
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC1204]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
          PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
 
 CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
                      AND EMPLOYEE RIGHT OF ACTION
 
              SUBCHAPTER I--MERIT SYSTEMS PROTECTION BOARD
 
Sec. 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, chapter 43 of title 38, or any other law, rule, or 
    regulation, and, subject to otherwise applicable provisions of law, 
    take final action on any such matter;
        (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 section 3105 of 
this title, and any employee of the Board designated by the Board may 
administer oaths, examine witnesses, take depositions, and receive 
evidence.
    (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 section 518 of title 28, relating to 
litigation before the Supreme Court, attorneys designated by the 
Chairman of the Board may appear for the Board, and represent the Board, 
in any civil action brought in connection with any function carried out 
by the Board pursuant to this title or as otherwise authorized by law.
    (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 chapter 33).
    (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 section 1105 of title 31.
    (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 involved 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 section 2302(b)(1) of this 
title, the payment of attorney fees shall be in accordance with the 
standards prescribed under section 706(k) of the Civil Rights Act of 
1964 (42 U.S.C. 2000e-5(k)).

(Added Pub. L. 95-454, title II, Sec. 202(a), Oct. 13, 1978, 92 Stat. 
1122, Sec. 1205; amended Pub. L. 97-258, Sec. 3(a)(2), Sept. 13, 1982, 
96 Stat. 1063; renumbered Sec. 1204 and amended Pub. L. 101-12, 
Sec. 3(a)(7), Apr. 10, 1989, 103 Stat. 17; Pub. L. 102-568, title V, 
Sec. 506(c)(4), Oct. 29, 1992, 106 Stat. 4341; Pub. L. 103-353, 
Sec. 2(b)(2)(A), Oct. 13, 1994, 108 Stat. 3169; Pub. L. 103-424, Sec. 2, 
Oct. 29, 1994, 108 Stat. 4361; Pub. L. 103-446, title XII, 
Sec. 1203(c)(1), Nov. 2, 1994, 108 Stat. 4690.)

                       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 section 1211(b) of this title by 
Pub. L. 101-12, Sec. 3(a)(6). Pub. L. 102-378, Sec. 2(3), Oct. 2, 1992, 
106 Stat. 1346, struck out section catchline of prior section 1204.


