PRIA, Government Policy, Made Personal

Summary

If the Special Counsel finds that an employee committed a forbidden personnel practice, broke a law or rule under the Special Counsel’s authority, or willfully refused to follow a Merit Systems Protection Board order, the Special Counsel must write a complaint and give it to the employee and the Board. The employee gets time to answer in writing and orally, can give evidence and affidavits, can have a lawyer or representative, can have a hearing before the Board or an assigned judge, can get a transcript, and will receive a written decision as soon as possible. The Board can order removal, demotion, debarment from federal work for up to 5 years, suspension, reprimand, a civil fine up to $1,000, or any mix of these penalties. The Board may discipline an employee even if protected activity helped cause the action, unless the employee shows it is more likely than not they would have acted the same way without that activity. There is no internal appeal from the Board’s final order, but the employee may ask a court to review it under the law. For certain high-level presidential appointees confirmed by the Senate, the complaint and response go to the President instead of the Board. For members of the uniformed services and people working for contractors, the Special Counsel can send discipline recommendations to the agency head, and that agency head must report back to the Special Counsel within 60 days about what was done or will be done.

Title 5, §1215

Government Organization and Employees, Source: USLM XML via OLRC

(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 chapter 15, the Board shall consider the case in accordance with the provisions of such chapter.

(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.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2012—Subsec. (a)(3). Pub. L. 112–199 amended par. (3) generally. Prior to amendment, par. (3) read as follows: “A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.”

Statutory Notes and Related Subsidiaries

Effective Date

of 2012 AmendmentAmendment by Pub. L. 112–199 effective 30 days after Nov. 27, 2012, see section 202 of Pub. L. 112–199, set out as a note under section 1204 of this title.

§1215 Disciplinary Action