PART II—CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
Editorial Notes
Amendments
2002—
1992—
1989—
1978—
CHAPTER 11 —OFFICE OF PERSONNEL MANAGEMENT
Editorial Notes
Amendments
1978—
§1101. Office of Personnel Management
The Office of Personnel Management is an independent establishment in the executive branch. The Office shall have an official seal, which shall be judicially noticed, and shall have its principal office in the District of Columbia, and may have field offices in other appropriate locations.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §1 (1st par.), |
The words "official place under the United States" are changed to "another office or position in the Government" of the "United States" to conform to the present legislative use of "office" and "position".
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Short Title of 1992 Amendment
Short Title of 1984 Amendment
Short Title of 1978 Amendment
Savings Provision
"(a) Except as otherwise provided in this Act [see Tables for classification], all executive orders, rules, and regulations affecting the Federal service shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the President, the Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority with respect to matters within their respective jurisdictions.
"(b) No provision of this Act [see Tables for classification] shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted.
"(c) No suit, action, or other proceeding lawfully commenced by or against the Director of the Office of Personnel Management or the members of the Merit Systems Protection Board, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above], shall abate by reason of the enactment of this Act [see Tables for classification]. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted."
Transmittal of Record Relating to Presidentially Appointed Positions to Presidential Candidates
"(1)
"(2)
"(A)
(B)
"(3)
"(A) all positions which are appointed by the President, including the title and description of the duties of each position;
"(B) the name of each person holding a position described under subparagraph (A);
"(C) any vacancy in the positions described under subparagraph (A), and the period of time any such position has been vacant;
"(D) the date on which an appointment made after the applicable Presidential election for any position described under subparagraph (A) is necessary to ensure effective operation of the Government; and
"(E) any other information that the Office of Personnel Management determines is useful in making appointments."
Transfer to Office of Personnel Management of Personnel Investigative Functions and Related Personnel of the Department of Defense
"(a)
"(2) The Director of the Office of Personnel Management may accept a transfer of functions under paragraph (1).
"(3) Any transfer of a function under this subsection is a transfer of function within the meaning of
"(b)
"(2) The conditions referred to in paragraph (1) are the following:
"(A) That the Office of Personnel Management is fully capable of carrying out high-priority investigations required by the Secretary of Defense within a timeframe set by the Secretary of Defense.
"(B) That the Office of Personnel Management has undertaken necessary and satisfactory steps to ensure that investigations performed on Department of Defense contract personnel will be conducted in an expeditious manner sufficient to ensure that those contract personnel are available to the Department of Defense within a timeframe set by the Secretary of Defense.
"(C) That the Department of Defense will retain capabilities in the form of Federal employees to monitor and investigate Department of Defense and contractor personnel as necessary to perform counterintelligence functions and polygraph activities of the Department.
"(D) That the authority to adjudicate background investigations will remain with the Department of Defense and that the transfer of Defense Security Service personnel to the Office of Personnel Management will improve the speed and efficiency of the adjudication process.
"(E) That the Department of Defense will retain within the Defense Security Service sufficient personnel and capabilities to improve Department of Defense industrial security programs and practices.
"(c)
"(A) the Defense Security Service employees who perform those functions immediately before the transfer of functions; and
"(B) the Defense Security Service employees who, as of such time, are first level supervisors of employees transferred under subparagraph (A).
"(2) The Secretary may also transfer to the Office of Personnel Management any Defense Security Service employees (including higher level supervisors) who provide support services for the performance of the functions transferred under subsection (a) or for the personnel (including supervisors) transferred under paragraph (1) if the Director—
"(A) determines that the transfer of such additional employees and the positions of such employees to the Office of Personnel Management is necessary in the interest of effective performance of the transferred functions; and
"(B) accepts the transfer of the additional employees.
"(3) In the case of an employee transferred to the Office of Personnel Management under paragraph (1) or (2), whether a full-time or part-time employee—
"(A) subsections (b) and (c) of
"(i) the grade retention period shall be the one-year period beginning on the date of the transfer; and
"(ii) paragraphs (1), (2), and (3) of such subsection (c) shall not apply to the employee; and
"(B) the employee may not be separated, other than pursuant to
"(d)
"(2) A function performed by Defense Security Service [now Defense Counterintelligence and Security Agency] employees as of the date of the enactment of this Act [Nov. 24, 2003] may not be converted to contractor performance by the Director of the Office of Personnel Management until—
"(A) the Director reviews the function in accordance with the requirements of paragraph (1) and makes a written determination that the function is not inherently governmental and is not otherwise inappropriate for contractor performance; and
"(B) the Director conducts a public-private competition regarding the performance of that function in accordance with the requirements of the Office of Management and Budget Circular A–76."
Federal Flexible Benefits Plan Administrative Costs
"(a)
"(b)
"(c)
"(2) At the end of each of the first 3 calendar years in which an agency or other employing entity offers a flexible spending account option under this section, such agency or entity shall submit a report to the Office of Management and Budget showing the amount of its employment tax savings in such year which are attributable to such option, net of administrative fees paid under subsection (b)."
Combined Federal Campaign Brochure List and General Designation Option for International Agencies
Report on Productivity of Federal Workforce; Deadline
Funds for Preparation, Promulgation, or Implementation of Regulations Relating to Combined Federal Campaign; Eligibility Criteria
"(a) None of the funds appropriated by this Act, or any other Act in this or any fiscal year hereafter, may be used in preparing, promulgating, or implementing any regulations relating to the Combined Federal Campaign if such regulations are not in conformance with subsection (b).
"(b)(1)(A) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall not, to the extent that such requirements relate to litigation, public-policy advocacy, or attempting to influence legislation, be any more restrictive than any requirements established with respect to those subject matters under section 501(c)(3) or 501(h) of the Internal Revenue Code of 1986 [
"(B) Any requirements for eligibility to receive contributions through the Combined Federal Campaign shall, to the extent that such requirements relate to any subject matter other than one referred to in subparagraph (A), remain the same as the criteria in the 1984 regulations, except as otherwise provided in this section.
"(C) Notwithstanding any requirement referred to in subparagraph (A) or (B), for purposes of any Combined Federal Campaign—
"(i) any voluntary agency or federated group which was a named plaintiff as of September 1, 1987, in a case brought in the United States District Court for the District of Columbia, and designated as Civil Action No. 83–0928 or 86–1367, and
"(ii) The Federal Employee Education and Assistance Fund,
shall be considered to have national eligibility.
"(D) Public accountability standards shall remain similar to the standards which were by regulation established with respect to the 1984–1987 Combined Federal Campaigns, except that the Office of Personnel Management shall prescribe regulations under which a voluntary agency or federated group which does not exceed a certain size (as established under such regulations) may submit a copy of an appropriate Federal tax return, rather than complying with any independent auditing requirements which would otherwise apply.
"(2)(A) A voluntary agency or federated group shall, for purposes of any Combined Federal Campaign in any year, be considered to have national eligibility if such agency or group—
"(i) complies with all requirements for eligibility to receive contributions through the Combined Federal Campaign, without regard to any requirements relating to 'local presence'; and
"(ii) demonstrates that it provided services, benefits, or assistance, or otherwise conducted program activities, in—
"(I) 15 or more different States over the 3-year period immediately preceding the start of the year involved; or
"(II) several foreign countries or several parts of a foreign country.
For purposes of this subparagraph, an agency or federated group shall be considered to have conducted program activities in the required number of States, countries, or parts of a country, over the period of years involved, if such agency or group conducted program activities in such number of States, countries, or parts either in any single year during such period or in the aggregate over the course of such period, provided that no State, country, or part of a country is counted more than once.
"(B) Notwithstanding any other provisions, eligibility requirements relating to International Services Agencies shall remain at least as inclusive as existing requirements. Any voluntary agency or federated group which attains national eligibility under subparagraph (A), and any voluntary agency which is a member of the International Services Agencies, shall be considered to have satisfied any requirements relating to 'local presence'.
"(3)(A) If a federated group is eligible to receive donations in a Combined Federal Campaign, whether on a national level (pursuant to certification by the Office) or a local level (pursuant to certification by the local Federal coordinating committee), each voluntary agency which is a member of such group may, upon certification by the federated group, be considered eligible to participate on such national or local level, as the case may be.
"(B) Notwithstanding any provision of subparagraph (A)—
"(i) the Office may require a voluntary agency to provide information to support any certification submitted by a federated group with respect to such agency under subparagraph (A); and
"(ii) if a determination is made, in writing after notice and opportunity to submit written comments, that the information submitted by the voluntary agency does not satisfy the applicable eligibility requirements, such agency may be barred from participating in the Combined Federal Campaign on a national or local level, as the case may be, for a period not to exceed 1 campaign year.
"(4) The Office shall exercise oversight responsibility to ensure that—
"(A) regulations are uniformly and equitably implemented in all local combined Federal campaigns;
"(B) federated groups participating in a local combined Federal campaign are allowed to compete fairly for the role of principal combined fund organization;
"(C) federated groups participating in a local combined Federal campaign are afforded—
"(i) adequate opportunity to consult with the PCFO for the area involved before any plans are made final relating to the design or conduct of such campaign (including plans pertaining to any materials to be printed as part of the campaign);
"(ii) adequate opportunity to participate in campaign events and other related activities; and
"(iii) timely access to all reports, budgets, audits, and other records in the possession of, or under the control of, the PCFO for the areas involved; and
"(D) a federated group or voluntary agency found by the Office, by a written decision issued after notice and opportunity to submit written comments, to have violated the regulations may be barred from serving as a PCFO for not to exceed 1 campaign year.
"(5) The Office shall prescribe regulations to ensure that PCFOs do not make inappropriate delegations of decisionmaking authority.
"(6)(A) The Office shall, in consultation with federated groups, establish a formula under which any undesignated contributions received in a local combined Federal campaign shall be allocated in any year.
"(B) Under the formula for the 1990 Combined Federal Campaign, all undesignated contributions received in a local campaign shall be allocated as follows:
"(i) 82 percent shall be allocated to the United Way.
"(ii) 7 percent shall be allocated to the International Services Agencies.
"(iii) 7 percent shall be allocated to the National Voluntary Health Agencies.
"(iv) 4 percent shall, after fair and careful consideration of all eligible federated groups and agencies, be allocated by the local Federal coordinating committee among any or all of the following:
"(I) National federated groups (other than any identified in clauses (i), (ii), or (iii)), except that a national federated group shall not be eligible under this subclause unless there are at least 15 members of such group participating in the local campaign, unless the members of such group collectively receive at least 4 percent of the designated contributions in the local campaign, and unless such group was granted national eligibility status for the 1987, 1988, 1989, or 1990 Combined Federal Campaign.
"(II) Local federated groups.
"(III) Any local, non-affiliated voluntary agency which receives at least 4 percent of the designated contributions in the local campaign.
"(C) The formula set forth in subparagraph (B)—
"(i) shall be phased in over the course of the 1988 and 1989 Combined Federal Campaigns;
"(ii) shall be fully implemented with respect to the 1990 Combined Federal Campaigns [sic]; and
"(iii) shall, with respect to any Combined Federal Campaign thereafter, be adjusted based on the experience gained in the Combined Federal Campaigns referred to in clauses (i) and (ii).
