and
the Board, administrative law judge, or other employee (as the case
may be) determines that payment by the agency is warranted in the
interest of justice, including any case in which a prohibited
personnel practice was engaged in by the agency or any case in which
the agency's action was clearly without merit.
(2) If an employee
or applicant for employment is the prevailing party of a case arising
under section 1215 and the decision is based on a finding of
discrimination prohibited under section 2302(b)(1) of this title, the
payment of attorney fees shall be in accordance with the standards
prescribed under section 706(k) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-5(k)).
§ 1212.
Powers and functions of the Office of Special Counsel
(a) The Office of Special Counsel shall -
(1) in accordance
with section 1214(a) and other applicable provisions of this
subchapter, protect employees, former employees, and applicants for
employment from prohibited personnel practices;
(2) receive and
investigate allegations of prohibited personnel practices, and, where
appropriate -
(A) bring petitions
for stays, and petitions for corrective action, under section 1214;
and
(B) file a complaint
or make recommendations for disciplinary action under section 1215;
(3) receive, review,
and, where appropriate, forward to the Attorney General or an agency
head under section 1213, disclosures of violations of any law, rule,
or regulation, or gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public
health or safety;
(4) review rules and
regulations issued by the Director of the Office of Personnel
Management in carrying out functions under section 1103 and, where
the Special Counsel finds that any such rule or regulation would, on
its face or as implemented, require the commission of a prohibited
personnel practice, file a written complaint with the Board; and
(5) investigate and,
where appropriate, bring actions concerning allegations of violations
of other laws within the jurisdiction of the Office of Special
Counsel (as referred to in section 1216).
(b)(1) The Special Counsel and any
employee of the Office of Special Counsel designated by the Special
Counsel may administer oaths, examine witnesses, take depositions,
and receive evidence.
(2) The Special
Counsel may -
(A) issue subpoenas;
and
(B) order the taking
of depositions and order responses to written interrogatories; in the
same manner as provided under section 1204.
(3)(A) In the case
of contumacy or failure to obey a subpoena issued under paragraph
(2)(A), the Special Counsel may apply to the Merit Systems Protection
Board to enforce the subpoena in court pursuant to section 1204(c).
(B) A subpoena under
paragraph (2)(A) may, in the case of any individual outside the
territorial jurisdiction of any court of the United States, be served
in the manner referred to in subsection (d) of section 1204, and the
United States District Court for the District of Columbia may, with
respect to any such individual, compel compliance in accordance with
such subsection.
(4) Witnesses
(whether appearing voluntarily or under subpoena) shall be paid the
same fee and mileage allowances which are paid subpoenaed witnesses
in the courts of the United States.
(c)(1) Except as provided in paragraph
(2), the Special Counsel may as a matter of right intervene 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.
(2) The Special
Counsel may not intervene in an action brought by an individual under
section 1221, or in an appeal brought by an individual under section
7701, without the consent of such individual.
(d)(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 be made in accordance 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).
(e) The Special Counsel may prescribe
such regulations as may be necessary to perform the functions of the
Special Counsel. Such regulations shall be published in the Federal
Register.
(f) The Special Counsel may 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).
(g)(1) The Special Counsel may not
respond to any inquiry or disclose any information from or about any
person making an allegation under section 1214(a), except in
accordance with the provisions of section 552a of title 5, United
States Code, or as required by any other applicable Federal law.
(2) Notwithstanding
the exception under paragraph (1), the Special Counsel may not
respond to any inquiry concerning an evaluation of the work
performance, ability, aptitude, general qualifications, character,
loyalty, or suitability for any personnel action of any person
described in paragraph (1) -
(A) unless the
consent of the individual as to whom the information pertains is
obtained in advance; or
(B) except upon
request of an agency which requires such information in order to make
a determination concerning an individual's having access to the
information unauthorized disclosure of which could be expected to
cause exceptionally grave damage to the national security.
(h)(1) The Special
Counsel is authorized to appear as amicus curiae in any action
brought in a court of the United States related to section 2302(b)(8)
or (9), or as otherwise authorized by law. In any such action, the
Special Counsel is authorized to present the views of the Special
Counsel with respect to compliance with section2302(b)(8) or (9) and
the impact court decisions would have on the enforcement of such
provisions of law.
