5 U.S.C. § 1221 — Individual right of action in certain re-

Page 286 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 1219 sel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohib- ited personnel practices filed with it, investigations conducted by it, cases in which it did not make a deter- mination whether there are reasonable grounds to be- lieve that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period speci- fied in section 1214(b)(2)(A)(i), and actions initiated by it before the Merit Systems Protection Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this sub- chapter, and the actions taken by the agencies as a re- sult of the reports or recommendations. The report re- quired by this section shall include whatever rec- ommendations for legislation or other action by Con- gress the Special Counsel may consider appropriate.’’ 1994—Pub. L. 103–424 inserted ‘‘cases in which it did not make a determination whether there are reason- able grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken within the 240-day period specified in section 1214(b)(2)(A)(i),’’ after ‘‘investigations conducted by it,’’. Statutory Notes and Related Subsidiaries TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of reporting provisions in this section, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 188 of House Document No. 103–7. § 1219. Public information (a) The Special Counsel shall maintain and make available to the public— (1) a list of any noncriminal matters referred to the head of an agency under section 1213(c), together with— (A) a copy of the information transmitted to the head of the agency under section 1213(c)(1); (B) any report from the agency under sec- tion 1213(c)(1)(B) relating to the matter; (C) if appropriate, not otherwise prohibited by law, and consented to by the complain- ant, any comments from the complainant under section 1213(e)(1) relating to the mat- ter; and (D) the comments or recommendations of the Special Counsel under paragraph (3) or (4) of section 1213(e); (2) a list of matters referred to heads of agencies under section 1215(c)(2); (3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection; and (4) reports from heads of agencies under sec- tion 1213(g)(1). (b) The Special Counsel shall take steps to en- sure that any list or report made available to the public under this section does not contain any information the disclosure of which is pro- hibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign af- fairs. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; Pub. L. 115–91, div. A, title X, § 1097(h)(2), Dec. 12, 2017, 131 Stat. 1624.) Editorial Notes AMENDMENTS 2017—Subsec. (a)(1). Pub. L. 115–91 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with reports from heads of agencies under subsection (c)(1)(B) of such section relating to such matters;’’. SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES § 1221. Individual right of action in certain re- prisal cases (a) Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an em- ployee, former employee, or applicant for em- ployment 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 per- sonnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek cor- rective action from the Merit Systems Protec- tion Board. (b) This section may not be construed to pro- hibit any employee, former employee, or appli- cant for employment from seeking corrective action from the Merit Systems Protection Board before seeking corrective action from the Spe- cial Counsel, if such employee, former employee, or applicant for employment has the right to ap- peal directly to the Board under any law, rule, or regulation. (c)(1) Any employee, former employee, or ap- plicant for employment seeking corrective ac- tion under subsection (a) may request that the Board order a stay of the personnel action in- volved. (2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (exclud- ing Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appro- priate. (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 dissolu- tion 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 per- son if the Board finds that the testimony or pro- duction requested is not unduly burdensome and appears reasonably calculated to lead to the dis- covery of admissible evidence. (2) A subpoena under this subsection may be issued, and shall be enforced, in the same man- ner 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 Page 287 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 1221 1 So in original. Probably should be ‘‘employee,’’. 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 em- ployee, former employee, or applicant for em- ployment 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 such employee, former employee, or applicant. The employee may demonstrate that the disclo- sure or protected activity was a contributing factor in the personnel action through cir- cumstantial 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 pro- tected 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 pro- tected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same per- sonnel action in the absence of such disclosure. (f)(1) A final order or decision shall be ren- dered 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 sec- tion. (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 inves- tigate 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 rea- sonable and foreseeable consequential dam- ages, 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 appli- cant for employment is the prevailing party be- fore 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 ap- plicant for reasonable attorney’s fees and any other reasonable costs incurred. (3) If an employee, former emloyee,1 or appli- cant 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 reason- able costs incurred, regardless of the basis of the decision. (4) Any corrective action ordered under this section to correct a prohibited personnel prac- tice may include fees, costs, or damages reason- ably incurred due to an agency investigation of the employee, if such investigation was com- menced, 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 appli- cant for employment adversely affected or ag- grieved 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 sec- tion 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 indi- vidual under the provisions of this chapter, nei- ther the status of an individual under any re- tirement system established under a Federal statute nor any election made by such indi- vidual under any such system may be taken into account. (k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give pri- ority to a request for a transfer submitted by the employee. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29; amended Pub. L. 103–424, §§ 4, 8(b), Oct. 29, 1994, 108 Stat. 4363, 4365; Pub. L. 112–199, title I, §§ 101(b)(1)(A), (2)(A), 104(c)(2), 107(b), 114(b), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–73, title I, § 102(b), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, § 1097(c)(3)(B), Dec. 12, 2017, 131 Stat. 1619.) Editorial Notes AMENDMENTS 2017—Subsec. (k). Pub. L. 115–91 added subsec. (k) and struck out former subsec. (k) which read as follows: ‘‘If the Merit Systems Protection Board grants a stay to an employee in probationary status under subsection (c), the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.’’ Pub. L. 115–73 added subsec. (k). 2012—Subsec. (a). Pub. L. 112–199, § 101(b)(1)(A), in- serted ‘‘or section 2302(b)(9)(A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’. Subsec. (e)(1). Pub. L. 112–199, § 101(b)(1)(A), (2)(A), in- serted ‘‘or section 2302(b)(9)(A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ in two places and inserted ‘‘or pro- tected activity’’ after ‘‘disclosure’’ wherever appearing. Page 288 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 1222 Subsec. (e)(2). Pub. L. 112–199, § 114(b), inserted ‘‘, after a finding that a protected disclosure was a con- tributing factor,’’ after ‘‘ordered if’’. Subsec. (g)(1)(A)(ii). Pub. L. 112–199, § 107(b), sub- stituted ‘‘any other reasonable and foreseeable con- sequential damages, and compensatory damages (in- cluding interest, reasonable expert witness fees, and costs).’’ for ‘‘and any other reasonable and foreseeable consequential changes.’’ Subsec. (g)(4). Pub. L. 112–199, § 104(c)(2), added par. (4). Subsec. (i). Pub. L. 112–199, § 101(b)(1)(A), inserted ‘‘or section 2302(b)(9)(A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’. 1994—Subsec. (d)(1). Pub. L. 103–424, § 4(a), added par. (1) and struck out former par. (1) which read as follows: ‘‘At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board may issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that such subpoena is nec- essary for the development of relevant evidence.’’ Subsec. (e)(1). Pub. L. 103–424, § 4(b), which directed the amendment of section 1221(e)(1), without specifying the Code title to be amended, by inserting at end ‘‘The employee may demonstrate that the disclosure was a contributing factor in the personnel action through cir- cumstantial evidence, such as evidence that— ‘‘(A) the official taking the personnel action knew of the disclosure; and ‘‘(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.’’, was executed to subsec. (e)(1) of this section to reflect the probable intent of Con- gress. Subsec. (f)(3). Pub. L. 103–424, § 4(c), added par. (3). Subsec. (g). Pub. L. 103–424, § 8(b), added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), re- spectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2012 AMENDMENT Amendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title. EFFECTIVE DATE Subchapter effective 90 days following Apr. 10, 1989, see section 11 of Pub. L. 101–12, set out as an Effective Date of 1989 Amendment note under section 1201 of this title. § 1222. Availability of other remedies Except as provided in section 1221(i), nothing in this chapter or chapter 23 shall be construed to limit any right or remedy available under a provision of statute which is outside of both this chapter and chapter 23. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 31.) CHAPTER 13—SPECIAL AUTHORITY Sec. 1301. Rules. 1302. Regulations. 1303. Investigations; reports. 1304. Loyalty investigations; reports; revolving fund. 1305. Administrative law judges. 1306. Oaths to witnesses. 1307. Minutes. [1308. Repealed.] Editorial Notes AMENDMENTS 1998—Pub. L. 105–362, title XIII, § 1302(b)(2)(A), Nov. 10, 1998, 112 Stat. 3293, struck out item 1308 ‘‘Annual re- ports’’. 1978—Pub. L. 95–251, § 2(c)(1), Mar. 27, 1978, 92 Stat. 183, substituted ‘‘Administrative law judges’’ for ‘‘Hearing examiners’’ in item 1305. § 1301. Rules The Office of Personnel Management shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 401; Pub. L. 95–454, title IX, § 906(a)(2), Oct. 13, 1978, 92 Stat. 1224.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 633(1) (func- tion of Civil Serv- ice Commission). Jan. 16, 1883, ch. 27, § 2(1) (function of Civil Service Commission), 22 Stat. 403. The authority of the President to prescribe rules is carried into sections 2951, 3302, 3304(a), 3306(a), 3321, 7152, 7153, 7321, and 7322 of this title. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1978—Pub. L. 95–454 substituted ‘‘Office of Personnel Management’’ for ‘‘Civil Service Commission’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. § 1302. Regulations (a) The Office of Personnel Management, sub- ject to the rules prescribed by the President under this title for the administration of the competitive service, shall prescribe regulations for, control, supervise, and preserve the records of, examinations for the competitive service. (b) The Office shall prescribe and enforce regu- lations for the administration of the provisions of this title, and Executive orders issued in fur- therance thereof, that implement the Congres- sional policy that preference shall be given to preference eligibles in certification for appoint- ment, and in appointment, reinstatement, reem- ployment, and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the Dis- trict of Columbia. (c) The Office shall prescribe regulations for the administration of the provisions of this title that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appoint- ment, reinstatement, reemployment, and reten- tion, in the excepted service in Executive agen- cies, permanent or temporary, and in the gov- ernment of the District of Columbia.