"(D) Nothing in this paragraph shall apply with respect to any campaign conducted in a foreign country.
"(E) All appropriate steps shall be taken to encourage donors to make designated contributions.
"(7) The option for a donor to write in the name of a voluntary agency or federated group not listed in the campaign brochure to receive that individual's contribution in a local campaign shall be eliminated.
"(8) The name of any individual making a designated contribution in a campaign shall, upon request of the recipient voluntary agency or federated group, be released to such agency or group, unless the contributor indicates that his or her name is not to be released. Under no circumstance may the names of contributors be sold or otherwise released by such agency or group.
"(9)(A) The name of each participating voluntary agency and federated group, together with a brief description of their respective programs, shall be published in any information leaflet distributed to employees in a local combined Federal campaign. Agencies shall be arranged by federated group, with combined Federal campaign organization code numbers corresponding to each such agency and group.
"(B) The requirement under subparagraph (A) relating to the inclusion of program descriptions may, at the discretion of a local Federal coordinating committee, be waived for a local campaign in any year if, in the immediately preceding campaign year, contributions received through the local campaign totalled less than $100,000.
"(10) Employee coercion is not to be tolerated in the Combined Federal Campaign, and protections against employee coercion shall be strengthened and clarified.
"(11) The Office—
"(A) may not, after the date of the enactment of this Act [Dec. 22, 1987], grant national eligibility status to any federated group unless such group has at least 15 member voluntary agencies, each of which meets the requirements for national eligibility under paragraph (2)(A); and
"(B) may withdraw federation status from any federated group for a period of not to exceed 1 campaign year if it is determined, on the record after opportunity for a hearing, that the federated group has not complied with the regulatory requirements.
"(12) The Office may bar from participation in the Combined Federal Campaign, for a period not to exceed 1 campaign year, any voluntary agency which the Office determines, in writing, and after notice and opportunity to submit written comments, did not comply with a reasonable request by the Office to furnish it with information relating to such agency's campaign accounting and auditing practices.
"(c) For purposes of this section, a voluntary agency or federated group having 'national eligibility' is one which is eligible to participate in each local domestic combined Federal campaign."
Civil Service Reform Act of 1978 Findings and Statement of Purpose
"(1) in order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation's diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices;
"(2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business, and prohibited personnel practices should be statutorily defined to enable Federal employees to avoid conduct which undermines the merit system principles and the integrity of the merit system;
"(3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees;
"(4) the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;
"(5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control and oversight of this delegation being maintained by the Office of Personnel Management to protect against prohibited personnel practices and the use of unsound management practices by the agencies;
"(6) a Senior Executive Service should be established to provide the flexibility needed by agencies to recruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious administration of the public business;
"(7) in appropriate instances, pay increases should be based on quality of performance rather than length of service;
"(8) research programs and demonstration projects should be authorized to permit Federal agencies to experiment, subject to congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient management of the Government's human resources and greater productivity in the delivery of service to the public;
"(9) the training program of the Government should include retraining of employees for positions in other agencies to avoid separations during reductions in force and the loss to the Government of the knowledge and experience that these employees possess; and
"(10) the right of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute."
Powers of President Unaffected Except by Express Provisions
"Except as otherwise expressly provided in this Act [see Tables for classification], no provision of this Act shall be construed to—
"(1) limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before the effective date of this Act [see Effective Date of 1978 Amendment note above]; or
"(2) limit, curtail, or terminate the President's authority to delegate, redelegate, or terminate any delegation of functions."
Executive Documents
Reorganization Plans No. 1 and 2 of 1978 Superseded by Civil Service Reform Act of 1978
REORGANIZATION PLAN NO. 2 OF 1978
43 F.R. 36037, 92 Stat. 3783
Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, May 23, 1978,1 pursuant to the provisions of
PART I. OFFICE OF PERSONNEL MANAGEMENT
Section 101. Establishment of the Office of Personnel Management and Its Director and Other Matters
There is hereby established as an independent establishment in the Executive Branch, the Office of Personnel Management (the "Office"). The head of the Office shall be the Director of the Office of Personnel Management (the "Director"), who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be compensated at the rate now or hereafter provided for level II of the Executive Schedule [
Sec. 102. Transfer of Functions
Except as otherwise specified in this Plan, all functions vested by statute in the United States Civil Service Commission, or the Chairman of said Commission, or the Boards of Examiners established by
Sec. 103. Deputy Director and Associate Directors
(a) There shall be within the Office a Deputy Director who shall be appointed by the President by and with the advice and consent of the Senate and who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [
(b) There shall be within the Office not more than five Associate Directors, who shall be appointed by the Director in the excepted service, shall have such titles as the Director shall from time to time determine, and shall receive compensation at the rate now or hereafter provided for level IV of the Executive Schedule [
Sec. 104. Functions of the Director
The functions of the Director shall include, but not be limited to, the following:
(a) Aiding the President, as the President may request, in preparing such rules as the President prescribes, for the administration of civilian employment now within the jurisdiction of the United States Civil Service Commission;
(b) Advising the President, as the President may request, on any matters pertaining to civilian employment now within the jurisdiction of the United States Civil Service Commission;
(c) Executing, administering and enforcing the Civil Service rules and regulations of the President and the Office and the statutes governing the same, and other activities of the Office including retirement and classification activities except to the extent such functions remain vested in the Merit Systems Protection Board pursuant to Section 202 of this Plan, or are transferred to the Special Counsel pursuant to Section 204 of this Plan. The Director shall provide the public, where appropriate, a reasonable opportunity to comment and submit written views on the implementation and interpretation of such rules and regulations;
(d) Conducting or otherwise providing for studies and research for the purpose of assuring improvements in personnel management, and recommending to the President actions to promote an efficient Civil Service and a systematic application of the merit system principles, including measures relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separations of employees; and
(e) Performing the training responsibilities now performed by the United States Civil Service Commission as set forth in
Sec. 105. Authority To Delegate Functions
The Director may delegate, from time to time, to the head of any agency employing persons in the competitive service, the performance of all or any part of those functions transferred under this Plan to the Director which relate to employees, or applicants for employment, of such agency.
PART II. MERIT SYSTEMS PROTECTION BOARD
Sec. 201. Merit Systems Protection Board
(a) The United States Civil Service Commission is hereby redesignated the Merit Systems Protection Board. The Commissioners of the United States Civil Service Commission are hereby redesignated as members of the Merit Systems Protection Board (the "Board").
(b) The Chairman of the Board shall be its chief executive and administrative officer. The position of Executive Director, established by
Sec. 202. Functions of the Merit Systems Protection Board and Related Matters
(a) There shall remain with the Board the hearing, adjudication, and appeals functions of the United States Civil Service Commission specified in
(i)
(ii)
(b) There shall remain with the Board the functions vested in the United States Civil Service Commission, or its Chairman, pursuant to
(c) Any member of the Board may request from the Director, in connection with a matter then pending before the Board for adjudication, an advisory opinion concerning interpretation of rules, regulations, or other policy directives promulgated by the Office of Personnel Management.
(d) Whenever the interpretation or application of a rule, regulation, or policy directive of the Office of Personnel Management is at issue in any hearing, adjudication, or appeal before the Board, the Board shall promptly notify the Director, and the Director shall have the right to intervene in such proceedings.
(e) The Board shall designate individuals to chair performance rating boards established pursuant to
(f) The Chairman of the Board shall designate representatives to chair boards of review established pursuant to
(g) The Board may from time to time conduct special studies relating to the Civil Service, and to other merit systems in the Executive Branch and report to the President and the Congress whether the public interest in a workforce free of personnel practices prohibited by law or regulations is being adequately protected. In carrying out this function the Board shall make such inquiries as may be necessary, and, to the extent permitted 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. The Board shall make such recommendations to the President and the Congress as it deems appropriate.
(h) The Board may delegate the performance of any of its administrative functions to any officer or employee of the Board.
(i) 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. The Board may issue rules and regulations, consistent with statutory requirements, defining its review procedures, including the time limits within which an appeal must be filed and the rights and responsibilities of the parties to an appeal. All regulations of the Board shall be published in the
Sec. 203. Savings Provision
The Board shall accept appeals from agency actions effected prior to the effective date of this Plan. On the effective date of Part II of this Plan, proceedings then before the Federal Employee Appeals Authority shall continue before the Board; proceedings then before the Appeals Review Board and proceedings then before the United States Civil Service Commission on appeal from decisions of the Appeals Review Board shall continue before the Board; other employee appeals before boards or other bodies pursuant to law or regulation shall continue to be processed pursuant to those laws or regulations. Nothing in this section shall affect the right of a Federal employee to judicial review under applicable law.
Sec. 204. The Special Counsel
(a) There shall be a Special Counsel to the Board appointed for a term of four years by the President by and with the advice and consent of the Senate, who shall be compensated as now or hereafter provided for level IV of the Executive Schedule [
(b) There are hereby transferred to the Special Counsel all functions with respect to investigations relating to violations of
(c) The Special Counsel may investigate, pursuant to
(d) When in the judgment of the Special Counsel, such personnel practices exist, he shall report his findings and recommendations to the Chairman of the Merit Systems Protection Board, the agency affected, and to the Office of Personnel Management, and may report such findings to the President.
(e) When in the judgment of the Special Counsel, the results of an investigation would warrant the taking of disciplinary action against an employee who is within the jurisdiction of the Board, the Special Counsel shall prepare charges against such employee and present them with supporting documentation to the Board. Evidence supporting the need for disciplinary action against a Presidential appointee shall be submitted by the Special Counsel to the President.
(f) The Special Counsel may appoint personnel necessary to assist in the performance of his functions.
(g) The Special Counsel shall have the authority to prescribe rules and regulations relating to the receipt and investigation of matters under his jurisdiction. Such regulations shall be published in the
(h) The Special Counsel shall not issue advisory opinions.
PART III. FEDERAL LABOR RELATIONS AUTHORITY
Sec. 301. Establishment of the Federal Labor Relations Authority
(a) There is hereby established, as an independent establishment in the Executive Branch, the Federal Labor Relations Authority (the "Authority"). The Authority shall be composed of three members, one of whom shall be Chairman, not more than two of whom may be adherents of the same political party, and none of whom may hold another office or position in the Government of the United States except where provided by law or by the President.
(b) Members of the Authority shall be appointed by the President, by and with the advice and consent of the Senate. The President shall designate one member to serve as Chairman of the Authority, who shall be compensated at the rate now or hereafter provided for level III of the Executive Schedule [
(c) The initial members of the Authority shall be appointed as follows: one member for a term of two years; one member for a term of three years; and the Chairman for a term of four years. Thereafter, each member shall be appointed for a term of four years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.
(d) The Authority shall make an annual report on its activities to the President for transmittal to Congress.
