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2 U.S.C. § 1405 — Hearing

Federal law — U.S. Code and appendices · legal_authorities

2 U.S.C. § 1405 — Hearing

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Source location: Title 2, Chapter 24, § 1405; chapter-024-congressional-accountability.md

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**(a) Requirement for hearings to commence in Office** (1) **Hearing required upon request** — If, not later than 10 days after a hearing officer submits the report on the preliminary review of a claim under [section 1402a(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402a/c&num=0&edition=prelim), a covered employee submits a request to the Executive Director for a hearing under this section, the Executive Director shall appoint an independent hearing officer pursuant to subsection (c) to consider the claim and render a decision, and a hearing shall be commenced in the Office. (2) **Exceptions** — Paragraph (1) does not apply with respect to the claim if— (A) the hearing officer’s report on the preliminary review of the claim under [section 1402a(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402a/c&num=0&edition=prelim) includes the determination that the individual filing the claim is not a covered employee who has stated a claim for which relief may be granted under this title (as described in [section 1402a(d) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402a/d&num=0&edition=prelim)); or (B) the covered employee files a civil action as provided in [section 1408 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1408&num=0&edition=prelim) with respect to the claim. **(b) Dismissal** A hearing officer may dismiss any claim that the hearing officer finds to be frivolous or that fails to state a claim upon which relief may be granted. **(c) Hearing officer** (1) **Appointment** — Upon the filing of a request for a hearing under subsection (a), the Executive Director shall appoint an independent hearing officer to consider the request for a hearing under subsection (a) and render a decision. No Member of the House of Representatives, Senator, officer of either the House of Representatives or the Senate, head of an employing office, member of the Board, or covered employee may be appointed to be a hearing officer. The Executive Director shall select hearing officers on a rotational or random basis from the lists developed under paragraph (2). Nothing in this section shall prevent the appointment of hearing officers as full-time employees of the Office or the selection of hearing officers on the basis of specialized expertise needed for particular matters. (2) **Lists** — The Executive Director shall develop master lists, composed of— (A) members of the bar of a State or the District of Columbia and retired judges of the United States courts who are experienced in adjudicating or arbitrating the kinds of personnel and other matters for which hearings may be held under this chapter, and (B) individuals expert in technical matters relating to accessibility and usability by persons with disabilities or technical matters relating to occupational safety and health. In developing lists, the Executive Director shall consider candidates recommended by the Federal Mediation and Conciliation Service or the Administrative Conference of the United States. (3) **Prohibiting hearing officer conducting preliminary review from conducting hearing** — The Executive Director may not appoint a hearing officer to conduct a hearing under this section with respect to a claim if the hearing officer conducted the preliminary review with respect to the claim under [section 1402a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402a&num=0&edition=prelim). **(d) Hearing** Unless a claim is dismissed before a hearing, a hearing shall be— (1) conducted in closed session on the record by the hearing officer; (2) commenced no later than 90 days after the Executive Director receives the covered employee’s request for the hearing under subsection (a), except that, upon mutual agreement of the parties or for good cause, the Office shall extend the time for commencing a hearing for not more than an additional 30 days; and (3) conducted, except as specifically provided in this chapter and to the greatest extent practicable, in accordance with the principles and procedures set forth in sections 554 through 557 of title 5. **(e) Discovery** Reasonable prehearing discovery may be permitted at the discretion of the hearing officer. **(f) Subpoenas** (1) **In general** — At the request of a party, a hearing officer may issue subpoenas for the attendance of witnesses and for the production of correspondence, books, papers, documents, and other records. The attendance of witnesses and the production of records may be required from any place within the United States. Subpoenas shall be served in the manner provided under rule 45(b) of the Federal Rules of Civil Procedure. (2) **Objections** — If a person refuses, on the basis of relevance, privilege, or other objection, to testify in response to a question or to produce records in connection with a proceeding before a hearing officer, the hearing officer shall rule on the objection. At the request of the witness or any party, the hearing officer shall (or on the hearing officer’s own initiative, the hearing officer may) refer the ruling to the Board for review. (3) **Enforcement** (A) *In general* — If a person fails to comply with a subpoena, the Board may authorize the General Counsel to apply, in the name of the Office, to an appropriate United States district court for an order requiring that person to appear before the hearing officer to give testimony or produce records. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey a lawful order of the district court issued pursuant to this section may be held by such court to be a civil contempt thereof. (B) *Service of process* — Process in an action or contempt proceeding pursuant to subparagraph (A) may be served in any judicial district in which the person refusing or failing to comply, or threatening to refuse or not to comply, resides, transacts business, or may be found, and subpoenas for witnesses who are required to attend such proceedings may run into any other district. **(g) Decision** The hearing officer shall issue a written decision as expeditiously as possible, but in no case more than 90 days after the conclusion of the hearing. The written decision shall be transmitted by the Office to the parties. The decision shall state the issues raised in the claim, describe the evidence in the record, contain findings of fact and conclusions of law, contain a determination of whether a violation has occurred, and order such remedies as are appropriate pursuant to subchapter II. The decision shall be entered in the records of the Office. If a decision is not appealed under [section 1406 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1406&num=0&edition=prelim) to the Board, the decision shall be considered the final decision of the Office. **(h) Precedents** A hearing officer who conducts a hearing under this section shall be guided by judicial decisions under the laws made applicable by [section 1302 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1302&num=0&edition=prelim) and by Board decisions under this chapter.

