2 U.S.C. § 1407 — Judicial review of Board decisions and

Page 342 TITLE 2—THE CONGRESS § 1406 section (a)’’ for ‘‘complaint’’, was executed by making the substitution both places it appeared, to reflect the probable intent of Congress. Subsec. (c)(3). Pub. L. 115–397, § 103(c), added par. (3). Subsec. (d). Pub. L. 115–397, § 103(e)(3), substituted ‘‘claim’’ for ‘‘complaint’’ in introductory provisions. Subsec. (d)(2). Pub. L. 115–397, § 103(d), added par. (2) and struck out former par. (2) which read as follows: ‘‘commenced no later than 60 days after filing of the complaint under subsection (a), except that the Office may, for good cause, extend up to an additional 30 days the time for commencing a hearing; and’’. Subsec. (g). Pub. L. 115–397, § 103(e)(4), substituted ‘‘claim’’ for ‘‘complaint’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–397 effective upon expira- tion of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title. § 1406. Appeal to Board (a) In general Any party aggrieved by the decision of a hear- ing officer under section 1405(g) of this title 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 de- cision 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 hear- ing officer if the Board determines that the deci- sion was— (1) arbitrary, capricious, an abuse of discre- tion, or otherwise not consistent with law; (2) not made consistent with required proce- dures; 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 ac- count shall be taken of the rule of prejudicial error. (e) Decision The Board shall issue a written decision set- ting forth the reasons for its decision. The deci- sion may affirm, reverse, or remand to the hear- ing 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. (Pub. L. 104–1, title IV, § 406, Jan. 23, 1995, 109 Stat. 35.) § 1407. Judicial review of Board decisions and enforcement (a) Jurisdiction (1) Judicial review The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any proceeding commenced by a petition of— (A) a party aggrieved by a final decision of the Board under section 1406(e) of this title in cases arising under part A of subchapter II, (B) a charging individual or a respondent before the Board who files a petition under section 1331(d)(4) of this title, (C) the General Counsel or a respondent before the Board who files a petition under section 1341(c)(5) of this title, or (D) the General Counsel or a respondent before the Board who files a petition under section 1351(c)(3) of this title. The court of appeals shall have exclusive juris- diction to set aside, suspend (in whole or in part), to determine the validity of, or other- wise review the decision of the Board. (2) Enforcement The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any petition of the General Counsel, filed in the name of the Office and at the direction of the Board, to enforce a final decision under section 1405(g) or 1406(e) of this title with re- spect to a violation of part A, B, C, or D of subchapter II. (b) Procedures (1) Respondents (A) In any proceeding commenced by a peti- tion filed under subsection (a)(1)(A) or (B), or filed by a party other than the General Coun- sel under subsection (a)(1)(C) or (D), the Office shall be named respondent and any party be- fore the Board may be named respondent by filing a notice of election with the court with- in 30 days after service of the petition. (B) In any proceeding commenced by a peti- tion filed by the General Counsel under sub- section (a)(1)(C) or (D), the prevailing party in the final decision entered under section 1406(e) of this title shall be named respondent, and any other party before the Board may be named respondent by filing a notice of elec- tion with the court within 30 days after serv- ice of the petition. (C) In any proceeding commenced by a peti- tion filed under subsection (a)(2), the party under section 1405 or 1406 of this title that the General Counsel determines has failed to com- ply with a final decision under section 1405(g) or 1406(e) of this title shall be named respond- ent. (2) Intervention Any party that participated in the pro- ceedings before the Board under section 1406 of this title and that was not made respondent under paragraph (1) may intervene as of right. (c) Law applicable Chapter 158 of title 28 shall apply to judicial review under paragraph (1) of subsection (a), ex- cept that— (1) with respect to section 2344 of title 28, service of a petition in any proceeding in which the Office is a respondent shall be on the General Counsel rather than on the Attor- ney General; (2) the provisions of section 2348 of title 28, on the authority of the Attorney General, shall not apply; Page 343 TITLE 2—THE CONGRESS § 1408 (3) the petition for review shall be filed not later than 90 days after the entry in the Office of a final decision under section 1406(e) of this title; and (4) the Office shall be an ‘‘agency’’ as that term is used in chapter 158 of title 28. (d) Standard of review To the extent necessary for decision in a pro- ceeding commenced under subsection (a)(1) and when presented, the court shall decide all rel- evant questions of law and interpret constitu- tional and statutory provisions. The court shall set aside a final decision of the Board if it is de- termined that the decision was— (1) arbitrary, capricious, an abuse of discre- tion, or otherwise not consistent with law; (2) not made consistent with required proce- dures; or (3) unsupported by substantial evidence. (e) Record In making determinations under subsection (d), the court shall review the whole record, or those parts of it cited by a party, and due ac- count shall be taken of the rule of prejudicial error. (Pub. L. 104–1, title IV, § 407, Jan. 23, 1995, 109 Stat. 35.) Editorial Notes REFERENCES IN TEXT Parts A, B, C, and D of subchapter II, referred to in subsec. (a), were in the original references to parts A (§§ 201–207), B (§ 210), C (§ 215), and D (§ 220), respectively, of title II of Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 7, 13, 16, 19, which are classified principally to parts A, B, C, and D, respectively, of subchapter II of this chapter. For complete classification of parts A, B, C, and D to the Code, see Tables. § 1408. Civil action (a) Jurisdiction The district courts of the United States shall have jurisdiction over any civil action com- menced under section 1401 of this title 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 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 coun- sel 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 be- fore any court of the United States or of any State or political subdivision thereof without compliance with any requirements for admis- sion 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 United States Supreme Court. (2) House Employment Counsel defined In this subsection, the term ‘‘Office of House Employment Counsel of the House of Rep- resentatives’’ means— (A) the Office of House Employment Coun- sel established and operating under the au- thority of the Clerk of the House of Rep- resentatives as of November 12, 2001; (B) any successor office to the Office of House Employment Counsel which is estab- lished after November 12, 2001; and (C) any other person authorized and di- rected in accordance with the Rules of the House of Representatives to provide legal as- sistance and representation to employing of- fices of the House of Representatives in con- nection with actions brought under this sub- chapter. (Pub. L. 104–1, title IV, § 408, Jan. 23, 1995, 109 Stat. 37; Pub. L. 107–68, title I, § 119(a), Nov. 12, 2001, 115 Stat. 573; Pub. L. 115–397, title I, § 101(b), Dec. 21, 2018, 132 Stat. 5300.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (c) and (d)(1), was in the original ‘‘this Act’’, meaning Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 3, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1301 of this title and Tables. AMENDMENTS 2018—Subsec. (a). Pub. L. 115–397 substituted ‘‘section 1401 of this title’’ for ‘‘section 1404 of this title’’ and struck out ‘‘who has completed counseling under sec- tion 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation’’ after ‘‘covered employee’’. 2001—Subsec. (d). Pub. L. 107–68 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–397 effective upon expira- tion of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title. EFFECTIVE DATE OF 2001 AMENDMENT Pub. L. 107–68, title I, § 119(b), Nov. 12, 2001, 115 Stat. 574, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply with respect to proceedings occurring on or after the date of the enact- ment of this Act [Nov. 12, 2001].’’