Sec. 302. Establishment of the General Counsel of the Authority
There shall be a General Counsel of the Authority, who shall be appointed by the President, by and with the advice and consent of the Senate for a term of four years, and who shall be compensated at the rate now or hereafter provided for level V of the Executive Schedule [
Sec. 303. The Federal Service Impasses Panel
The Federal Service Impasses Panel, established under Executive Order 11491, as amended [set out under
Sec. 304. Functions
Subject to the provisions of Section 306, the following functions are hereby transferred:
(a) To the Authority—
(1) The functions of the Federal Labor Relations Council pursuant to Executive Order 11491, as amended [set out under
(2) The functions of the Civil Service Commission under Sections 4(a) and 6(e) of Executive Order 11491, as amended;
(3) The functions of the Assistant Secretary of Labor for Labor-Management Relations, under Executive Order 11491, as amended, except for those functions related to alleged violations of the standards of conduct for labor organizations pursuant to Section 6(a)(4) of said Executive Order; and,
(b) to the Panel—the functions and authorities of the Federal Service Impasses Panel, pursuant to Executive Order 11491, as amended.
Sec. 305. Authority Decisions
The decisions of the Authority on any matter within its jurisdiction shall be final and not subject to judicial review.
Sec. 306. Other Provisions
Unless and until modified, revised, or revoked, all policies, regulations, and procedures established, and decisions issued, under Executive Order 11491, as amended [set out under
Sec. 307. Savings Provision
All matters which relate to the functions transferred by Section 304 of this Plan, and which are pending on the effective date of the establishment of the Authority before the Federal Labor Relations Council, the Vice Chairman of the Civil Service Commission, or the Assistant Secretary of Labor for Labor-Management Relations shall continue before the Authority under such rules and procedures as the Authority shall prescribe. All such matters pending on the effective date of the establishment of the Authority before the Panel, shall continue before the Panel under such rules and procedures as the Panel shall prescribe.
PART IV. GENERAL PROVISIONS
Sec. 401. Incidental Transfer
So much of the personnel, property, records, and unexpended balances of appropriations, allocations and other funds employed, used, held, available, or to be made available in connection with the functions transferred under this Plan, as the Director of the Office of Management and Budget shall determine, shall be transferred to the appropriate agency, or component at such time or times as the Director of the Office of Management and Budget shall provide, except that no such unexpended balances transferred shall be used for purposes other than those for which the appropriation was originally made. The Director of the Office of Management and Budget shall provide for terminating the affairs of any agencies abolished herein and for such further measures and dispositions as such Director deems necessary to effectuate the purposes of this Reorganization Plan.
Sec. 402. Interim Officers
(a) The President may authorize any persons who, immediately prior to the effective date of this Plan, held positions in the Executive Branch of the Government, to act as Director of the Office of Personnel Management, the Deputy Director of the Office of Personnel Management, the Special Counsel, the Chairman and other members of the Federal Labor Relations Authority, the Chairman and other members of the Federal Service Impasses Panel, or the General Counsel of the Authority, until those offices are for the first time filled pursuant to the provisions of this Reorganization Plan or by recess appointment, as the case may be.
(b) The President may authorize any such person to receive the compensation attached to the Office in respect of which that person so serves, in lieu of other compensation from the United States.
Sec. 403. Effective Date
The provisions of this Reorganization Plan shall become effective at such time or times, on or before January 1, 1979, as the President shall specify, but not sooner than the earliest time allowable under
[Pursuant to Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, this Reorg. Plan is generally effective Jan. 1, 1979.]
Message of the President
To the Congress of the United States:
On March 2nd I sent to Congress a Civil Service Reform proposal to enable the Federal government to improve its service to the American people.
Today I am submitting another part of my comprehensive proposal to reform the Federal personnel management system through Reorganization Plan No. 2 of 1978. The plan will reorganize the Civil Service Commission and thereby create new institutions to increase the effectiveness of management and strengthen the protection of employee rights.
The Civil Service Commission has acquired inherently conflicting responsibilities: to help manage the Federal Government and to protect the rights of Federal employees. It has done neither job well. The Plan would separate the two functions.
office of personnel management
The positive personnel management tasks of the government—such as training, productivity programs, examinations, and pay and benefits administration—would be the responsibility of an Office of Personnel Management. Its Director, appointed by the President and confirmed by the Senate, would be responsible for administering Federal personnel matters except for Presidential appointments. The Director would be the government's principal representative in Federal labor relations matters.
merit systems protection board
The adjudication and prosecution responsibilities of the Civil Service Commission will be performed by the Merit Systems Protection Board. The Board will be headed by a bipartisan panel of three members appointed to six-year, staggered terms. This Board would be the first independent and institutionally impartial Federal agency solely for the protection of Federal employees.
The Plan will create, within the Board, a Special Counsel to investigate and prosecute political abuses and merit system violations. Under the civil service reform legislation now being considered by the Congress, the Counsel would have power to investigate and prevent reprisals against employees who report illegal acts—the so-called "whistleblowers." The Council would be appointed by the President and confirmed by the Senate.
federal labor relations authority
An Executive Order now vests existing labor-management relations in a part-time Federal Labor-Relations Council, comprised of three top government managers; other important functions are assigned to the Assistant Secretary of Labor for Labor-Management Relations. This arrangement is defective because the Council members are part-time, they come exclusively from the ranks of management and their jurisdiction is fragmented.
The Plan I submit today would consolidate the central policymaking functions in labor-management relations now divided between the Council and the Assistant Secretary into one Federal Labor Relations Authority. The Authority would be composed of three full-time members appointed by the President with the advice and consent of the Senate. Its General Counsel, also appointed by the President and confirmed by the Senate, would present unfair labor practice complaints. The Plan also provides for the continuance of the Federal Service Impasses Panel within the Authority to resolve negotiating impasses between Federal employee unions and agencies.
The cost of replacing the Civil Service Commission can be paid by our present resources. The reorganization itself would neither increase nor decrease the costs of personnel management throughout the government. But taken together with the substantive reforms I have proposed, this Plan will greatly improve the government's ability to manage programs, speed the delivery of Federal services to the public, and aid in executing other reorganizations I will propose to the Congress, by improving Federal personnel management.
Each of the provisions of this proposed reorganization would accomplish one or more of the purposes set forth in
I am confident that this Plan and the companion civil service reform legislation will both lead to more effective protection of Federal employees' legitimate rights and a more rewarding workplace. At the same time the American people will benefit from a better managed, more productive and more efficient Federal Government.
Jimmy Carter.
Executive Order No. 10729
Ex. Ord. No. 10729, Sept. 16, 1957, 22 F.R. 7449, which established the position of the Special Assistant to the President for Personnel Management, was revoked by Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513.
Ex. Ord. No. 11205. Revocation of Executive Order No. 10729
Ex. Ord. No. 11205, Mar. 15, 1965, 30 F.R. 3513, provided:
By virtue of the authority vested in me as President of the United States, the position of Special Assistant to the President for Personnel Management, established by Executive Order No. 10729 of September 16, 1957, is abolished, and that Order is hereby revoked.
Lyndon B. Johnson.
Ex. Ord. No. 12107. Implementation of Reform of Personnel Management System
Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, as amended by Ex. Ord. No. 12126, Mar. 29, 1979, 44 F.R. 18923; Ex. Ord. No. 12128, Apr. 4, 1979, 44 F.R. 20625, provided:
By virtue of the authority vested in me as President by the Constitution and statutes of the United States of America, and by Section 403 of Reorganization Plan No. 2 of 1978 (43 FR 36037) [set out above], it is hereby ordered as follows:
Section 1
implementation of reorganization plan no. 2 of 1978
1–1. Office of Personnel Management
1–101. Establishment of Office of Personnel Management. The establishment of the Office of Personnel Management and of the positions of Director, Deputy Director, and Associate Directors of that Office, as provided in Sections 101 and 103 of Reorganization Plan No. 2 of 1978, shall be effective on January 1, 1979.
1–102. Transfer of Functions. Section 102 of Reorganization Plan No. 2 of 1978, transferring functions to the Director of the Office of Personnel Management, shall be effective on January 1, 1979.
1–2. Merit Systems Protection Board
1–201. Redesignation of Civil Service Commission. The redesignation of the Civil Service Commission as the Merit Systems Protection Board and of the Commissioners as Members of the Board as provided in Section 201 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–202. Functions of the Merit Systems Protection Board. The functions of the Merit Systems Protection Board as provided in Section 202 and the savings provisions of Section 203 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–3. The Special Counsel
1–301. Establishment of the Office of Special Counsel. The establishment of the Office of Special Counsel to the Merit Systems Protection Board as provided in Section 204(a) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–302. Functions of the Special Counsel. The transfer of functions provided for in Section 204(b) and the performance of functions set forth in Section 204(c)–(g) of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–4. The Federal Labor Relations Authority
1–401. The Establishment of the Federal Labor Relations Authority and the Office of General Counsel. The establishment of the Federal Labor Relations Authority as provided in Section 301 and of the Office of General Counsel of the Authority as provided in Section 302 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–402. The Federal Service Impasses Panel. The continuation of the Federal Service Impasses Panel established under Executive Order No. 11491, as amended [set out as a note under
1–403. Functions of the Federal Labor Relations Authority, the General Counsel, and the Federal Service Impasses Panel. The transfer of functions provided for in Section 304 of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
1–5. General
1–501. General Effective Date. All other provisions of Reorganization Plan No. 2 of 1978 shall be effective on January 1, 1979.
Section 2
redesignations, amendments to rules and executive orders and general provisions
2–1. Redesignations
2–101. Office of Personnel Management. Each of the Executive orders, as amended, listed in this Section under subsections (a) and (b), as applicable, and any other order which relates to functions or areas of responsibility delegated to the Office of Personnel Management, is amended and revised by substituting the words "Office of Personnel Management" for the words "Civil Service Commission" or "United States Civil Service Commission"; by substituting the word "Office" for the word "Commission" wherever the word "Commission" is used as a reference to United States Civil Service Commission; and by substituting the words "Director, Office of Personnel Management" for the words "Chairman, Civil Service Commission", "Chairman, United States Civil Service Commission", "Commissioners" or "Commissioner" wherever they appear.
(a) Executive orders relating to the Civil Service Rules, ethics and other matters of Presidential interest.
Executive Orders Numbered
8743
10577, as amended, except for Rules IV and V, as amended in this order,
10641
10717
10927
11183
11222
11315
11451
11570
11639
11648
11721
11935
12004
12014
12043
(b) Other Executive orders relating to Federal Personnel Management, and membership on Councils, Boards, and Committees.
Executive Orders Numbered
8744
9230
9712
9830
9932
9961
10000
10242
10422
10450
10459
10530
10549
10550
10552
10556
10647
10763
10774, except for Section 3(e)
10804
10826
10880
10903
10973
10982
11103
11171
11203
11219
11228
11264
11348
11355
11422
11434
11438
11490
11521
11552
11561
11579
11589
11603
11609
11639
11744
11817
11890
11895
11899
11938
11955
12008
12015
12027
12049
12067
12070
12089
12105
2–102. Merit Systems Protection Board. The provisions of Section 3(e) of Executive Order No. 10774 [set out as a note under
2–103. [Amended Civil Service Rules under section 101 of Ex. Ord. No. 10577, formerly set out as a note under
2–104. Effectiveness of Rule Changes. The amendments to rules shall be effective on January 1, 1979, to the extent provided by law on that date.