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Federal law — U.S. Code and appendices · legal_authorities

2 U.S.C. § 1302 — Application of laws

**(a) Laws made applicable** The following laws shall apply, as prescribed by this chapter, to the legislative branch of the Federal Government: (1) The Fair Labor Standards Act of 1938 ([29 U.S.C. 201](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section201&num=0&edition=prelim) et seq.). (2) Title VII of the Civil Rights Act of 1964 ([42 U.S.C. 2000e](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section2000e&num=0&edition=prelim) et seq.). (3) The Americans with Disabilities Act of 1990 ([42 U.S.C. 12101](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section12101&num=0&edition=prelim) et seq.). (4) The Age Discrimination in Employment Act of 1967 ([29 U.S.C. 621](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section621&num=0&edition=prelim) et seq.). (5) The Family and Medical Leave Act of 1993 ([29 U.S.C. 2611](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section2611&num=0&edition=prelim) et seq.). (6) The Occupational Safety and Health Act of 1970 ([29 U.S.C. 651](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section651&num=0&edition=prelim) et seq.). (7) Chapter 71 (relating to Federal service labor-management relations) of title 5. (8) The Employee Polygraph Protection Act of 1988 ([29 U.S.C. 2001](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section2001&num=0&edition=prelim) et seq.). (9) The Worker Adjustment and Retraining Notification Act ([29 U.S.C. 2101](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section2101&num=0&edition=prelim) et seq.). (10) The Rehabilitation Act of 1973 ([29 U.S.C. 701](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-s

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Federal law — U.S. Code and appendices · legal_authorities

2 U.S.C. § 1408 — Civil action

**(a) Jurisdiction** The district courts of the United States shall have jurisdiction over any civil action commenced under [section 1401 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1401&num=0&edition=prelim) and this section by a covered employee. **(b) Parties** The defendant shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred. **(c) Jury trial** Any party may demand a jury trial where a jury trial would be available in an action against a private defendant under the relevant law made applicable by this chapter. In any case in which a violation of [section 1311 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1311&num=0&edition=prelim) is alleged, the court shall not inform the jury of the maximum amount of compensatory damages available under section 1311(b)(1) or 1311(b)(3) of this title. **(d) Appearances by House Employment Counsel** (1) **In general** — The House Employment Counsel of the House of Representatives and any other counsel in the Office of House Employment Counsel of the House of Representatives, including any counsel specially retained by the Office of House Employment Counsel, shall be entitled, for the purpose of providing legal assistance and representation to employing offices of the House of Representatives under this chapter, to enter an appearance in any proceeding before any court of the United States or of any State or political subdivision thereof without compliance with any requirements for admission to practice before such court, except that the authorization conferred by this paragraph shall not apply with respect to the admission of any such person to practice before the Unit

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2 U.S.C. § 1301 — Definitions

**(a) In general** Except as otherwise specifically provided in this chapter, as used in this chapter: (1) **Board** — The term “Board” means the Board of Directors of the Office of Congressional Workplace Rights. (2) **Chair** — The term “Chair” means the Chair of the Board of Directors of the Office of Congressional Workplace Rights. (3) **Covered employee** — The term “covered employee” means any employee of— (A) the House of Representatives; (B) the Senate; (C) the Office of Congressional Accessibility Services; (D) the Capitol Police; (E) the Congressional Budget Office; (F) the Office of the Architect of the Capitol; (G) the Office of the Attending Physician; (H) the Office of Congressional Workplace Rights; (I) the Office of Technology Assessment; (J) the Library of Congress, except for [section 1351 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1351&num=0&edition=prelim); or (K) the John C. Stennis Center for Public Service Training and Development. (4) **Employee** — The term “employee” includes an applicant for employment and a former employee. (5) **Employee of the Office of the Architect of the Capitol** — The term “employee of the Office of the Architect of the Capitol” includes any employee of the Office of the Architect of the Capitol or the Botanic Garden. (6) **Employee of the Capitol Police** — The term “employee of the Capitol Police” includes any member or officer of the Capitol Police. (7) **Employee of the House of Representatives** — The term “employee of the House of Representatives” includes an individual occupying a position the pay for which is disbursed by the Chief Administrative Officer of the House of Representatives, or another official designated by the H

