§1401 — Title 2 The Congress | U.S. Code

Summary

Sets the steps for handling a covered employee’s claim that rights under Part A were broken. First, the employee files a claim. A hearing officer does an initial review. If both sides agree, they can try mediation. If mediation is not used or does not resolve things, there can be a formal hearing, review by the Board, and then an appeal to the U.S. Court of Appeals for the Federal Circuit. A covered employee who files a claim on time and who has not asked for a hearing may instead sue in a U.S. District Court within a 70-day window after filing the claim. If the hearing officer gives a written notice saying the employee may sue, the employee has up to 90 days after that notice to file. If the employee files a court case, the hearing officer’s initial review stops and no more review by that officer happens. The Office for the Architect of the Capitol or the Capitol Police may ask an employee to try those offices’ grievance steps first; any claim deadlines that haven’t passed when that starts are put on hold while the employee uses those grievance steps. Definitions used here: “direct Act” — certain named laws; “direct provision” — a rule in a direct Act that applies to Library employees; “Library claimant” — a Library of Congress employee covered by a direct provision. A Library claimant can switch between these Office procedures and the agency procedures within set time limits (including a 10-day option after the hearing officer’s report), and switching preserves original filing deadlines. Anyone may have a lawyer at any time. Parties and their lawyers must not file things for bad reasons and must have legal and factual support for their claims and denials. This does not override section 1361(d)(2).

Title 2, §1401

The Congress — Source: USLM XML via OLRC

(a)Except as otherwise provided, the procedure for consideration of an alleged violation of part A of subchapter II consists of—

(1)the filing of a claim by the covered employee alleging the violation, as provided in section 1402 of this title;

(2)the preliminary review of the claim, to be conducted by a hearing officer as provided in section 1402a of this title;

(3)mediation as provided in section 1403 of this title, if requested and agreed to by the parties under that section; and

(4)a formal hearing as provided in section 1405 of this title, subject to Board review as provided in section 1406 of this title and judicial review in the United States Court of Appeals for the Federal Circuit as provided in section 1407 of this title.

(b)(1)Only a covered employee who has filed a claim timely as provided in section 1402 of this title and who has not submitted a request for a hearing on the claim pursuant to section 1405(a) of this title may, during the period described in paragraph (3), file a civil action in a District Court of the United States with respect to the violation alleged in the claim, as provided in section 1408 of this title.

(2)Notwithstanding paragraph (2), (3), or (4) of subsection (a), if the covered employee files such a civil action—

(A)the preliminary review of the claim by the hearing officer as provided in section 1402a of this title shall terminate upon the filing of the action by the covered employee; and

(B)the procedure for consideration of the alleged violation shall not include any further review of the claim by the hearing officer as provided in section 1402a of this title.

(3)The period described in this paragraph with respect to a claim is the 70-day period which begins on the date the covered employee files the claim under section 1402 of this title.

(4)Notwithstanding paragraph (3), if a covered employee receives a written notice from the hearing officer under section 1402a(d)(2) of this title that the employee has the right to file a civil action with respect to the claim in accordance with section 1408 of this title, the covered employee may file the civil action not later than 90 days after receiving such written notice.

(c)In the case of an employee of the Office of the Architect of the Capitol or of the Capitol Police, the Office, after receiving a claim filed under section 1402 of this title, may recommend that the employee use the grievance procedures of the Architect of the Capitol or the Capitol Police for resolution of the employee’s grievance for a specific period of time. Any deadline in this chapter relating to a claim for which the employee is using the grievance procedures, that has not already passed by the first day of that specific period, shall be stayed during that specific period.

(d)(1)In this subsection:

(A)The term “direct Act” means an Act (other than this Act), or provision of the Revised Statutes, that is specified in section 1311, 1312, or 1313 of this title.

(B)The term “direct provision” means a provision (including a definitional provision) of a direct Act that applies the rights or protections of a direct Act (including rights and protections relating to nonretaliation or noncoercion) to a Library claimant.

(C)The term “Library claimant” means, with respect to a direct provision, an employee of the Library of Congress who is covered by that direct provision.