2–2. Revocation of Executive Orders and Delegation of Functions
2–201. Revocation of Executive Orders and Delegation of Functions to the Director. Executive Orders numbered 10540 and 10561 [set out as notes under sections 6301 and 1302, respectively, of this title] are revoked and the authority vested in the President by Section 202(c)(1)(C) of the Annual Sick Leave Act of 1951, as amended [
2–202. Savings Provision. All personnel actions and decisions affecting employees or applicants for employment made on or before January 11, 1979 shall continue to be governed by the applicable Executive order, and the rules and regulations implementing that Order, to the same extent as if that Executive order had not been revoked effective January 11, 1979 unless amended, modified or revoked pursuant to this Order.
2–3. Labor Management Relations in the Federal Service
2–301. [Amended Ex. Ord. No. 11491, set out as a note under
2–4. General Provisions
2–401. Study and Report Provisions. The Director of the Office of Personnel Management is directed to conduct a study of Executive orders listed in Section 2–101(a) and (b) and to coordinate the study with such other agencies as may be named in or affected by these orders. The Director of Personnel Management and the Director of the Office of Management and Budget are directed to submit a report on or before July 1, 1981 to the President concerning the performance of functions specified in these Executive orders and any other Executive orders affecting the functions or responsibilities of the Office of Personnel Management. The report shall contain specific detailed recommendations for the continuation, modification, revision or revocation of each Executive order.
2–402. Continuing Effect of this Order. Except as required by the Civil Service Reform Act of 1978 [
2–403. Transfers and Determinations.
(a) The records, property, personnel and positions, and unexpended balances of appropriations or funds related to Civil Service Commission functions reassigned by this Order that are available, or to be made available, and necessary to finance or discharge the reassigned functions are transferred to the Director of the Office of Personnel Management, the Federal Labor Relations Authority, or the Federal Service Impasses Panel, as appropriate.
(b) The Director of the Office of Management and Budget shall make such determinations, issue such Orders and take all actions necessary or appropriate to effectuate the transfers or reassignments provided by this Order, including the transfer of funds, records, property and personnel.
2–404. Effective Date. Except as otherwise specifically provided in this Order, this Order shall be effective on January 1, 1979.
Jimmy Carter.
Executive Order No. 12157
Ex. Ord. No. 12157, Sept. 14, 1979, 44 F.R. 54035, which related to the President's Management Improvement Council, was revoked by Ex. Ord. No. 12258, Dec. 31, 1980, 46 F.R. 1251, formerly set out as a note under section 14 of the Appendix to this title.
Ex. Ord. No. 12353. Charitable Fund-Raising
Ex. Ord. No. 12353, Mar. 23, 1982, 47 F.R. 12785, as amended by Ex. Ord. No. 12404, §1, Feb. 10, 1983, 48 F.R. 6685; Ex. Ord. No. 13743, §1, Oct. 13, 2016, 81 F.R. 71571, provided:
By the authority vested in me as President by the Constitution of the United States of America, and in order to support and facilitate fund-raising on behalf of voluntary health and welfare organizations through on-the-job solicitations of Federal employees and members of the uniformed services, and to ensure that the recipient organizations are responsible in the uses of the monies so raised, it is hereby ordered as follows:
(a) The Director of the Office of Personnel Management shall make arrangements for voluntary health and welfare organizations to solicit contributions from Federal employees and members of the uniformed services at their places of employment or duty. Federal employees and members of the uniformed services can also be solicited to make pledges of volunteer time. These arrangements shall take the form of an annual Combined Federal Campaign in which eligible voluntary health and welfare organizations are authorized to take part.
(b) The Director shall consider permitting annuitants to make contributions to the Combined Federal Campaign through allotments or assignments of amounts from their Federal annuities. The Director may prescribe rules and regulations to govern the solicitation of such contributions and make arrangements to inform annuitants of their ability to make contributions in this manner.
(b) In establishing those criteria, the Director shall be guided by the following principles and policies:
(1) The objectives of the Combined Federal Campaign are to lessen the burdens of government in meeting needs of human health and welfare; to provide a convenient channel through which Federal public servants may contribute to these efforts; to minimize or eliminate disruption of the Federal workplace and costs to Federal taxpayers that such fund-raising may entail; and to avoid the reality and appearance of the use of Federal resources in aid of fund-raising for political activity or advocacy of public policy, lobbying, or philanthropy of any kind that does not directly serve needs of human health and welfare.
(2) To meet these objectives, eligibility for participation in the Combined Federal Campaign shall be limited to voluntary, charitable, health and welfare organizations that provide or support direct health and welfare services to individuals or their families. Such direct health and welfare services must be available to Federal employees in the local campaign solicitation area, unless they are rendered to needy persons overseas. Such services must directly benefit human beings, whether children, youth, adults, the aged, the ill and infirm, or the mentally or physically handicapped. Such services must consist of care, research or education in the fields of human health or social adjustment and rehabilitation; relief of victims of natural disasters and other emergencies; or assistance to those who are impoverished and therefore in need of food, shelter, clothing, education, and basic human welfare services.
(3) Organizations that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves shall not be deemed charitable health and welfare organizations and shall not be eligible to participate in the Combined Federal Campaign.
(4) International organizations that provide health and welfare services overseas, and that meet the eligibility criteria except for the local services criterion, shall be eligible to participate in each local solicitation area of the Combined Federal Campaign.
(5) Local voluntary, charitable, health and welfare organizations that are not affiliated with a national organization or federation but that satisfy the eligibility criteria set forth in this order and by the Director shall be permitted to participate in the Combined Federal Campaign.
(a) outreach coordinators to conduct campaign promotion in a local Combined Federal Campaign; and
(b) central campaign administrators to administer application and pledging systems and to collect and disburse pledged funds.
Such authorizations shall, if made, ensure at a minimum that outreach coordinators and central campaign administrators operate subject to the direction and control of the Director and such local Federal coordinating entities as may be established; and manage the Combined Federal Campaign fairly and equitably. The Director may consult with and consider advice from interested parties and organizations, and shall publish reports on the management and results of the Combined Federal Campaign.
[Section 2(d) of Ex. Ord. No. 13743 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in effect until revoked or modified under the provisions of Ex. Ord. No. 13743.]
[Section 2 of Ex. Ord. No. 12404 provided that all rules, regulations, and directives continued or issued under Ex. Ord. No. 12353, set out above, would continue in full force and effect until revoked or modified under the provisions of Ex. Ord. No. 12404.]
§1102. Director; Deputy Director; Associate Directors
(a) There is at the head of the Office of Personnel Management a Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The term of office of any individual appointed as Director shall be 4 years.
(b) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or when the office of Director is vacant.
(c) No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of the United States except as otherwise provided by law or at the direction of the President. The Director and Deputy Director shall not recommend any individual for appointment to any position (other than Deputy Director of the Office) which requires the advice and consent of the Senate.
(d) There may be within the Office of Personnel Management not more than 5 Associate Directors, as determined from time to time by the Director. Each Associate Director shall be appointed by the Director.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §1 (2d, 3d pars.), |
In subsection (a), the second sentence is substituted for original language concerning designation of Commissioners to serve six, four, and two years, respectively, as that provision is executed.
The section is reorganized to place the statutes relating to vacancies together, and redundancies are eliminated. Provisions relating to pay and travel expenses of Commissioners are omitted as superseded by the Act of Aug. 14, 1964,
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1103. Functions of the Director
(a) The following functions are vested in the Director of the Office of Personnel Management, and shall be performed by the Director, or subject to
(1) securing accuracy, uniformity, and justice in the functions of the Office;
(2) appointing individuals to be employed by the Office;
(3) directing and supervising employees of the Office, distributing business among employees and organizational units of the Office, and directing the internal management of the Office;
(4) directing the preparation of requests for appropriations for the Office and the use and expenditure of funds by the Office;
(5) executing, administering, and enforcing—
(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service; and
(B) the other activities of the Office including retirement and classification activities;
except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible;
(6) reviewing the operations under
(7) aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles, including recommending policies relating to the selection, promotion, transfer, performance, pay, conditions of service, tenure, and separation of employees;
(8) conducting, or otherwise providing for the conduct of, studies and research under
(9) incurring official reception and representation expenses of the Office subject to any limitation prescribed in any law.
(b)(1) The Director shall publish in the Federal Register general notice of any rule or regulation which is proposed by the Office and the application of which does not apply solely to the Office or its employees. Any such notice shall include the matter required under
(2) The Director shall take steps to ensure that—
(A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations; and
(B) to the extent the Director determines appropriate and practical, exclusive representatives of employees affected by such proposed rule or regulation and interested members of the public are notified of such proposed rule or regulation.
(3) Paragraphs (1) and (2) of this subsection shall not apply to any proposed rule or regulation which is temporary in nature and which is necessary to be implemented expeditiously as a result of an emergency.
(4) Paragraphs (1) and (2) of this subsection and
(c)(1) The Office of Personnel Management shall design a set of systems, including appropriate metrics, for assessing the management of human capital by Federal agencies.
(2) The systems referred to under paragraph (1) shall be defined in regulations of the Office of Personnel Management and include standards for—
(A)(i) aligning human capital strategies of agencies with the missions, goals, and organizational objectives of those agencies; and
(ii) integrating those strategies into the budget and strategic plans of those agencies;
(B) closing skill gaps in mission critical occupations;
(C) ensuring continuity of effective leadership through implementation of recruitment, development, and succession plans;
(D) sustaining a culture that cultivates and develops a high performing workforce;
(E) developing and implementing a knowledge management strategy supported by appropriate investment in training and technology; and
(F) holding managers and human resources officers accountable for efficient and effective human resources management in support of agency missions in accordance with merit system principles.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| [Uncodified]. | 1949 Reorg. Plan No. 5, §§1, 2(a) (35th through 46th words), 3, eff. Aug. 20, 1949, |
|
| July 31, 1956, ch. 804, §201(b), |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
2002—Subsec. (c).
1986—Subsec. (a)(9).
Subsec. (b)(4).
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 2002 Amendment
Effective Date of 1978 Amendment
Amendment by
§1104. Delegation of authority for personnel management
(a) Subject to subsection (b)(3) of this section—
(1) the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management; and
(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations (except competitive examinations for administrative law judges appointed under
(b)(1) The Office shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.
(2) The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection.
(3) Nothing in subsection (a) of this section shall be construed as affecting the responsibility of the Director to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.
(4) At the request of the head of an agency to whom a function has been delegated under subsection (a)(2), the Office may provide assistance to the agency in performing such function. Such assistance shall, to the extent determined appropriate by the Director of the Office, be performed on a reimbursable basis through the revolving fund established under section 1304(e).