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2 U.S.C. § 1403 — Mediation

**(a) Availability of mediation** (1) **Notification regarding mediation** (A) *Covered employee* — Upon receipt of a claim under [section 1402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402&num=0&edition=prelim), the Office shall notify the covered employee who filed the claim about the process for mediation under this section and the deadlines applicable to such mediation. (B) *Employing office* — Upon transmission to the employing office of the claim pursuant to [section 1402(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402/b&num=0&edition=prelim), the Office shall notify the employing office about the process for mediation under this section and the deadlines applicable to such mediation. (2) **Initiation** (A) *In general* — During the period described in subparagraph (B), either the covered employee who filed a claim under [section 1402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402&num=0&edition=prelim) or the employing office named in the claim may file a request for mediation with the Office, which shall promptly notify the other party. If the other party agrees to the request, the Office shall promptly assign a mediator to the claim, and conduct mediation under this section. (B) *Timing* — A covered employee or an employing office may file a request for mediation under subparagraph (A) during the period beginning on the date that the covered employee or employing office, respectively, receives a notification under paragraph (1) regarding a claim under [section 1402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402&num=0&edition=prelim) and ending on the date o

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2 U.S.C. § 1406 — Appeal to Board

**(a) In general** Any party aggrieved by the decision of a hearing officer under [section 1405(g) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1405/g&num=0&edition=prelim) may file a petition for review by the Board not later than 30 days after entry of the decision in the records of the Office. **(b) Parties’ opportunity to submit argument** The parties to the hearing upon which the decision of the hearing officer was made shall have a reasonable opportunity to be heard, through written submission and, in the discretion of the Board, through oral argument. **(c) Standard of review** The Board shall set aside a decision of a hearing officer if the Board determines that the decision was— (1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law; (2) not made consistent with required procedures; or (3) unsupported by substantial evidence. **(d) Record** In making determinations under subsection (c), the Board shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. **(e) Decision** The Board shall issue a written decision setting forth the reasons for its decision. The decision may affirm, reverse, or remand to the hearing officer for further proceedings. A decision that does not require further proceedings before a hearing officer shall be entered in the records of the Office as a final decision.

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2 U.S.C. § 1402a — Preliminary review of claims

**(a) Preliminary review by hearing officer** (1) **Appointment** — Not later than 7 days after transmission to the employing office of a claim pursuant to [section 1402(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402/b&num=0&edition=prelim), the Executive Director shall appoint a hearing officer to conduct a preliminary review of the claim. (2) **Process for appointment** — The Executive Director shall appoint a hearing officer under this subsection in the same manner and in accordance with the same requirements and procedures applicable to the appointment of a hearing officer under [section 1405(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1405/c&num=0&edition=prelim). **(b) Assessments required** In conducting a preliminary review of a claim under this section, the hearing officer shall assess each of the following: (1) Whether the claimant is a covered employee authorized to obtain relief relating to the claim under this subchapter. (2) Whether the office which is the subject of the claim is an employing office under this chapter. (3) Whether the individual filing the claim has met the applicable deadlines for filing the claim under this subchapter. (4) The identification of factual and legal issues involved with respect to the claim. (5) The specific relief sought by the individual. (6) Whether, on the basis of the assessments made under paragraphs (1) through (5), the individual filing the claim is a covered employee who has stated a claim for which, if the allegations contained in the claim are true, relief may be granted under this subchapter. (7) The potential for the settlement of the claim without a formal hearing as provided under [section 1405 of this

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2 U.S.C. § 1331 — Rights and protections under Americans with Disabilities Act of 1990 relating to public services and accommodations; procedures for remedy of violations

**(a) Entities subject to this section** The requirements of this section shall apply to— (1) each office of the Senate, including each office of a Senator and each committee; (2) each office of the House of Representatives, including each office of a Member of the House of Representatives and each committee; (3) each joint committee of the Congress; (4) the Office of Congressional Accessibility Services; (5) the Capitol Police; (6) the Congressional Budget Office; (7) the Office of the Architect of the Capitol (including the Botanic Garden); (8) the Office of the Attending Physician; (9) the Office of Congressional Workplace Rights; (10) the Office of Technology Assessment; and (11) the Library of Congress. **(b) Discrimination in public services and accommodations** (1) **Rights and protections** — The rights and protections against discrimination in the provision of public services and accommodations established by sections 201 through 230, 302, 303, and 309 of the Americans with Disabilities Act of 1990 ([42 U.S.C. 12131–121](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section12131–121&num=0&edition=prelim)50, 12182, 12183, and 12189) shall apply to the entities listed in subsection (a). (2) **Definitions** — For purposes of the application of title II of the Americans with Disabilities Act of 1990 ([42 U.S.C. 12131](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section12131&num=0&edition=prelim) et seq.) under this section, the term “public entity” means any entity listed in subsection (a) that provides public services, programs, or activities. **(c) Remedy** The remedy for a violation of subsection (b) shall be such remedy as would be appropriate if awarded under section 203 or 308(a) of the Americans