(2)A Library claimant who initially files a claim for an alleged violation as provided in section 1402 of this title may, at any time before the date that is 10 days after a hearing officer submits the report on the preliminary review of the claim under section 1402a(c) of this title, elect to bring the claim for a proceeding before the corresponding Federal agency under the corresponding direct provision, instead of continuing with the procedures applicable to the claim under this subchapter or filing a civil action in accordance with section 1408 of this title.

(3)A Library claimant who initially brings a claim, complaint, or charge under a direct provision for a proceeding before a Federal agency may, prior to requesting a hearing under the agency’s procedures, elect to—

(A)continue with the agency’s procedures and preserve the option (if any) to bring any civil action relating to the claim, complaint, or charge, that is available to the Library claimant; or

(B)file a claim with the Office under section 1402 of this title and continue with the corresponding procedures of this title available and applicable to a covered employee.

(4)A Library claimant who meets the initial deadline under section 1402(d) of this title for filing a claim under this subchapter, or any initial deadline for bringing a claim, complaint, or charge under the applicable direct provision, and then elects to change to alternative procedures as described in paragraph (2) or (3)(B), shall be considered to meet any initial deadline for the alternative procedures.

(5)This subsection shall take effect and shall apply as described in section 153(c) of the Legislative Branch Appropriations Act, 2018 (Public Law 115–141) (except to the extent such section applies to any violation of section 1331 of this title or a provision of an Act specified in section 1331 of this title).

(e)Nothing in this chapter may be construed to limit the authority of any individual (including a covered employee, the head of an employing office, or an individual who is alleged to have committed personally an act which consists of a violation of part A of subchapter II) to retain counsel to protect the interests of the individual at any point during any of the procedures provided under this title for the consideration of an alleged violation of part A of subchapter II, including as provided under section 1415(d)(8) of this title with respect to individuals subject to a reimbursement requirement of section 1415(d) of this title.

(f)Any party in any of the procedures provided under this subchapter, as well as any counsel or other person representing a party in any of such procedures, shall have an obligation to ensure that, to the best of the party’s knowledge, information, and belief, as formed after an inquiry which is reasonable under the circumstances, each of the following is correct:

(1)No pleading, written motion, or other paper is presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of resolution of the matter.

(2)The claims, defenses, and other legal contentions the party advocates are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

(3)The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further review or discovery.

(4)The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(g)Nothing in this chapter shall be construed to supersede or limit section 1361(d)(2) of this title.

Notes & Related Subsidiaries

Editorial Notes

References in Text

Part A of subchapter II, referred to in subsecs. (a) and (e), was in the original “part A of title II”, meaning part A (§§ 201–207) of title II of Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 7, which is classified principally to part A of subchapter II of this chapter. For complete classification of part A to the Code, see Tables. This chapter, referred to in subsecs. (c), (d)(1)(A), (2), (e), and (g), was in the original “this Act”, meaning Pub. L. 104–1, Jan. 23, 1995, 109 Stat. 3, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 1301 of this title and Tables. section 153(c) of the Legislative Branch Appropriations Act, 2018, referred to in subsec. (d)(5), is Pub. L. 115–141, div. I, title I, § 153(c), Mar. 23, 2018, 132 Stat. 787, set out as a note under section 1301 of this title.

Amendments

2018—Pub. L. 115–397 amended section generally. Prior to amendment, section related to procedure for consideration of alleged violations, consisting of three pars. Par. (3). Pub. L. 115–141, § 153(b)(1)(A), struck out “either” after “section 1404 of this title, of” in introductory provisions. Par. (3)(C). Pub. L. 115–141, § 153(b)(1)(B)–(D), added subpar. (C).

Statutory Notes and Related Subsidiaries

Effective Date

of 2018 AmendmentAmendment by Pub. L. 115–397 effective upon expiration of the 180-day period beginning on Dec. 21, 2018, with provisions for effect on pending proceedings, see section 401 of Pub. L. 115–397, set out as a note under section 1301 of this title.

§1401 Procedure for Consideration of Alleged Violations