(2)
A court of the United States shall grant the application of the
Special Counsel to appear in any such action for the purposes
described under subsection (a).
§ 1214.
Investigation of prohibited personnel practices; corrective action
(a)(1)(A) The Special Counsel shall
receive any allegation of a prohibited personnel practice and shall
investigate the allegation to the extent necessary to determine
whether there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken.
(B) Within 15 days
after the date of receiving an allegation of a prohibited personnel
practice under paragraph (1), the Special Counsel shall provide
written notice to the person who made the allegation that -
(i) the allegation
has been received by the Special Counsel; and
(ii) shall include
the name of a person at the Office of Special Counsel who shall serve
as a contact with the person making the allegation.
(C) Unless an
investigation is terminated under paragraph (2), the Special Counsel
shall -
(i) within 90 days
after notice is provided under subparagraph (B), notify the person
who made the allegation of the status of the investigation and any
action taken by the Office of the Special Counsel since the filing of
the allegation;
(ii) notify such
person of the status of the investigation and any action taken by the
Office of the Special Counsel since the last notice, at least every
60 days after notice is given under clause (i); and
(iii) notify such
person of the status of the investigation and any action taken by the
Special Counsel at such time as determined appropriate by the Special
Counsel.
(D) No later than 10
days before the Special Counsel terminates any investigation of a
prohibited personnel practice, the Special Counsel shall provide a
written status report to the person who made the allegation of the
proposed findings of fact and legal conclusions. The person may
submit written comments about the report to the Special Counsel. The
Special Counsel shall not be required to provide a subsequent written
status report under this subparagraph after the submission of such
written comments.
(2)(A) If the
Special Counsel terminates any investigation under paragraph (1), the
Special Counsel shall prepare and transmit to any person on whose
allegation the investigation was initiated a written statement
notifying the person of -
(i) the termination
of the investigation;
(ii) a summary of
relevant facts ascertained by the Special Counsel, including the
facts that support, and the facts that do not support, the
allegations of such person;
(iii) the reasons
for terminating the investigation; and
(iv) a response to
any comments submitted under paragraph (1)(D).
(B) A written
statement under subparagraph (A) may not be admissible as evidence in
any judicial or administrative proceeding, without the consent of the
person who received such statement under subparagraph (A).
(3) Except in a case
in which an employee, former employee, or applicant for employment
has the right to appeal directly to the Merit Systems Protection
Board under any law, rule, or regulation, any such employee, former
employee, or applicant shall seek corrective action from the Special
Counsel before seeking corrective action from the Board. An employee,
former employee, or applicant for employment may seek corrective
action from the Board under section 1221, if such employee, former
employee, or applicant seeks corrective action for a prohibited
personnel practice described in section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D) from the Special
Counsel and -
(A)(i) the Special
Counsel notifies such employee, former employee, or applicant that an
investigation concerning such employee, former employee, or applicant
has been terminated; and
(ii) no more than 60
days have elapsed since notification was provided to such employee,
former employee, or applicant for employment that such investigation
was terminated; or
(B) 120 days after
seeking corrective action from the Special Counsel, such employee,
former employee, or applicant has not been notified by the Special
Counsel that the Special Counsel shall seek corrective action on
behalf of such employee, former employee, or applicant.
(4) If an employee,
former employee, or applicant seeks a corrective action from the
Board under section 1221, pursuant to the provisions of paragraph
(3)(B), the Special Counsel may continue to seek corrective action
personal to such employee, former employee, or applicant only with
the consent of such employee, former employee, or applicant.
(5) In addition to
any authority granted under paragraph (1), the Special Counsel may,
in the absence of an allegation, conduct an investigation for the
purpose of determining whether there are reasonable grounds to
believe that a prohibited personnel practice (or a pattern of
prohibited personnel practices) has occurred, exists, or is to be
taken.
(b)(1)(A)(i) The Special Counsel may
request any member of the Merit Systems Protection Board to order a
stay of any personnel action for 45 days if the Special Counsel
determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a
prohibited personnel practice.
(ii) Any member of
the Board requested by the Special Counsel to order a stay under
clause (i) shall order such stay unless the member determines that,
under the facts and circumstances involved, such a stay would not be
appropriate.
