5 U.S.C. § 1215 — Disciplinary action

Page 283 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 1215 compensatory damages (including interest, reasonable expert witness fees, and costs). (h) 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. (i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an em- ployee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retal- iation for a disclosure or protected activity de- scribed in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), with- out regard to whether a personnel action, as de- fined in section 2302(a)(2)(A), is taken. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 23; amended Pub. L. 103–424, §§ 3(c), (d), 8(a), Oct. 29, 1994, 108 Stat. 4362, 4364; Pub. L. 112–199, title I, §§ 101(b)(1)(A), (2)(A), 104(c)(1), 107(b), 114(a), Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L. 115–42, § 1, June 27, 2017, 131 Stat. 883; Pub. L. 115–73, title I, § 102(a), Oct. 26, 2017, 131 Stat. 1236; Pub. L. 115–91, div. A, title X, § 1097(c)(3)(A), (4), (f), (j), Dec. 12, 2017, 131 Stat. 1619, 1622, 1625.) Editorial Notes AMENDMENTS 2017—Subsec. (a)(6). Pub. L. 115–91, § 1097(f), added par. (6). Subsec. (b)(1)(B). Pub. L. 115–42 designated existing provisions as cl. (i) and added cl. (ii). Subsec. (b)(1)(B)(ii). Pub. L. 115–91, § 1097(j), struck out ‘‘who was appointed, by and with the advice and consent of the Senate,’’ after ‘‘member of the Board’’. Subsec. (b)(1)(E). Pub. L. 115–91, § 1097(c)(3)(A), added subpar. (E) and struck out former subpar. (E) which read as follows: ‘‘If the Merit Systems Protection Board grants a stay under this subsection, 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 subpar. (E). Subsec. (i). Pub. L. 115–91, § 1097(c)(4), added subsec. (i). 2012—Subsecs. (a)(3), (b)(4)(A). 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)’’. Subsec. (b)(4)(B)(i). Pub. L. 112–199, § 101(b)(1)(A), (2)(A), inserted ‘‘or section 2302(b)(9)(A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ in two places and in- serted ‘‘or protected activity’’ after ‘‘disclosure’’. Subsec. (b)(4)(B)(ii). Pub. L. 112–199, § 114(a), inserted ‘‘, after a finding that a protected disclosure was a con- tributing factor,’’ after ‘‘ordered if’’. Subsec. (g)(2). Pub. L. 112–199, § 107(b), substituted ‘‘any other reasonable and foreseeable consequential damages, and compensatory damages (including inter- est, reasonable expert witness fees, and costs).’’ for ‘‘and any other reasonable and foreseeable consequen- tial damages.’’ Subsec. (h). Pub. L. 112–199, § 104(c)(1), added subsec. (h). 1994—Subsec. (a)(1)(D). Pub. L. 103–424, § 3(c)(1), added subpar. (D). Subsec. (a)(2)(A)(iv). Pub. L. 103–424, § 3(c)(2), added cl. (iv). Subsec. (b)(2). Pub. L. 103–424, § 3(d), added subpars. (A) and (E) and redesignated former subpars. (A) to (C) as (B) to (D), respectively. Subsec. (g). Pub. L. 103–424, § 8(a), added subsec. (g). 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. TERMINATION STATEMENT Pub. L. 103–424, § 12(b), Oct. 29, 1994, 108 Stat. 4367, pro- vided that: ‘‘The Special Counsel shall include in any letter terminating an investigation under section 1214(a)(2) of title 5, United States Code, the name and telephone number of an employee of the Special Coun- sel who is available to respond to reasonable questions from the person regarding the investigation or review conducted by the Special Counsel, the relevant facts ascertained by the Special Counsel, and the law appli- cable to the person’s allegations.’’ § 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 prac- tice, (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 com- plaint against the employee containing the Spe- cial 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 Protec- tion 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 an- swer; (B) be represented by an attorney or other representative; (C) a hearing before the Board or an admin- istrative 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 Page 284 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 1216 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 pro- tected under section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) was a significant motivating fac- tor, even if other factors also motivated the de- cision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a per- sonnel action, unless that employee dem- onstrates, by a preponderance of the 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 con- sider the case in accordance with the provisions of such chapter. (b) In the case of an employee in a confiden- tial, policy-making, policy-determining, or pol- icy-advocating position appointed by the Presi- dent, 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), to- gether with any response of the employee, shall be presented to the President for appropriate ac- tion 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 ap- propriate 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, with- in 60 days after receiving such recommenda- tions, 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. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 27; amended Pub. L. 112–199, title I, § 106, Nov. 27, 2012, 126 Stat. 1468.) Editorial Notes AMENDMENTS 2012—Subsec. (a)(3). Pub. L. 112–199 amended par. (3) generally. Prior to amendment, par. (3) read as follows: ‘‘A final order of the Board may impose disciplinary ac- tion consisting of removal, reduction in grade, debar- ment from Federal employment for a period not to ex- ceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.’’ 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. § 1216. Other matters within the jurisdiction of the Office of Special Counsel (a) In addition to the authority otherwise pro- vided in this chapter, the Special Counsel shall, except as provided in subsection (b), conduct an investigation of any allegation concerning— (1) political activity prohibited under sub- chapter III of chapter 73, relating to political activities by Federal employees; (2) political activity prohibited under chap- ter 15, relating to political activities by cer- tain State and local officers and employees; (3) arbitrary or capricious withholding of in- formation prohibited under section 552, except that the Special Counsel shall make no inves- tigation of any withholding of foreign intel- ligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order; (4) activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel de- cisionmaking; and (5) involvement by any employee in any pro- hibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action. (b) The Special Counsel shall make no inves- tigation of any allegation of any prohibited ac- tivity referred to in subsection (a)(5), if the Spe- cial Counsel determines that the allegation may be resolved more appropriately under an admin- istrative appeals procedure. (c) If the Special Counsel receives an allega- tion concerning any matter under paragraph (1), (3), (4), or (5) of subsection (a), the Special Coun- sel may investigate and seek corrective action under section 1214 and disciplinary action under section 1215 in the same way as if a prohibited personnel practice were involved. (Added Pub. L. 101–12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 28; amended Pub. L. 103–94, § 3, Oct. 6, 1993, 107 Stat. 1004.) Editorial Notes AMENDMENTS 1993—Subsec. (c). Pub. L. 103–94 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘(1) If an investigation by the Special Counsel under subsection (a)(1) substantiates an allegation relating to any activity prohibited under section 7324, the Special Counsel may petition the Merit Systems Protection Board for any penalties provided for under section 7325. ‘‘(2) If the Special Counsel receives an allegation con- cerning any matter under paragraph (3), (4), or (5) of subsection (a), the Special Counsel may investigate and seek corrective action under section 1214 in the same way as if a prohibited personnel practice were in- volved.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT; SAVINGS PROVISION Amendment by Pub. L. 103–94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any pen-