(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b)(2) of this section or otherwise, that any action taken by an agency pursuant to authority delegated under subsection (a)(2) of this section is contrary to any law, rule, or regulation, or is contrary to any standard established under subsection (b)(1) of this section, the agency involved shall take any corrective action the Office may require.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| [Uncodified]. | 1949 Reorg. Plan No. 5, §2(a) (less 35th through 46th words), (b), eff. Aug. 20, 1949, |
|
| Sept. 28, 1959, |
In the first sentence, the word "officers" is omitted as included in "employees".
Subsection (a)(1) is added on authority of the words "to secure accuracy, uniformity, and justice in all their proceedings" in the first sentence of former section 635, which is carried into section 1105. The function in this paragraph was transferred from the chief examiner to the Chairman of the United States Civil Service Commission by 1949 Reorg. Plan No. 5, §2(a)(2).
In subsection (a)(4), the words "requests for appropriations" are substituted for "budget estimates" on authority of the Act of Sept. 12, 1950, ch. 946, §102(f),
In subsection (b)(2), the word "prescription" is substituted for "promulgation" and the words "now vested in the Commission" are omitted as surplusage.
In subsection (b)(4), the words "as is now authorized to be taken by the Commission" are omitted as surplusage.
In subsection (b)(5), the words "civil service" are substituted for "Federal service".
In subsection (b)(7), the words "submission of requests for appropriations" are substituted for "revision and submission . . . of budget estimates" on authority of the Act of Sept. 12, 1950, ch. 946, §102(f),
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
| Section of title 5 | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1104(a)(6) | 5:8713(a). | [None.] |
| [Uncodified]. | 1965 Reorg. Plan No. 4, §§11(a), (e) (as applicable to (a)), 12 (as applicable to §11(a)), 13 (as applicable to §11(a)), eff. July 27, 1965, |
The paragraph added by this section is based on
Editorial Notes
Amendments
1995—Subsec. (a).
Subsec. (a)(2).
Subsec. (b)(4).
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1105. Administrative procedure
Subject to
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §3 (less last 24 words of 6th sentence, and less 7th sentence), |
||
| [Uncodified]. | 1949 Reorg. Plan No. 5, §4, eff. Aug. 19, 1949, |
In subsection (a), the words "the District of Columbia" are substituted for "Washington". The words "at least three individuals in the service of the United States" are substituted for a "a suitable number of persons, not less than three, in the official service of the United States". So much of the first three sentences of former section 635 as related to the offices of the Chief Examiner and the Secretary are omitted because the offices were abolished by 1949 Reorg. Plan No. 5, §4. So much of the first sentence as imposed a duty on the Chief Examiner, under the Commission's direction, to act with the examining boards to secure accuracy, uniformity, and justice in all their proceedings is restated in section 1104(a)(1). The fourth sentence of former section 635, authorizing the Commission to employ a stenographer and a messenger, is omitted as obsolete. The remainder is rewritten for clarity. The text of 1949 Reorg. Plan No. 5, §4, is omitted as executed.
In subsection (b), the words "Chairman, United States Civil Service Commission" are substituted for "chief examiner" on authority of 1949 Reorg. Plan No. 5, §2(a)(2). The words "at all times" are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
CHAPTER 12 —MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, AND EMPLOYEE RIGHT OF ACTION
SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD
SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL
SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
Editorial Notes
Amendments
1989—
1 So in original. Does not conform to section catchline.
SUBCHAPTER I—MERIT SYSTEMS PROTECTION BOARD
Editorial Notes
Amendments
1989—
§1201. Appointment of members of the Merit Systems Protection Board
The Merit Systems Protection Board is composed of 3 members appointed by the President, by and with the advice and consent of the Senate, not more than 2 of whom may be adherents of the same political party. The members of the Board shall be individuals who, by demonstrated ability, background, training, or experience are especially qualified to carry out the functions of the Board. No member of the Board may hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President. The Board shall have an official seal which shall be judicially noticed. The Board shall have its principal office in the District of Columbia and may have field offices in other appropriate locations.
(Added
Editorial Notes
Amendments
1989—
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Effective Date
Subchapter effective 90 days after Oct. 13, 1978, see section 907 of
Short Title of 1989 Amendment
Savings Provision
"(a)
"(b)
"(c)
Whistleblower Protection; Congressional Statement of Findings and Purpose
"(a)
"(1) Federal employees who make disclosures described in
"(2) protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service; and
"(3) in passing the Civil Service Reform Act of 1978 [
"(b)
"(1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and
"(2) establishing—
"(A) that the primary role of the Office of Special Counsel is to protect employees, especially whistleblowers, from prohibited personnel practices;
"(B) that the Office of Special Counsel shall act in the interests of employees who seek assistance from the Office of Special Counsel; and
"(C) that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration."
Terms of Office of Members
§1202. Term of office; filling vacancies; removal
(a) The term of office of each member of the Merit Systems Protection Board is 7 years.
(b) A member appointed to fill a vacancy occurring before the end of a term of office of the member's predecessor serves for the remainder of that term. Any appointment to fill a vacancy is subject to the requirements of section 1201. Any new member serving only a portion of a seven-year term in office may continue to serve until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire, unless reappointed.
(c) Any member appointed for a 7-year term may not be reappointed to any following term but may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire under this section.
(d) Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
(Added
Editorial Notes
Amendments
1989—
Subsec. (b).
1987—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Amendment by
§1203. Chairman; Vice Chairman
(a) The President shall from time to time appoint, by and with the advice and consent of the Senate, one of the members of the Merit Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board.
(b) The President shall from time to time designate one of the members of the Board as Vice Chairman of the Board. During the absence or disability of the Chairman, or when the office of Chairman is vacant, the Vice Chairman shall perform the functions vested in the Chairman.
(c) During the absence or disability of both the Chairman and the Vice Chairman, or when the offices of Chairman and Vice Chairman are vacant, the remaining Board member shall perform the functions vested in the Chairman.
(Added
Editorial Notes
Amendments
1989—Subsec. (a).
Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Amendment by
§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,
(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
(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
(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
(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
(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
(n) The Board may accept and use gifts and donations of property and services to carry out the duties of the Board.
(Added
Editorial Notes
References in Text
The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Prior Provisions
A prior section 1204 was renumbered
Amendments
2014—Subsec. (n).
2012—Subsec. (m)(1).
1994—Subsec. (a)(1).
Subsec. (m).
1992—Subsec. (a)(1).
1989—
Subsec. (a)(4).
Subsec. (b)(1).
Subsec. (b)(2).
"(A) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States or any territory or possession thereof, the Commonwealth of Puerto Rico, or the District of Columbia; and
"(B) order the taking of depositions and order responses to written interrogatories."
Subsec. (b)(3).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (f).
Subsec. (f)(1).
Subsec. (f)(2).
Subsec. (f)(3), (4).
Subsecs. (g) to (i).
Subsec. (j).
Subsecs. (k), (l).
1982—Subsec. (j).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1989 Amendment
Amendment by
Termination of Reporting Requirements
For termination, effective May 15, 2000, of reporting provisions in subsecs. (a)(3) and (l) of this section (formerly
§1205. Transmittal of information to Congress
Notwithstanding any other provision of law or any rule, regulation or policy directive, any member of the Board, or any employee of the Board designated by the Board, may transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and views on functions, responsibilities, or other matters relating to the Board, without review, clearance, or approval by any other administrative authority.
(Added
Editorial Notes
Prior Provisions
A prior section 1205 was renumbered
Amendments
1989—
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Amendment by
§1206. Annual report
The Board shall submit an annual report to the President and the Congress on its activities, which shall include a description of significant actions taken by the Board to carry out its functions under this title. The report shall also review the significant actions of the Office of Personnel Management, including an analysis of whether the actions of the Office of Personnel Management are in accord with merit system principles and free from prohibited personnel practices.
(Added
Editorial Notes
Prior Provisions
A prior section 1206, added
Amendments
1989—
Statutory Notes and Related Subsidiaries
Effective Date of 1989 Amendment
Amendment by
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in first sentence of this section relating to annual reports to Congress (formerly
[§§1207, 1208. Repealed. Pub. L. 101–12, §3(a)(8), Apr. 10, 1989, 103 Stat. 18 ]
Section 1207, added
Section 1208, added
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal of sections effective 90 days following Apr. 10, 1989, see section 11 of
[§1209. Renumbered §§1205 and 1206]
Editorial Notes
Codification
Subsecs. (a) and (b) of this section were renumbered as sections 1205 and 1206, respectively, of this title by
SUBCHAPTER II—OFFICE OF SPECIAL COUNSEL
§1211. Establishment
(a) There is established the Office of Special Counsel, which shall be headed by the Special Counsel. The Office shall have an official seal which shall be judicially noticed. The Office shall have its principal office in the District of Columbia and shall have field offices in other appropriate locations.
(b) The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel's predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.
(Added
Editorial Notes
Amendments
1994—Subsec. (b).
1989—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date
Subchapter effective 90 days following Apr. 10, 1989, see section 11 of
Allegations of Wrongdoing Against Special Counsel or Deputy Special Counsel
Transfer of Funds
§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.
(5)(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—
(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—
(I)
(II)
(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and
(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—
(I)
(II)
(B)(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (
(ii) An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.
(iii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—
(I)(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or
(bb) the material—
(AA) may not be disclosed pursuant to a court order; or
(BB) has been filed under seal under
(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—
(aa) the material being withheld; and
(bb) the reason that the material is being withheld.
(C)(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.
(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.
(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel under this subchapter.
(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).
(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
(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
(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
(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 section 2302(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).
(i) The Special Counsel shall enter into at least 1 agreement with the Inspector General of an agency under which—
(1) the Inspector General shall—
(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and
(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and
(2) the Special Counsel—
(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and
(B) may reimburse the Inspector General for services provided under the agreement.
(Added
Editorial Notes
Amendments
2017—Subsec. (b)(5), (6).
Subsec. (i).
2012—Subsec. (h).
1994—Subsec. (g)(1).
Subsec. (g)(2).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date of 2012 Amendment
Amendment by
Regulations
"(1)
"(A) the functions of the Special Counsel under subchapter II of
"(B) any functions of the Special Counsel that are required because of the amendments made by this section [enacting
"(2)
Suicide by Employees
"(a)
"(1) an employee of the agency committed suicide;
"(2) prior to the death of the employee, the employee made any disclosure of information which reasonably evidences—
"(A) any violation of any law, rule, or regulation; or
"(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
"(3) after a disclosure described in paragraph (2), a personnel action was taken against the employee.
"(b)
"(1) examine whether any personnel action was taken because of any disclosure of information described in subsection (a)(2); and
"(2) take any action the Special Counsel determines appropriate under subchapter II of
"(c)
[For definitions of "agency", "employee", and "personnel action" as used in section 105 of
Policy Statement Regarding Implementation of Whistleblower Protection Act
Annual Survey of Individuals Seeking Assistance
"(a)
"(1) determine if the individual seeking assistance was fully apprised of their rights;
"(2) determine whether the individual was successful either at the Office of Special Counsel or the Merit Systems Protection Board; and
"(3) determine if the individual, whether successful or not, was satisfied with the treatment received from the Office of Special Counsel.