(iii) Unless denied
under clause (ii), any stay under this subparagraph shall be granted
within 3 calendar days (excluding Saturdays, Sundays, and legal
holidays) after the date of the request for the stay by the Special
Counsel.
(B) The Board may
extend the period of any stay granted under subparagraph (A) for any
period which the Board considers appropriate.
(C) The Board shall
allow any agency which is the subject of a stay to comment to the
Board on any extension of stay proposed under subparagraph (B).
(D) A stay may be
terminated by the Board at any time, except that a stay may not be
terminated by the Board -
(i) on its own
motion or on the motion of an agency, unless notice and opportunity
for oral or written comments are first provided to the Special
Counsel and the individual on whose behalf the stay was ordered; or
(ii) on motion of
the Special Counsel, unless notice and opportunity for oral or
written comments are first provided to the individual on whose behalf
the stay was ordered.
(2)(A)(i) Except as
provided under clause (ii), no later than 240 days after the date of
receiving an allegation of a prohibited personnel practice under
paragraph (1), the Special Counsel shall make a determination whether
there are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken.
(ii) If the Special
Counsel is unable to make the required determination within the
240-day period specified under clause (i) and the person submitting
the allegation of a prohibited personnel practice agrees to an
extension of time, the determination shall be made within such
additional period of time as shall be agreed upon between the Special
Counsel and the person submitting the allegation.
(B) If, in
connection with any investigation, the Special Counsel determines
that there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken which
requires corrective action, the Special Counsel shall report the
determination together with any findings or recommendations to the
Board, the agency involved and to the Office of Personnel Management,
and may report such determination, findings and recommendations to
the President. The Special Counsel may include in the report
recommendations for corrective action to be taken.
(C) If, after a
reasonable period of time, the agency does not act to correct the
prohibited personnel practice, the Special Counsel may petition the
Board for corrective action.
(D) If the Special
Counsel finds, in consultation with the individual subject to the
prohibited personnel practice, that the agency has acted to correct
the prohibited personnel practice, the Special Counsel shall file
such finding with the Board, together with any written comments which
the individual may provide.
(E) A determination
by the Special Counsel under this paragraph shall not be cited or
referred to in any proceeding under this paragraph or any other
administrative or judicial proceeding for any purpose, without the
consent of the person submitting the allegation of a prohibited
personnel practice.
(3) Whenever the
Special Counsel petitions the Board for corrective action, the Board
shall provide an opportunity for -
(A) oral or written
comments by the Special Counsel, the agency involved, and the Office
of Personnel Management; and
(B) written comments
by any individual who alleges to be the subject of the prohibited
personnel practice.
(4)(A) The Board
shall order such corrective action as the Board considers
appropriate, if the Board determines that the Special Counsel has
demonstrated that a prohibited personnel practice, other than one
described in section 2302(b)(8) or section
2302(b)(9)(A)(i), (B), (C), or (D), has occurred, exists, or
is to be taken.
(B)(i) Subject to
the provisions of clause (ii), in any case involving an alleged
prohibited personnel practice as described under section 2302(b)(8)
or section 2302(b)(9)(A)(i), (B), (C), or (D),
the Board shall order such corrective action as the Board considers
appropriate if the Special Counsel has demonstrated that a disclosure
or protected activity described under
section 2302(b)(8) or section 2302(b)(9)(A)(i),
(B), (C), or (D) was a contributing factor in the personnel
action which was taken or is to be taken against the individual.
(ii) Corrective
action under clause (i) may not be ordered if,
after a finding that a protected disclosure was a contributing
factor, the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the
absence of such disclosure.
(c)(1) Judicial review of any final order
or decision of the Board under this section may be obtained by any
employee, former employee, or applicant for employment adversely
affected by such order or decision.
(2) A petition for
review under this subsection shall be filed with such court, and
within such time, as provided for under section 7703(b).
(d)(1) If, in connection with any
investigation under this subchapter, the Special Counsel determines
that there is reasonable cause to believe that a criminal violation
has occurred, the Special Counsel shall report the determination to
the Attorney General and to the head of the agency involved, and
shall submit a copy of the report to the Director of the Office of
Personnel Management and the Director of the Office of Management and
Budget.