                               Amendments

    1994--Subsec. (a)(1). Pub. L. 103-446, which directed the amendment 
of par. (1) by substituting ``section 4303'' for ``section 4323'' could 
not be executed because the phrase ``section 4323'' does not appear in 
text subsequent to the intervening amendment by Pub. L. 103-353 
substituting ``chapter 43'' for ``section 4323''. See below.
    Pub. L. 103-353 substituted ``chapter 43'' for ``section 4323''.
    Subsec. (m). Pub. L. 103-424 added subsec. (m).
    1992--Subsec. (a)(1). Pub. L. 102-568 substituted ``4323'' for 
``2023''.
    1989--Pub. L. 101-12, Sec. 3(a)(7), renumbered section 1205 of this 
title as this section.
    Pub. L. 101-12, Sec. 3(a)(7)(A), struck out ``and Special Counsel'' 
after ``Board'' in section catchline.
    Subsec. (a)(4). Pub. L. 101-12, Sec. 3(a)(7)(A), (C), substituted 
``subsection (f)'' for ``subsection (e) of this section''.
    Subsec. (b)(1). Pub. L. 101-12, Sec. 3(a)(7)(A), struck out ``the 
Special Counsel,'' after ``Board,''.
    Subsec. (b)(2). Pub. L. 101-12, Sec. 3(a)(7)(D), amended par. (2) 
generally. Prior to amendment, par. (2) read as follows: ``Any member of 
the Board, the Special Counsel, and any administrative law judge 
appointed by the Board under section 3105 of this title may--
        ``(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). Pub. L. 101-12, Sec. 3(a)(7)(B), substituted 
``subpoena'' for ``subpena'' and ``subpoenaed'' for ``subpenaed''.
    Subsec. (c). Pub. L. 101-12, Sec. 3(a)(7)(B), (E), substituted 
``subpoena'' for ``subpena'' in two places, ``(b)(2)(A) or section 
1214(b), upon application by the Board'' for ``(b)(2) of this section'', 
and ``for the district'' for ``for the judicial district''.
    Subsec. (d). Pub. L. 101-12, Sec. 3(a)(7)(F), added subsec. (d). 
Former subsec. (d) redesignated (e).
    Subsec. (e). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated former 
subsec. (d) as (e). Former subsec. (e) redesignated (f).
    Subsec. (e)(1). Pub. L. 101-12, Sec. 3(a)(7)(A), (G)(i), designated 
existing provisions as subpar. (A), struck out ``of this section'' after 
``subsection (a)(1)'', and added subpar. (B).
    Subsec. (e)(2). Pub. L. 101-12, Sec. 3(a)(7)(G)(ii), designated 
existing provisions as subpar. (A), struck out ``of this section'' after 
``subsection (a)(2)'', and added subpar. (B).
    Subsec. (e)(3). Pub. L. 101-12, Sec. 3(a)(7)(A), (G)(iii), struck 
out ``of this section'' after ``subsection (a)(3)'' and inserted ``of 
Personnel Management'' after ``Office''.
    Subsec. (f). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated former 
subsec. (e) as (f). Former subsec. (f) redesignated (g).
    Subsec. (f)(1). Pub. L. 101-12, Sec. 3(a)(7)(H)(i), inserted ``of 
the Office of Personnel Management'' after ``Director'' and struck out 
``of this title'' after ``section 1103''.
    Subsec. (f)(2). Pub. L. 101-12, Sec. 3(a)(7)(H)(ii), inserted comma 
after ``subsection'' and in subpars. (A) and (B) struck out ``of this 
title'' after ``section 2302(b)''.
    Subsec. (f)(3), (4). Pub. L. 101-12, Sec. 3(a)(7)(H)(iii), struck 
out ``(A)'' before ``The Director'', struck out subpar. (B) which 
provided that any review conducted by the Board be limited to 
determining the validity on its face of the provision under review and 
whether the provision under review has been validly implemented, and 
redesignated former subpar. (C) and cls. (i) and (ii) of former subpar. 
(C) as par. (4) and subpars. (A) and (B), respectively, of par. (4).
    Subsecs. (g) to (i). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated 
former subsecs. (f) to (h) as (g) to (i), respectively. Former subsec. 
(i) redesignated (j).
    Subsec. (j). Pub. L. 101-12, Sec. 3(a)(7)(F), (I), redesignated 
former subsec. (i) as (j) and substituted ``chapter 33'' for ``chapter 
33 of this title''. Former subsec. (j) redesignated (k).
    Subsecs. (k), (l). Pub. L. 101-12, Sec. 3(a)(7)(F), redesignated 
former subsecs. (j) and (k) as (k) and (l), respectively.
    1982--Subsec. (j). Pub. L. 97-258 substituted ``section 1105 of 
title 31'' for ``section 201 of the Budget and Accounting Act, 1921 (31 
U.S.C. 11)''.


                    Effective Date of 1994 Amendments

    Section 14 of Pub. L. 103-424 provided that: ``The provisions of 
this Act [amending this section and sections 1211, 1212, 1214, 1218, 
1221, 2105, 2302, 4313, 7121, and 8348 of this title, enacting 
provisions set out as notes under sections 1212 and 1214 of this title 
and section 1441a of Title 12, Banks and Banking, and amending 
provisions set out as a note under section 5509 of this title] and the 
amendments made by this Act shall be effective on and after the date of 
the enactment of this Act [Oct. 29, 1994].''
    Amendment by Pub. L. 103-353 effective with respect to reemployments 
initiated on or after the first day after the 60-day period beginning 
Oct. 13, 1994, with transition rules, see section 8 of Pub. L. 103-353, 
set out as an Effective Date note under section 4301 of Title 38, 
Veterans' Benefits.


                    Effective Date of 1989 Amendment

    Amendment by Pub. L. 101-12 effective 90 days following Apr. 10, 
1989, see section 11 of Pub. L. 101-12, set out as a note under section 
1201 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 1212, 1221 of this title.