"(b)
Definitions
"(1) the term 'agency'—
"(A) except as provided in subparagraph (B), means an entity that is an agency, as defined under
"(B) does not include any entity that is an element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (
"(2) the term 'employee' means an employee (as defined in
"(3) the term 'personnel action' has the meaning given that term under
§1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters
(a) This section applies with respect to—
(1) any disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences—
(A) a violation of any law, rule, or regulation; or
(B) 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; and
(2) any disclosure by an employee, former employee, or applicant for employment 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, former employee, or applicant reasonably believes evidences—
(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(b) Whenever the Special Counsel receives information of a type described in subsection (a) of this section, the Special Counsel shall review such information and, within 45 days after receiving the information, determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety.
(c)(1) Subject to paragraph (2), if the Special Counsel makes a positive determination under subsection (b) of this section, the Special Counsel shall promptly transmit the information with respect to which the determination was made to the appropriate agency head and require that the agency head—
(A) conduct an investigation with respect to the information and any related matters transmitted by the Special Counsel to the agency head; and
(B) submit a written report setting forth the findings of the agency head within 60 days after the date on which the information is transmitted to the agency head or within any longer period of time agreed to in writing by the Special Counsel.
(2) The Special Counsel may require an agency head to conduct an investigation and submit a written report under paragraph (1) only if the information was transmitted to the Special Counsel by—
(A) an employee, former employee, or applicant for employment in the agency which the information concerns; or
(B) an employee who obtained the information in connection with the performance of the employee's duties and responsibilities.
(d) Any report required under subsection (c) shall be reviewed and signed by the head of the agency and shall include—
(1) a summary of the information with respect to which the investigation was initiated;
(2) a description of the conduct of the investigation;
(3) a summary of any evidence obtained from the investigation;
(4) a listing of any violation or apparent violation of any law, rule, or regulation; and
(5) a description of any action taken or planned as a result of the investigation, such as—
(A) changes in agency rules, regulations, or practices;
(B) the restoration of any aggrieved employee;
(C) disciplinary action against any employee; and
(D) referral to the Attorney General of any evidence of a criminal violation.
(e)(1) Any report required under subsection (c) or paragraph (5) of this subsection shall be submitted to the Special Counsel, and the Special Counsel shall transmit a copy to the complainant, except as provided under subsection (f) of this section. The complainant may submit comments to the Special Counsel on the agency report within 15 days of having received a copy of the report.
(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—
(A) the findings of the head of the agency appear reasonable; and
(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).
(3) The Special Counsel shall transmit any report submitted to the Special Counsel by the head of an agency under subsection (c) or paragraph (5) of this subsection, any comments provided by the complainant pursuant to subsection (e)(1), and any appropriate comments or recommendations by the Special Counsel to the President and the congressional committees with jurisdiction over the agency which the disclosure involves.
(4) Whenever the Special Counsel does not receive the report of the agency within the time prescribed in subsection (c)(2) of this section, the Special Counsel shall transmit a copy of the information which was transmitted to the agency head to the President and the congressional committees with jurisdiction over the agency which the disclosure involves together with a statement noting the failure of the head of the agency to file the required report.
(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—
(A) containing the additional information or documentation identified by the Special Counsel; and
(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.
(f) In any case in which evidence of a criminal violation obtained by an agency in an investigation under subsection (c) of this section is referred to the Attorney General—
(1) the report shall not be transmitted to the complainant; and
(2) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral.
(g)(1) If the Special Counsel receives information of a type described in subsection (a) from an individual other than an individual described in subparagraph (A) or (B) of subsection (c)(2), the Special Counsel may transmit the information to the head of the agency which the information concerns. The head of such agency shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what action has been or is being taken and when such action shall be completed. The Special Counsel shall inform the individual of the report of the agency head.
(2) If the Special Counsel receives information of a type described in subsection (a) from an individual described in subparagraph (A) or (B) of subsection (c)(2), but does not make a positive determination under subsection (b), the Special Counsel may transmit the information to the head of the agency which the information concerns, except that the information may not be transmitted to the head of the agency without the consent of the individual. The head of such agency shall, within a reasonable time after the information is transmitted, inform the Special Counsel in writing of what action has been or is being taken and when such action will be completed. The Special Counsel shall inform the individual of the report of the agency head.
(3) If the Special Counsel does not transmit the information to the head of the agency under paragraph (2), the Special Counsel shall inform the individual of—
(A) the reasons why the disclosure may not be further acted on under this chapter; and
(B) other offices available for receiving disclosures, should the individual wish to pursue the matter further.
(h) The identity of any individual who makes a disclosure described in subsection (a) may not be disclosed by the Special Counsel without such individual's consent unless the Special Counsel determines that the disclosure of the individual's identity is necessary because of an imminent danger to public health or safety or imminent violation of any criminal law.
(i) Except as specifically authorized under this section, the provisions of this section shall not be considered to authorize disclosure of any information by any agency or any person which is—
(1) specifically prohibited from disclosure by any other provision of law; or
(2) specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
(j) With respect to any disclosure of information described in subsection (a) which involves foreign intelligence or counterintelligence information, if the disclosure is specifically prohibited by law or by Executive order, the Special Counsel shall transmit such information to the National Security Advisor, the Permanent Select Committee on Intelligence of the House of Representatives, and the Select Committee on Intelligence of the Senate.
(Added
Editorial Notes
Amendments
2017—Subsec. (b).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (e)(5).
2002—Subsec. (g)(1).
Subsec. (g)(3).
"(A) return any documents and other matter provided by the individual who made the disclosure; and
"(B) inform the individual of—
"(i) the reasons why the disclosure may not be further acted on under this chapter; and
"(ii) other offices available for receiving disclosures, should the individual wish to pursue the matter further."
1996—Subsec. (e)(3).
Subsec. (e)(4).
§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.
(6)(A) Notwithstanding any other provision of this section, not later than 30 days after the date on which the Special Counsel receives an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry if the Special Counsel determines that—
(i) the same allegation, based on the same set of facts and circumstances, had previously been—
(I)(aa) made by the individual; and
(bb) investigated by the Special Counsel; or
(II) filed by the individual with the Merit Systems Protection Board;
(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or
(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.
(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.
(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)(i) The Board may extend the period of any stay granted under subparagraph (A) for any period which the Board considers appropriate.
(ii) If the Board lacks the number of members appointed under section 1201 required to constitute a quorum, any remaining member of the Board may, upon request by the Special Counsel, extend the period of any stay granted under subparagraph (A).
(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.
(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.
(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.
(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken.
(Added
Editorial Notes
Amendments
2017—Subsec. (a)(6).
Subsec. (b)(1)(B).
Subsec. (b)(1)(B)(ii).
Subsec. (b)(1)(E).
Subsec. (i).
2012—Subsecs. (a)(3), (b)(4)(A).
Subsec. (b)(4)(B)(i).
Subsec. (b)(4)(B)(ii).
Subsec. (g)(2).
Subsec. (h).
1994—Subsec. (a)(1)(D).
Subsec. (a)(2)(A)(iv).
Subsec. (b)(2).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by
Termination Statement
§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 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
(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.
(Added
Editorial Notes
Amendments
2012—Subsec. (a)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by
§1216. Other matters within the jurisdiction of the Office of Special Counsel
(a) In addition to the authority otherwise provided 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 subchapter III of
(2) political activity prohibited under
(3) arbitrary or capricious withholding of information prohibited under section 552, except that the Special Counsel shall make no investigation of any withholding of foreign intelligence 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 decisionmaking; and
(5) involvement by any employee in any prohibited 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 investigation of any allegation of any prohibited activity referred to in subsection (a)(5), if the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure.
(c) If the Special Counsel receives an allegation concerning any matter under paragraph (1), (3), (4), or (5) of subsection (a), the Special Counsel 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
Editorial Notes
Amendments
1993—Subsec. (c).
"(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 concerning 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 involved."
Statutory Notes and Related Subsidiaries
Effective Date of 1993 Amendment; Savings Provision
Amendment by
§1217. Transmittal of information to Congress
(a)
(b)
(1)
(2)
(A) the agency that entered into the agreement;
(B) the position and employment location of the employee who submitted the allegation that formed the basis of the agreement, provided the information is not so specific as to be reasonably likely to identify the employee;
(C) the position and employment location of any employee alleged by an employee described in subparagraph (B) to have committed a prohibited personnel practice, as defined in section 2302(a)(1);
(D) a description of the allegation described in subparagraph (B); and
(E) whether the agency that entered into the agreement has agreed to pursue any disciplinary action as a result of the allegation described in subparagraph (B).
(Added
Editorial Notes
Amendments
2017—
§1218. Annual report
The Special Counsel shall submit to Congress, on an annual basis, a report regarding the activities of the Special Counsel, which shall include, for the year preceding the submission of the report—
(1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel and the costs of resolving such allegations;
(2) the number of investigations conducted by the Special Counsel;
(3) the number of stays and disciplinary actions negotiated with agencies by the Special Counsel;
(4) the number of subpoenas issued by the Special Counsel;
(5) the number of instances in which the Special Counsel reopened an investigation after the Special Counsel had made an initial determination with respect to the investigation;
(6) the actions that resulted from reopening investigations, as described in paragraph (5);
(7) the number of instances in which the Special Counsel did not make a determination before the end of the 240-day period described in section 1214(b)(2)(A)(i) regarding whether there were reasonable grounds to believe that a prohibited personnel practice had occurred, existed, or was to be taken;
(8) a description of the recommendations and reports made by the Special Counsel to other agencies under this subchapter and the actions taken by the agencies as a result of the recommendations or reports;
(9) the number of—
(A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints initiated; and
(B) stays and extensions of stays obtained from the Merit Systems Protection Board;
(10) the number of prohibited personnel practice complaints that resulted in a favorable action for the complainant, other than a stay or an extension of a stay, organized by actions in—
(A) complaints dealing with reprisals against whistleblowers; and
(B) all other complaints;
(11) the number of prohibited personnel practice complaints that were resolved by an agreement between an agency and an individual, organized by agency and agency components in—
(A) complaints dealing with reprisals against whistleblowers; and
(B) all other complaints;
(12) the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(a)(1); and
(13) the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.
(Added
Editorial Notes
Amendments
2017—
1994—
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
§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 section 1213(c)(1)(B) relating to the matter;
(C) if appropriate, not otherwise prohibited by law, and consented to by the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; 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 section 1213(g)(1).
(b) The Special Counsel shall take steps to ensure that any list or report made available to the public under this section does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs.
(Added
Editorial Notes
Amendments
2017—Subsec. (a)(1).
SUBCHAPTER III—INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
§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 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 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 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.
(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.
(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.
(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 priority to a request for a transfer submitted by the employee.
(Added
Editorial Notes
Amendments
2017—Subsec. (k).
2012—Subsec. (a).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (g)(1)(A)(ii).
Subsec. (g)(4).
Subsec. (i).
1994—Subsec. (d)(1).
Subsec. (e)(1).
"(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 Congress.