(2) In any case in
which the Special Counsel determines that there are reasonable
grounds to believe that a prohibited personnel practice has occurred,
exists, or is to be taken, the Special Counsel shall proceed with any
investigation or proceeding unless -
(A) the alleged
violation has been reported to the Attorney General; and
(B) the Attorney
General is pursuing an investigation, in which case the Special
Counsel, after consultation with the Attorney General, has discretion
as to whether to proceed.
(e) If, in connection with any
investigation under this subchapter, the Special Counsel determines
that there is reasonable cause to believe that any violation of any
law, rule, or regulation has occurred other than one referred to in
subsection (b) or (d), the Special Counsel shall report such
violation to the head of the agency involved. The Special Counsel
shall require, within 30 days after the receipt of the report by the
agency, a certification by the head of the agency which states -
(1) that the head of
the agency has personally reviewed the report; and
(2) what action has
been or is to be taken, and when the action will be completed.
(f) During any investigation initiated
under this subchapter, no disciplinary action shall be taken against
any employee for any alleged prohibited activity under investigation
or for any related activity without the approval of the Special
Counsel.
(g) If the Board orders corrective action
under this section, such corrective action may include -
(1) that the
individual be placed, as nearly as possible, in the position the
individual would have been in had the prohibited personnel practice
not occurred; and
(2) reimbursement
for attorney's fees, back pay and related benefits, medical
costs incurred, travel expenses, any other
reasonable and foreseeable consequential damages, and compensatory
damages (including interest, reasonable expert witness fees, and
costs).
(h) Any corrective
action ordered under this section to correct a prohibited personnel
practice may include fees, costs, or damages reasonably incurred due
to an agency investigation of the employee, if such investigation was
commenced, expanded, or extended in retaliation for the disclosure or
protected activity that formed the basis of the corrective action.
§ 1215.
Disciplinary action
(a)(1) Except as provided in subsection
(b), if the Special Counsel determines that disciplinary action
should be taken against any employee for having -
(A) committed a
prohibited personnel practice,
(B) violated the
provisions of any law, rule, or regulation, or engaged in any other
conduct within the jurisdiction of the Special Counsel as described
in section 1216, or
(C) knowingly and
willfully refused or failed to comply with an order of the Merit
Systems Protection Board, the Special Counsel shall prepare a written
complaint against the employee containing the Special Counsel's
determination, together with a statement of supporting facts, and
present the complaint and statement to the employee and the Board, in
accordance with this subsection.
(2) Any employee
against whom a complaint has been presented to the Merit Systems
Protection Board under paragraph (1) is entitled to -
(A) a reasonable
time to answer orally and in writing, and to furnish affidavits and
other documentary evidence in support of the answer;
(B) be represented
by an attorney or other representative;
(C) a hearing before
the Board or an administrative law judge appointed under section 3105
and designated by the Board;
(D) have a
transcript kept of any hearing under subparagraph (C); and
(E) a written
decision and reasons therefor at the earliest practicable date,
including a copy of any final order imposing disciplinary action.
(3)(A)
A final order of the Board may impose—
(i)
disciplinary action consisting of removal, reduction in grade,
debarment from Federal employment for a period not to exceed 5 years,
suspension, or reprimand;
(ii)
an assessment of a civil penalty not to exceed $1,000; or
(iii)
any combination of disciplinary actions described under clause (i)
and an assessment described under clause (ii).
(B)
In any case brought under paragraph (1) in which the Board finds that
an employee has committed a prohibited personnel practice under
section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D), the Board
may impose disciplinary action if the Board finds that the activity
protected under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or
(D) was a significant motivating factor, even if other factors also
motivated the decision, for the employee's decision to take,
fail to take, or threaten to take or fail to take a personnel action,
unless that employee demonstrates, by preponderance of evidence, that
the employee would
have taken, failed to take, or threatened to take or fail to take the
same personnel action, in the absence of such protected activity.
(4) There may be no
administrative appeal from an order of the Board. An employee subject
to a final order imposing disciplinary action under this subsection
may obtain judicial review of the order by filing a petition therefor
with such court, and within such time, as provided for under section
7703(b).
(5) In the case of
any State or local officer or employee under chapter 15, the Board
shall consider the case in accordance with the provisions of such
chapter.
(b) 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 subsection (a)(1), together with any response of the employee,
shall be presented to the President for appropriate action in lieu of
being presented under subsection (a).