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2 U.S.C. § 1341 — Rights and protections under Occupational Safety and Health Act of 1970; procedures for remedy of violations

**(a) Occupational safety and health protections** (1) **In general** — Each employing office and each covered employee shall comply with the provisions of section 5 of the Occupational Safety and Health Act of 1970 ([29 U.S.C. 654](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section654&num=0&edition=prelim)). (2) **Definitions** — For purposes of the application under this section of the Occupational Safety and Health Act of 1970 [[29 U.S.C. 651](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section651&num=0&edition=prelim) et seq.]— (A) the term “employer” as used in such Act means an employing office; (B) the term “employee” as used in such Act means a covered employee; (C) the term “employing office” includes the Government Accountability Office and any entity listed in subsection (a) of [section 1331 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1331&num=0&edition=prelim) that is responsible for correcting a violation of this section, irrespective of whether the entity has an employment relationship with any covered employee in any employing office in which such a violation occurs; and (D) the term “employee” includes employees of the Government Accountability Office. **(b) Remedy** The remedy for a violation of subsection (a) shall be an order to correct the violation, including such order as would be appropriate if issued under section 13(a) of the Occupational Safety and Health Act of 1970 ([29 U.S.C. 662(a)](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section662/a&num=0&edition=prelim)). **(c) Procedures** (1) **Requests for inspections** — Upon written request of any employing office or covered employee, the General Counsel shal

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Federal law — U.S. Code and appendices · legal_authorities

2 U.S.C. § 1351 — Application of chapter 71 of title 5 relating to Federal service labor-management relations; procedures for remedy of violations

**(a) Labor-management rights** (1) **In general** — The rights, protections, and responsibilities established under sections 7102, 7106, 7111 through 7117, 7119 through 7122, and 7131 of title 5 shall apply to employing offices and to covered employees and representatives of those employees. (2) **Application** — For purposes of the application under this section of the sections referred to in paragraph (1), the term “agency” shall be deemed to include an employing office. (3) **Definitions** — For purposes of this section, the term “covered employee” does not include an employee of the Library of Congress, and the term “employing office” does not include the Library of Congress. **(b) Remedy** The remedy for a violation of subsection (a) shall be such remedy, including a remedy under [section 7118(a)(7) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7118/a/7&num=0&edition=prelim), as would be appropriate if awarded by the Federal Labor Relations Authority to remedy a violation of any provision made applicable by subsection (a). **(c) Authorities and procedures for implementation and enforcement** (1) **General authorities of Board; petitions** — For purposes of this section and except as otherwise provided in this section, the Board shall exercise the authorities of the Federal Labor Relations Authority under sections 7105, 7111, 7112, 7113, 7115, 7117, 7118, and 7122 of title 5 and of the President under [section 7103(b) of title 5](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section7103/b&num=0&edition=prelim). For purposes of this section, any petition or other submission that, under chapter 71 of title 5, would be submitted to the Federal Labor Relations Authority shall, if brought under this se

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Federal law — U.S. Code and appendices · legal_authorities

2 U.S.C. § 1401 — Procedure for consideration of alleged violations

**(a) Filing and review of claims** Except as otherwise provided, the procedure for consideration of an alleged violation of part A of subchapter II consists of— (1) the filing of a claim by the covered employee alleging the violation, as provided in [section 1402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402&num=0&edition=prelim); (2) the preliminary review of the claim, to be conducted by a hearing officer as provided in [section 1402a of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402a&num=0&edition=prelim); (3) mediation as provided in [section 1403 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1403&num=0&edition=prelim), if requested and agreed to by the parties under that section; and (4) a formal hearing as provided in [section 1405 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1405&num=0&edition=prelim), subject to Board review as provided in [section 1406 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1406&num=0&edition=prelim) and judicial review in the United States Court of Appeals for the Federal Circuit as provided in [section 1407 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1407&num=0&edition=prelim). **(b) Right of employee to file civil action** (1) **Civil action** — Only a covered employee who has filed a claim timely as provided in [section 1402 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title2-section1402&num=0&edition=prelim) and who has not submitted a request for a hearing on the claim pursuant to [section 1405(a) of this title](https://uscode

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