Subsec. (f)(3).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by
Effective Date
Subchapter effective 90 days following Apr. 10, 1989, see section 11 of
1 So in original. Probably should be "employee,".
§1222. Availability of other remedies
Except as provided in section 1221(i), nothing in this chapter or
(Added
CHAPTER 13 —SPECIAL AUTHORITY
Editorial Notes
Amendments
1998—
1978—
§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.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §2(1) (function of Civil Service Commission), |
The authority of the President to prescribe rules is carried into
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1302. Regulations
(a) The Office of Personnel Management, subject 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 regulations for the administration of the provisions of this title, and Executive orders issued in furtherance thereof, that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment, and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the District 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 appointment, reinstatement, reemployment, and retention, in the excepted service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.
(d) The Office may prescribe reasonable procedure and regulations for the administration of its functions under
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (a) | Jan. 16, 1883, ch. 27, §§2(2)7 (last 17 words), (3) (less last 10 words), |
|
| (b) | June 27, 1944, ch. 287, §§2 (1st 76 words), 19, |
|
| (c) | June 27, 1944, ch. 287, §§2 (1st 76 words), 11, |
|
| (d) | July 19, 1940, ch. 640 §4 "Sec. 12(d) (1st sentence)", |
Subsection (a) is based on former section 633(3) (less last 10 words). The regulation-making power conferred by that section covers the power conferred by former section 633(2)7 (last 17 words) which is, therefore, omitted. The requirement of notice is preserved in section 3304. The words "through its members or the examiners" are omitted as unnecessary in view of section 1104. The authority of the President to prescribe rules, based on former section 633(1) is carried into
In subsections (b)–(d), the word "rules" is omitted as included in "regulations".
The provisions of the Veterans' Preference Act of 1944 (former sections 851–869) to which the regulation-making authority of subsections (b) and (c) apply are carried into sections 2108, 3305(b), 3306(a)(2), 3308–3320, 3351, 3363, 3364, and 7701, subchapter I of
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—Subsecs. (a) to (d).
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
Executive Documents
Executive Order No. 10561
Ex. Ord. No. 10561, Sept. 13, 1954, 19 F.R. 5963, which related to official personnel folders, was revoked by section 2–201 of Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out as a note under
Executive Order No. 11397
Ex. Ord. No. 11397, Feb. 9, 1968, 33 F.R. 2833, formerly set out as a note under this section, which related to transitional appointments of veterans who served during the Vietnam Era, was revoked by Ex. Ord. No. 11521, Mar. 26, 1970, 35 F.R. 5311, set out as a note under
§1303. Investigations; reports
The Office of Personnel Management, Merit Systems Protection Board, and Special Counsel may investigate and report on matters concerning—
(1) the enforcement and effect of the rules prescribed by the President under this title for the administration of the competitive service and the regulations prescribed by the Office of Personnel Management under
(2) the action of an examiner, a board of examiners, and other employees concerning the execution of the provisions of this title that relate to the administration of the competitive service.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §2(4), |
The authority of the President to prescribe rules is carried into
In paragraph (2), the words "in respect to the execution of this act" are changed to "concerning the execution of the provisions of this title that relate to the administration of the competitive service" to avoid having to refer in the text to the sections of this title into which the Civil Service Act, the act referred to, is codified. These sections are: 1101, 1102, 1105, 1302(a), 1303, 1307, 1308(a)(1), 2102, 2951, 3302, 3303, 3304(a), (d), 3305(a), 3306, 3318(a), 3319(a), 3321, 7152, 7153, 7321, 7322, and 7352. The words "the provisions of this title that relate to the administration of the competitive service" will include some of the sections derived from the Veterans' Preference Act of 1944 (former sections 851–869). They are based in part on former section 860 (codified in §1302(c)). The authorization in that section to make and enforce regulations for the competitive service would include the authority to investigate and report. The words "and other employees" are substituted for "and its own subordinates, and those in the public service" in view of the definition of "employee" in section 2105.
Standard changes are made to conform with the definition applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1304. Loyalty investigations; reports; revolving fund
(a) The Office of Personnel Management shall conduct the investigations and issue the reports required by the following statutes—
(1)
(2)
(3)
(b) When an investigation under subsection (a) of this section develops data indicating that the loyalty of the individual being investigated is questionable, the Office shall refer the matter to the Federal Bureau of Investigation for a full field investigation, a report of which shall be furnished to the Office for its information and appropriate action.
(c) When the President considers it in the national interest, he may have the investigations of a group or class, which are required by subsection (a) of this section, made by the Federal Bureau of Investigation rather than the Office.
(d) The investigation and report required by subsection (a) of this section shall be made by the Federal Bureau of Investigation rather than the Office for those specific positions which the Secretary of State certifies are of a high degree of importance or sensitivity.
(e)(1) A revolving fund is available, to the Office without fiscal year limitation, for financing investigations, training, and such other functions as the Office is authorized or required to perform on a reimbursable basis, including personnel management services performed at the request of individual agencies (which would otherwise be the responsibility of such agencies), or at the request of nonappropriated fund instrumentalities, and for the cost of audits, investigations, and oversight activities, conducted by the Inspector General of the Office, of the fund and the activities financed by the fund. However, the functions which may be financed in any fiscal year by the fund are restricted to those functions which are covered by the budget estimates submitted to the Congress for that fiscal year. To the maximum extent feasible, each individual activity shall be conducted generally on an actual cost basis over a reasonable period of time.
(2) The capital of the fund consists of the aggregate of—
(A) appropriations made to provide capital for the fund, which appropriations are hereby authorized, and
(B) the sum of the fair and reasonable value of such supplies, equipment, and other assets as the Office from time to time transfers to the fund (including the amount of the unexpended balances of appropriations or funds relating to activities the financing of which is transferred to the fund) less the amount of related liabilities, the amount of unpaid obligations, and the value of accrued annual leave of employees, which are attributable to the activities the financing of which is transferred to the fund.
(3) The fund shall be credited with—
(A) advances and reimbursements from available funds of the Office or other agencies, or from other sources, for those services and supplies provided at rates estimated by the Office as adequate to recover expenses of operation (including provision for accrued annual leave of employees and depreciation of equipment); and
(B) receipts from sales or exchanges of property, and payments for loss of or damage to property, accounted for under the fund.
(4) Any unobligated and unexpended balances in the fund which the Office determines to be in excess of amounts needed for activities financed by the fund shall be deposited in the Treasury of the United States as miscellaneous receipts.
(5)(A) The Office shall prepare a business-type budget providing full disclosure of the results of operations for each of the functions performed by the Office and financed by the fund, and such budget shall be transmitted to the Congress and considered, in the manner prescribed by law for wholly owned Government corporations.
(B) Such budget shall include an estimate from the Inspector General of the Office of the amount required to pay the expenses to audit, investigate, and provide other oversight activities with respect to the fund and the activities financed by the fund.
(C) The amount requested by the Inspector General under subparagraph (B) shall not exceed .33 percent of the total budgetary authority requested by the Office under subparagraph (A).
(6) The Comptroller General of the United States shall, as a result of his periodic reviews of the activities financed by the fund, report and make such recommendations as he deems appropriate to the Committee on Governmental Affairs of the Senate and the Committee on Post Office and Civil Service of the House of Representatives.
(f) An agency may use available appropriations to reimburse the Office or the Federal Bureau of Investigation for the cost of investigations, training, and functions performed for them under this section, or to make advances toward their cost. These advances and reimbursements shall be credited directly to the applicable appropriations of the Office or the Federal Bureau of Investigation.
(g) This section does not affect the responsibility of the Federal Bureau of Investigation to investigate espionage, sabotage, or subversive acts.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (b)–(d) | Apr. 5, 1952, ch. 159, §1 (provisos), |
|
| (e) | June 5, 1952, ch. 369, §701 (par. under "Civil Service Commission"), |
|
| (f) | [Uncodified]. | Apr. 5, 1952, ch. 159, §4, |
| (g) | Apr. 5, 1952, ch. 159, §3, |
Subsection (a) is based on section 1 of the Act of April 5, 1952, as amended, and is added for clarity. In subsection (a), the reference to section 10(b)(5)(B)(i) and (B)(ii) of the Act of August 1, 1946 (
In subsection (d), the references to section 10(b)(5)(B)(i) and (ii) of the Atomic Energy Act of 1946, section 510 of the Mutual Security Act of 1951, a majority of the members of the Atomic Energy Commission, and the Director of Mutual Security (which was changed to Director of the International Cooperation Administration on authority of section 8 of 1953 Reorg. Plan No. 7,
In subsection (e), the words "There is established" are omitted as executed.
In subsection (g), the reference to statutes other than this section is omitted because nothing in those statutes affect the responsibility in question.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
References in Text
Amendments
2014—Subsec. (e)(1).
Subsec. (e)(5).
1996—Subsec. (e)(1).
1995—Subsec. (e)(6).
1994—Subsec. (e)(6).
1984—Subsec. (e)(1).
1983—Subsec. (e)(1).
1979—Subsec. (a)(1).
1978—Subsecs. (a) to (f).
1971—Subsec. (e).
1969—Subsec. (e).
Subsec. (f).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.
Effective Date of 1983 Amendment
Effective Date of 1979 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Abolition of House Committee on Post Office and Civil Service
Committee on Post Office and Civil Service of House of Representatives abolished by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. References to Committee on Post Office and Civil Service treated as referring to Committee on Government Reform and Oversight, see section 1(b) of
§1305. Administrative law judges
For the purpose of
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| June 11, 1946, ch. 324, §11 (5th sentence), |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
1967 Act
This section amends
Editorial Notes
Amendments
1998—
1992—
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by section 801(a)(3)(B)(iii) of
Amendment by section 906(a)(12) of
Effective Date of 1967 Amendment
Amendment by
Termination of Advisory Committees
Advisory committees in existence on Jan. 5, 1973, excluding committees composed wholly of full-time officers or employees of the Federal Government, to terminate not later than the expiration of the 2-year period following Jan. 5, 1973, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See
§1306. Oaths to witnesses
The Director of the Office of Personnel Management and authorized representatives of the Director may administer oaths to witnesses in matters pending before the Office.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Aug. 23, 1912, ch. 350, §1 (last par. under "Civil Service Commission"), |
||
| [Uncodified]. | 1949 Reorg. Plan No. 5, §2(c), eff. Aug. 19, 1949, |
The section is rewritten to reflect expansion of authority of the Commission to include its Chairman under section 2(c) of 1949 Reorg. Plan No. 5.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1307. Minutes
The Civil Service Commission shall keep minutes of its proceedings.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| Jan. 16, 1883, ch. 27, §2(3) (last 10 words), |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Executive Documents
Transfer of Functions
Functions vested by statute in United States Civil Service Commission transferred to Director of Office of Personnel Management (except as otherwise specified) by Reorg. Plan No. 2 of 1978, §102, 43 F.R. 36037,
[§1308. Repealed. Pub. L. 105–362, title XIII, §1302(b)(1), Nov. 10, 1998, 112 Stat. 3293 ]
Section,
CHAPTER 14 —AGENCY CHIEF HUMAN CAPITAL OFFICERS
§1401. Establishment of agency Chief Human Capital Officers
The head of each agency referred to under paragraphs (1) and (2) of
(1) advise and assist the head of the agency and other agency officials in carrying out the agency's responsibilities for selecting, developing, training, and managing a high-quality, productive workforce in accordance with merit system principles;
(2) implement the rules and regulations of the President and the Office of Personnel Management and the laws governing the civil service within the agency; and
(3) carry out such functions as the primary duty of the Chief Human Capital Officer.