(c)(1) In the case of members of the
uniformed services and individuals employed by any person under
contract with an agency to provide goods or services, the Special
Counsel may transmit recommendations for disciplinary or other
appropriate action (including the evidence on which such
recommendations are based) to the head of the agency concerned.
(2) In any case in
which the Special Counsel transmits recommendations to an agency head
under paragraph (1), the agency head shall, within 60 days after
receiving such recommendations, transmit a report to the Special
Counsel on each recommendation and the action taken, or proposed to
be taken, with respect to each such recommendation.
§ 1221.
Individual right of action in certain reprisal cases
(a) Subject to the provisions of
subsection (b) of this section and subsection 1214(a)(3), an
employee, former employee, or applicant for employment may, with
respect to any personnel action taken, or proposed to be taken,
against such employee, former employee, or applicant for employment,
as a result of a prohibited personnel practice described in section
2302(b)(8) or section 2302(b)(9)(A)(i), (B),
(C), or (D), seek corrective action from the Merit Systems
Protection Board.
(b) This section may not be construed to
prohibit any employee, former employee, or applicant for employment
from seeking corrective action from the Merit Systems Protection
Board before seeking corrective action from the Special Counsel, if
such employee, former employee, or applicant for employment has the
right to appeal directly to the Board under any law, rule, or
regulation.
(c)(1) Any employee, former employee, or
applicant for employment seeking corrective action under subsection
(a) may request that the Board order a stay of the personnel action
involved.
(2) Any stay
requested under paragraph (1) shall be granted within 10 calendar
days (excluding Saturdays, Sundays, and legal holidays) after the
date the request is made, if the Board determines that such a stay
would be appropriate.
(3)(A) The Board
shall allow any agency which would be subject to a stay under this
subsection to comment to the Board on such stay request.
(B) Except as
provided in subparagraph (C), a stay granted under this subsection
shall remain in effect for such period as the Board determines to be
appropriate.
(C) The Board may
modify or dissolve a stay under this subsection at any time, if the
Board determines that such a modification or dissolution is
appropriate.
(d)(1) At the request of an employee,
former employee, or applicant for employment seeking corrective
action under subsection (a), the Board shall issue a subpoena for the
attendance and testimony of any person or the production of
documentary or other evidence from any person if the Board finds that
the testimony or production requested is not unduly burdensome and
appears reasonably calculated to lead to the discovery of admissible
evidence.
(2) A subpoena under
this subsection may be issued, and shall be enforced, in the same
manner as applies in the case of subpoenas under section 1204.
(e)(1) Subject to the provisions of
paragraph (2), in any case involving an alleged prohibited personnel
practice as described under section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D), the Board shall
order such corrective action as the Board considers appropriate if
the employee, former employee, or applicant for employment has
demonstrated that a disclosure described under section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing
factor in the personnel action which was taken or is to be taken
against such employee, former employee, or applicant. The employee
may demonstrate that the disclosure or
protected activity was a contributing factor in the personnel
action through circumstantial evidence, such as evidence that -
(A) the official
taking the personnel action knew of the disclosure or
protected activity; and
(B) the personnel
action occurred within a period of time such that a reasonable person
could conclude that the disclosure or protected
activity was a contributing factor in the personnel action.
(2) Corrective
action under paragraph (1) may not be ordered if,
after a finding that a protected disclosure was contributing factor,
the agency demonstrates by clear and convincing evidence that it
would have taken the same personnel action in the absence of such
disclosure.
(f)(1) A final order or decision shall be
rendered by the Board as soon as practicable after the commencement
of any proceeding under this section.
(2) A decision to
terminate an investigation under subchapter II may not be considered
in any action or other proceeding under this section.
(3) If, based on
evidence presented to it under this section, the Merit Systems
Protection Board determines that there is reason to believe that a
current employee may have committed a prohibited personnel practice,
the Board shall refer the matter to the Special Counsel to
investigate and take appropriate action under section 1215.
(g)(1)(A) If the Board orders corrective
action under this section, such corrective action may include -
(i) that the
individual be placed, as nearly as possible, in the position the
individual would have been in had the prohibited personnel practice
not occurred; and
(ii) back pay and
related benefits, medical costs incurred, travel expenses, any
other reasonable and foreseeable consequential damages, and
compensatory damages (including interest, reasonable expert witness
fees, and costs).