(Added
Statutory Notes and Related Subsidiaries
Effective Date
Chapter effective 180 days after Nov. 25, 2002, see section 1305 of
Chief Human Capital Officers Council
"(a)
"(1) the Director of the Office of Personnel Management, who shall act as chairperson of the Council;
"(2) the Deputy Director for Management of the Office of Management and Budget, who shall act as vice chairperson of the Council; and
"(3) the Chief Human Capital Officers of Executive departments and any other members who are designated by the Director of the Office of Personnel Management.
"(b)
"(c)
"(d)
"(1)
"(A) A description of the activities of the Council.
"(B) A description of employment barriers that prevent the agencies of its members from hiring qualified applicants, including those for digital talent positions, and recommendations for addressing the barriers that would allow such agencies to more effectively hire qualified applicants.
"(2)
§1402. Authority and functions of agency Chief Human Capital Officers
(a) The functions of each Chief Human Capital Officer shall include—
(1) setting the workforce development strategy of the agency;
(2) assessing workforce characteristics and future needs based on the agency's mission and strategic plan;
(3) aligning the agency's human resources policies and programs with organization mission, strategic goals, and performance outcomes;
(4) developing and advocating a culture of continuous learning to attract and retain employees with superior abilities;
(5) identifying best practices and benchmarking studies,1 and
(6) applying methods for measuring intellectual capital and identifying links of that capital to organizational performance and growth.
(b) In addition to the authority otherwise provided by this section, each agency Chief Human Capital Officer—
(1) shall have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material that—
(A) are the property of the agency or are available to the agency; and
(B) relate to programs and operations with respect to which that agency Chief Human Capital Officer has responsibilities under this chapter; and
(2) may request such information or assistance as may be necessary for carrying out the duties and responsibilities provided by this chapter from any Federal, State, or local governmental entity.
(Added
1 So in original. The comma probably should be a semicolon.
CHAPTER 15 —POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES
Editorial Notes
Amendments
1974—
§1501. Definitions
For the purpose of this chapter—
(1) "State" means a State or territory or possession of the United States;
(2) "State or local agency" means the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof, or the executive branch of the District of Columbia, or an agency or department thereof;
(3) "Federal agency" means an Executive agency or other agency of the United States, but does not include a member bank of the Federal Reserve System; and
(4) "State or local officer or employee" means an individual employed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or a Federal agency, but does not include—
(A) an individual who exercises no functions in connection with that activity; or
(B) an individual employed by an educational or research institution, establishment, agency, or system which is supported in whole or in part by—
(i) a State or political subdivision thereof;
(ii) the District of Columbia; or
(iii) a recognized religious, philanthropic, or cultural organization.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| (1) | July 19, 1940, ch. 640, §4 "Sec. 19", |
|
| (2), (3) | July 19, 1940, ch. 640, §4 "Sec. 12(f)", |
|
| (4) | July 19, 1940, ch. 640, §4 "Sec 12(a) (1st 41 words), (e)", |
|
| Oct. 24, 1942, ch. 620 "Sec. 21 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, |
||
| (5) | July 19, 1940, ch. 640, §4 "Sec. 15 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, |
In paragraph (4)(B), the words "or by any Territory or Territorial possession of the United States" are omitted in view of the definition of "State" in paragraph (1).
In paragraph (5), the words "July 19, 1940" are substituted for "at the time this section takes effect".
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
2012—Par. (2).
Par. (4)(B).
1974—Par. (5).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Effective Date of 1974 Amendment
Amendment by
§1502. Influencing elections; taking part in political campaigns; prohibitions; exceptions
(a) A State or local officer or employee may not—
(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office;
(2) directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of value to a party, committee, organization, agency, or person for political purposes; or
(3) if the salary of the employee is paid completely, directly or indirectly, by loans or grants made by the United States or a Federal agency, be a candidate for elective office.
(b) A State or local officer or employee retains the right to vote as he chooses and to express his opinions on political subjects and candidates.
(c) Subsection (a)(3) of this section does not apply to—
(1) the Governor or Lieutenant Governor of a State or an individual authorized by law to act as Governor;
(2) the mayor of a city;
(3) a duly elected head of an executive department of a State, municipality, or the District of Columbia who is not classified under a State, municipal, or the District of Columbia merit or civil-service system; or
(4) an individual holding elective office.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 12(a) (less 1st 41 words)", |
In subsection (a), the term "State or local officer or employee", defined in section 1501, is substituted for the first 41 words of former section 118k(a). The words "any part of his salary or compensation" are omitted as included in "anything of value".
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
2012—Subsec. (a)(3).
Subsec. (c)(3).
1974—Subsec. (a)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by
Effective Date of 1974 Amendment
Amendment by
§1503. Nonpartisan candidacies permitted
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 18 (as applicable to §12 of the Act of Aug. 2, 1939; added July 19, 1940, ch. 640, §4, |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1974—
Statutory Notes and Related Subsidiaries
Effective Date of 1974 Amendment
Amendment by
§1504. Investigations; notice of hearing
When a Federal agency charged with the duty of making a loan or grant of funds of the United States for use in an activity by a State or local officer or employee has reason to believe that the officer or employee has violated
(1) fix a time and place for a hearing; and
(2) send, by registered or certified mail, to the officer or employee charged with the violation and to the State or local agency employing him a notice setting forth a summary of the alleged violation and giving the time and place of the hearing.
The hearing may not be held earlier than 10 days after the mailing of the notice.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640 §4 "Sec. 12(b) (1st and 2d sentences, and 4th through 17th words of 3d sentence)", June 11, 1960, |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1505. Hearings; adjudications; notice of determinations
Either the State or local officer or employee or the State or local agency employing him, or both, are entitled to appear with counsel at the hearing under
(1) determine whether a violation of
(2) determine whether the violation warrants the removal of the officer or employee from his office or employment; and
(3) notify the officer or employee and the agency of the determination by registered or certified mail.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 12(b) (3d sentence, less 4th through 17th words, and 4th sentence)", June 11, 1960, |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1506. Orders; withholding loans or grants; limitations
(a) When the Merit Systems Protection Board finds—
(1) that a State or local officer or employee has not been removed from his office or employment within 30 days after notice of a determination by the Board that he has violated
(2) that the State or local officer or employee has been removed and has been appointed within 18 months after his removal to an office or employment in the same State (or in the case of the District of Columbia, in the District of Columbia) in a State or local agency which does not receive loans or grants from a Federal agency;
the Board shall make and certify to the appropriate Federal agency an order requiring that agency to withhold from its loans or grants to the State or local agency to which notice was given an amount equal to 2 years' pay at the rate the officer or employee was receiving at the time of the violation. When the State or local agency to which appointment within 18 months after removal has been made is one that receives loans or grants from a Federal agency, the Board order shall direct that the withholding be made from that State or local agency.
(b) Notice of the order shall be sent by registered or certified mail to the State or local agency from which the amount is ordered to be withheld. After the order becomes final, the Federal agency to which the order is certified shall withhold the amount in accordance with the terms of the order. Except as provided by
(c) The Board may not require an amount to be withheld from a loan or grant pledged by a State or local agency as security for its bonds or notes if the withholding of that amount would jeopardize the payment of the principal or interest on the bonds or notes.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 12(b) (less 1st 4 sentences)", June 11, 1960, |
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
2012—Subsec. (a)(2).
1978—Subsec. (a).
Subsecs. (b), (c).
Statutory Notes and Related Subsidiaries
Effective Date of 2012 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
§1507. Subpenas and depositions
(a) The Merit Systems Protection Board may require by subpena the attendance and testimony of witnesses and the production of documentary evidence relating to any matter before it as a result of this chapter. Any member of the Board may sign subpenas, and members of the Board and its examiners when authorized by the Board may administer oaths, examine witnesses, and receive evidence. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States at the designated place of hearing. In case of disobedience to a subpena, the Board may invoke the aid of a court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. In case of contumacy or refusal to obey a subpena issued to a person, the United States District Court within whose jurisdiction the inquiry is carried on may issue an order requiring him to appear before the Board, or to produce documentary evidence if so ordered, or to give evidence concerning the matter in question; and any failure to obey the order of the court may be punished by the court as a contempt thereof.
(b) The Board may order testimony to be taken by deposition at any stage of a proceeding or investigation before it as a result of this chapter. Depositions may be taken before an individual designated by the Board and having the power to administer oaths. Testimony shall be reduced to writing by the individual taking the deposition, or under his direction, and shall be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence before the Board as provided by this section.
(c) A person may not be excused from attending and testifying or from producing documentary evidence or in obedience to a subpena on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify, or produce evidence, documentary or otherwise, before the Board in obedience to a subpena issued by it. A person so testifying is not exempt from prosecution and punishment for perjury committed in so testifying.
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 12(d) (less 1st sentence)", |
In subsection (a), the word "affirmation" is omitted as included in "oath" on authority of
In subsection (c), the prohibition is restated in positive form.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—Subsec. (a).
Subsecs. (b), (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by
§1508. Judicial review
A party aggrieved by a determination or order of the Merit Systems Protection Board under
(1) the court specifically orders a stay; and
(2) the officer or employee is suspended from his office or employment while the proceedings are pending.
A copy of the petition shall immediately be served on the Board, and thereupon the Board shall certify and file in the court a transcript of the record on which the determination or order was made. The court shall review the entire record including questions of fact and questions of law. If application is made to the court for leave to adduce additional evidence, and it is shown to the satisfaction of the court that the additional evidence may materially affect the result of the proceedings and that there were reasonable grounds for failure to adduce this evidence in the hearing before the Board, the court may direct that the additional evidence be taken before the Board in the manner and on the terms and conditions fixed by the court. The Board may modify its findings of fact or its determination or order in view of the additional evidence and shall file with the court the modified findings, determination, or order; and the modified findings of fact, if supported by substantial evidence, are conclusive. The court shall affirm the determination or order, or the modified determination or order, if the court determines that it is in accordance with law. If the court determines that the determination or order, or the modified determination or order, is not in accordance with law, the court shall remand the proceeding to the Board with directions either to make a determination or order determined by the court to be lawful or to take such further proceedings as, in the opinion of the court, the law requires. The judgment and decree of the court are final, subject to review by the appropriate United States Court of Appeals as in other cases, and the judgment and decree of the court of appeals are final, subject to review by the Supreme Court of the United States on certiorari or certification as provided by
(
| Derivation | U.S. Code | Revised Statutes and Statutes at Large |
|---|---|---|
| July 19, 1940, ch. 640, §4 "Sec. 12(c)", |
In the reference to filing a written petition, "written" is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.
Editorial Notes
Amendments
1978—
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Amendment by