(B) Corrective
action shall include attorney's fees and costs as provided for under
paragraphs (2) and (3).
(2) If an employee,
former employee, or applicant for employment is the prevailing party
before the Merit Systems Protection Board, and the decision is based
on a finding of a prohibited personnel practice, the agency involved
shall be liable to the employee, former employee, or applicant for
reasonable attorney's fees and any other reasonable costs incurred.
(3) If an employee,
former emloyee,1 or applicant for employment is the
prevailing party in an appeal from the Merit Systems Protection
Board, the agency involved shall be liable to the employee, former
employee, or applicant for reasonable attorney's fees and any other
reasonable costs incurred, regardless of the basis of the decision.
[Footnote 1: So in original. Probably should be ''employee,''.]
(4)
Any corrective action ordered under this section to correct a
prohibited personnel practice may include fees, costs, or damages
reasonably incurred due to an agency investigation of the employee,
if such investigation was commenced, expanded, or extended in
retaliation for the disclosure or protected activity that formed the
basis of the corrective action.
(h)(1) An employee, former employee, or
applicant for employment adversely affected or aggrieved by a final
order or decision of the Board under this section may obtain judicial
review of the order or decision.
(2) A petition for
review under this subsection shall be filed with such court, and
within such time, as provided for under section 7703(b).
(i) Subsections (a) through (h) shall
apply in any proceeding brought under section 7513(d) if, or to the
extent that, a prohibited personnel practice as defined in section
2302(b)(8) or section 2302(b)(9)(A)(i), (B),
(C), or (D) is alleged.
(j) In determining the appealability of
any case involving an allegation made by an individual under the
provisions of this chapter, neither the status of an individual under
any retirement system established under a Federal statute nor any
election made by such individual under any such system may be taken
into account.
CHAPTER
23—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).
(2) For the purpose
of this section -
(A) ''personnel
action'' means -
(i) an appointment;
(ii) a promotion;
(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, 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;
(x) a decision to
order psychiatric testing or examination;
(xi) the
implementation or enforcement of any nondisclosure policy, form, or
agreement; and
(xii)
any other significant change in duties, responsibilities, or working
conditions; with respect to an employee in, or applicant for, a
covered position in an agency, and in the case of an alleged
prohibited personnel practice described in subsection (b)(8), an
employee or applicant for employment in a Government corporation as
defined in section 9101 of title 31;
(B) ''covered
position'' means, with respect to any personnel action, 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 any position which is, prior to the personnel action -
(i) excepted from
the competitive service because of its confidential,
policy-determining, policy-making, or policy-advocating character; or
(ii) 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 and the Government Printing Office, but does not
include -
(i) a Government
corporation, except in the case of an alleged prohibited personnel
practice described under subsection (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D);
(ii)(I)
the Federal Bureau of Investigation, the Central Intelligence Agency,
the Defense Intelligence Agency, the National Geospatial-Intelligence
Agency, the National Security Agency, the Office of the Director of
National Intelligence, and the National Reconnaissance Office; and
(II)
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, provided that the
determination be made prior to a personnel action; or
(iii) the General
Accountability Office; and
(D)
''disclosure'' means a formal or informal
communication or transmission, but does not include a communication
concerning policy decisions that lawfully exercise discretionary
authority unless the employee or applicant providing the disclosure
reasonably believes that the disclosure evidences—
(i)
any violation of any law, rule, or regulation; or
(ii)
gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety.
(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 Rights 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;
(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, 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;
(5) 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, or threaten to take or fail to take, a personnel action with
respect to any employee or applicant for employment because of -
(A) any disclosure
of information by an employee or applicant which the employee or
applicant reasonably believes evidences -
(i) any
violation of any law, rule, or regulation, or
(ii) gross
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) any disclosure
to the Special Counsel, 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) any
violation (other than a violation of this
section) of any law, rule, or regulation, or
(ii) gross
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, or threaten to take or fail to take, any personnel action
against any employee or applicant for employment because of -
(A) the
exercise of any appeal, complaint, or grievance right granted by any
law, rule, or regulation—
(i)
with regard to remedying a violation of paragraph (8); or
(ii)
other than with regard to remedying a violation of paragraph (8);
(B) testifying for
or otherwise lawfully assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with
or disclosing information to the Inspector General of an agency, or
the Special Counsel, in accordance with applicable provisions of law;
or
(D) for refusing to
obey an order that would require the individual to violate a law;
(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;
(11) (A) knowingly
take, recommend, or approve any personnel action if the taking of
such action would violate a veterans' preference requirement;
(B) knowingly fail
to take, recommend, or approve any personnel action if the failure to
take such action would violate a veterans' preference
requirement;
(12) 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; or
(13)
implement or enforce any nondisclosure policy, form, or agreement, if
such policy, form, or agreement does not contain the following
statement: ''These provisions are consistent with and do
not supersede, conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by existing statute or
Executive order relating to (1) classified information, (2)
communications to Congress, (3) the reporting to an Inspector General
of a violation of any law, rule, or regulation, or mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety, or (4) any other
whistleblower protection. The definitions, requirements, obligations,
rights, sanctions, and liabilities created by controlling Executive
orders and statutory provisions are incorporated into this agreement
and are controlling.''
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. For
purposes of paragraph (8),
(i)
any presumption relating to the performance of a duty by an employee
whose conduct is the subject of a disclosure as defined under
subsection (a)(2)(D) may be rebutted by substantial evidence; and
(ii)
a determination as to whether an employee or applicant reasonably
believes that such employee or applicant has disclosed information
that evidences any violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety shall be
made by determining whether a disinterested observer with knowledge
of the essential facts known to and readily ascertainable by the
employee or applicant could reasonably conclude that the actions of
the Government evidence such violations, mismanagement, waste, abuse,
or danger.
(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,
and for ensuring (in consultation with the Office of Special Counsel)
that agency employees are informed of the rights and remedies
available to them under this chapter and chapter 12 of this title,
including how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept classified
in the interest of national defense or the conduct of foreign affairs
to the Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such disclosures.
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 717 of
the Civil Rights Act of 1964 (42 U.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.
(e)(1) For the purpose of this section,
the term "veterans' preference requirement" means any of
the following provisions of law:
(A) Sections 2108,
3305(b), 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3317(b),
3318, 3320, 3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and
(with respect to a preference eligible referred to in section
7511(a)(1)(B)) subchapter II of chapter 75 and section 7701.
(B) Sections
943(c)(2) and 1784(c) of title 10.
(C) Section 1308(b)
of the Alaska National Interest Lands Conservation Act.
(D) Section 301(c)
of the Foreign Service Act of 1980.
(E) Sections 106(f),
7281(e), and 7802(5) of title 38.
(F) Section 1005(a)
of title 39.
(G) Any other
provision of law that the Director of the Office of Personnel
Management designates in regulations as being a veterans'
preference requirement for the purposes of this subsection.
(H) Any regulation
prescribed under subsection (b) or (c) of section 1302 and any other
regulation that implements a provision of law referred to in any of
the preceding subparagraphs.
(2) Notwithstanding
any other provision of this title, no authority to order corrective
action shall be available in connection with a prohibited personnel
practice described in subsection (b)(11). Nothing in this paragraph
shall be considered to affect any authority under section 1215
(relating to disciplinary action).
(f)(1) A disclosure
shall not be excluded from subsection (b)(8) because—
(A)
(A) the disclosure was made to a person, including a supervisor, who
participated in an activity that the employee or applicant reasonably
believed to be covered by subsection (b)(8)(A)(ii);
(B)
the disclosure revealed information that had been previously
disclosed;
(C)
of the employee's or applicant's motive for making the
disclosure;
(D)
the disclosure was not made in writing;
(E)
the disclosure was made while the employee was off duty; or
(F)
of the amount of time which has passed since the occurrence of the
events described in the disclosure.
(2)
If a disclosure is made during the normal course of duties of an
employee, the disclosure shall not be excluded from subsection (b)(8)
if any employee who has authority to take, direct others to take,
recommend, or approve any personnel action with respect to the
employee making the disclosure, took, failed to take, or threatened
to take or fail to take a personnel action with respect to that
employee in reprisal for the disclosure.
§ 2304.
Prohibited personnel practices affecting the Transportation Security
Administration
(a) IN
GENERAL.—Notwithstanding any other provisions of law, any
individual holding or applying for a position within the
Transportation Security Administration shall be covered by—
(1)
the provisions of section 2302(b)(1), (8), and (9);
(2)
any provision of law implementing section 2302(b) (1), (8), or (9) by
providing any right or remedy available to an employee or applicant
for employment in the civil service; and
(3)
any rule or regulation prescribed under any provision of law referred
to in paragraph (1) or (2).
(b) RULE OF
CONSTRUCTION.— Nothing in this section shall be construed to
affect any rights, apart from those described in sub-section (a), to
which an individual described in subsection (a) might otherwise be
entitled under law.
CHAPTER
77—APPEALS
§ 7703.
Judicial review of decisions of the Merit Systems Protection Board
(a)(1) Any employee or applicant for
employment adversely affected or aggrieved by a final order or
decision of the Merit Systems Protection Board may obtain judicial
review of the order or decision.
(2) The Board shall
be named respondent in any proceeding brought pursuant to this
subsection, unless the employee or applicant for employment seeks
review of a final order or decision on the merits on the underlying
personnel action or on a request for attorney fees, in which case the
agency responsible for taking the personnel action shall be the
respondent.
(b)(1)(A) Except as
provided in subparagraph (B) and paragraph (2) of this subsection, a
petition to review a final order or final decision of the Board
shall be filed in the United States Court of Appeals for the Federal
Circuit. Notwithstanding any other provision of law, any petition
for review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
(B)
During the 2-year period beginning on the effective date of the
Whistleblower Protection Enhancement Act of 2012, a petition to
review a final order or final decision of the Board that raises no
challenge to the Board's disposition of allegations of a prohibited
personnel practice described in section 2302(b) other than practices
described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or
(D) shall be filed in the United States Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction.
Notwithstanding any other provision of law, any petition for review
shall be filed within 60 days after the Board issues notice of the
final order or decision of the Board.
(2) Cases of
discrimination subject to the provisions of section 7702 of this
title shall be filed under section 717(c) of the Civil Rights Act of
1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of
the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)),
as applicable. Notwithstanding any other provision of law, any such
case filed under any such section must be filed within 30 days after
the date the individual filing the case received notice of the
judicially reviewable action under such section 7702.
(c) In any case filed in the United
States Court of Appeals for the Federal Circuit, the court shall
review the record and hold unlawful and set aside any agency action,
findings, or conclusions found to be -
(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law;
(2) obtained without
procedures required by law, rule, or regulation having been followed;
or
(3) unsupported by
substantial evidence; except that in the case of discrimination
brought under any section referred to in subsection (b)(2) of this
section, the employee or applicant shall have the right to have the
facts subject to trial de novo by the reviewing court.
(d)(1) Except as
provided under paragraph (2), this paragraph shall apply to any
review obtained by the Director of the Office of Personnel
Management. The Director may obtain review of any final order or
decision of the Board by filing, within 60 days after the Board
issues notice of the final order or decision of the Board, a petition
for judicial review in the United States Court of Appeals for the
Federal Circuit if the Director determines, in the discretion of the
Director, that the Board erred in interpreting a civil service law,
rule, or regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil service
law, rule, regulation, or policy directive. If the Director did not
intervene in a matter before the Board, the Director may not petition
for review of a Board decision under this section unless the Director
first petitions the Board for a reconsideration of its decision, and
such petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the Board shall
have the right to appear in the proceeding before the Court of
Appeals. The granting of the petition for judicial review shall be
at the discretion of the Court of Appeals.
(2)
During the 2-year period beginning on the effective date of the
Whistleblower Protection Enhancement Act of 2012, this paragraph
shall apply to any review obtained by the Director of the Office of
Personnel Management that raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice
described in section 2302(b) other than practices described in
section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The
Director may obtain review of any final order or decision of the
Board by filing, within 60 days after the Board issues notice of the
final order or decision of the Board, a petition for judicial review
in the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction if the Director
determines, in the discretion of the Director, that the Board erred
in interpreting a civil service law, rule, or regulation affecting
personnel management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter
before the Board, the Director may not petition for review of a Board
decision under this section unless the Director first petitions the
Board for a reconsideration of its decision, and such petition is
denied. In addition to the named respondent, the Board and all other
parties to the proceedings before the Board shall have the right to
appear in the proceeding before the court of appeals. The granting
of the petition for judicial review shall be at the discretion of the
court of appeals.