
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 5USC7701]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
           Subpart F--Labor-Management and Employee Relations
 
                           CHAPTER 77--APPEALS
 
Sec. 7701. Appellate procedures

    (a) An employee, or applicant for employment, may submit an appeal 
to the Merit Systems Protection Board from any action which is 
appealable to the Board under any law, rule, or regulation. An appellant 
shall have the right--
        (1) to a hearing for which a transcript will be kept; and
        (2) to be represented by an attorney or other representative.

Appeals shall be processed in accordance with regulations prescribed by 
the Board.
    (b)(1) The Board may hear any case appealed to it or may refer the 
case to an administrative law judge appointed under section 3105 of this 
title or other employee of the Board designated by the Board to hear 
such cases, except that in any case involving a removal from the 
service, the case shall be heard by the Board, an employee experienced 
in hearing appeals, or an administrative law judge. The Board, 
administrative law judge, or other employee (as the case may be) shall 
make a decision after receipt of the written representations of the 
parties to the appeal and after opportunity for a hearing under 
subsection (a)(1) of this section. A copy of the decision shall be 
furnished to each party to the appeal and to the Office of Personnel 
Management.
    (2)(A) If an employee or applicant for employment is the prevailing 
party in an appeal under this subsection, the employee or applicant 
shall be granted the relief provided in the decision effective upon the 
making of the decision, and remaining in effect pending the outcome of 
any petition for review under subsection (e), unless--
        (i) the deciding official determines that the granting of such 
    relief is not appropriate; or
        (ii)(I) the relief granted in the decision provides that such 
    employee or applicant shall return or be present at the place of 
    employment during the period pending the outcome of any petition for 
    review under subsection (e); and
        (II) the employing agency, subject to the provisions of 
    subparagraph (B), determines that the return or presence of such 
    employee or applicant is unduly disruptive to the work environment.

    (B) If an agency makes a determination under subparagraph 
(A)(ii)(II) that prevents the return or presence of an employee at the 
place of employment, such employee shall receive pay, compensation, and 
all other benefits as terms and conditions of employment during the 
period pending the outcome of any petition for review under subsection 
(e).
    (C) Nothing in the provisions of this paragraph may be construed to 
require any award of back pay or attorney fees be paid before the 
decision is final.
    (3) With respect to an appeal from an adverse action covered by 
subchapter V of chapter 75, authority to mitigate the personnel action 
involved shall be available, subject to the same standards as would 
apply in an appeal involving an action covered by subchapter II of 
chapter 75 with respect to which mitigation authority under this section 
exists.
    (c)(1) Subject to paragraph (2) of this subsection, the decision of 
the agency shall be sustained under subsection (b) only if the agency's 
decision--
        (A) in the case of an action based on unacceptable performance 
    described in section 4303 or a removal from the Senior Executive 
    Service for failure to be recertified under section 3393a, is 
    supported by substantial evidence; or
        (B) in any other case, is supported by a preponderance of the 
    evidence.

    (2) Notwithstanding paragraph (1), the agency's decision may not be 
sustained under subsection (b) of this section if the employee or 
applicant for employment--
        (A) shows harmful error in the application of the agency's 
    procedures in arriving at such decision;
        (B) shows that the decision was based on any prohibited 
    personnel practice described in section 2302(b) of this title; or
        (C) shows that the decision was not in accordance with law.

    (d)(1) In any case in which--
        (A) the interpretation or application of any civil service law, 
    rule, or regulation, under the jurisdiction of the Office of 
    Personnel Management is at issue in any proceeding under this 
    section; and
        (B) the Director of the Office of Personnel Management is of the 
    opinion that an erroneous decision would have a substantial impact 
    on any civil service law, rule, or regulation under the jurisdiction 
    of the Office;

the Director may as a matter of right intervene or otherwise participate 
in that proceeding before the Board. If the Director exercises his right 
to participate in a proceeding before the Board, he shall do so as early 
in the proceeding as practicable. Nothing in this title shall be 
construed to permit the Office to interfere with the independent 
decisionmaking of the Merit Systems Protection Board.
    (2) The Board shall promptly notify the Director whenever the 
interpretation of any civil service law, rule, or regulation under the 
jurisdiction of the Office is at issue in any proceeding under this 
section.
    (e)(1) Except as provided in section 7702 of this title, any 
decision under subsection (b) of this section shall be final unless--
        (A) a party to the appeal or the Director petitions the Board 
    for review within 30 days after the receipt of the decision; or
        (B) the Board reopens and reconsiders a case on its own motion.

The Board, for good cause shown, may extend the 30-day period referred 
to in subparagraph (A) of this paragraph. One member of the Board may 
grant a petition or otherwise direct that a decision be reviewed by the 
full Board. The preceding sentence shall not apply if, by law, a 
decision of an administrative law judge is required to be acted upon by 
the Board.
    (2) The Director may petition the Board for a review under paragraph 
(1) of this subsection only if the Director is of the opinion that the 
decision is erroneous and will have a substantial impact on any civil 
service law, rule, or regulation under the jurisdiction of the Office.
    (f) The Board, or an administrative law judge or other employee of 
the Board designated to hear a case, may--
        (1) consolidate appeals filed by two or more appellants, or
        (2) join two or more appeals filed by the same appellant and 
    hear and decide them concurrently,

if the deciding official or officials hearing the cases are of the 
opinion that the action could result in the appeals' being processed 
more expeditiously and would not adversely affect any party.
    (g)(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, 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 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)).
    (h) The Board may, by regulation, provide for one or more 
alternative methods for settling matters subject to the appellate 
jurisdiction of the Board which shall be applicable at the election of 
an applicant for employment or of an employee who is not in a unit for 
which a labor organization is accorded exclusive recognition, and shall 
be in lieu of other procedures provided for under this section. A 
decision under such a method shall be final, unless the Board reopens 
and reconsiders a case at the request of the Office of Personnel 
Management under subsection (e) of this section.
    (i)(1) Upon the submission of any appeal to the Board under this 
section, the Board, through reference to such categories of cases, or 
other means, as it determines appropriate, shall establish and announce 
publicly the date by which it intends to complete action on the matter. 
Such date shall assure expeditious consideration of the appeal, 
consistent with the interests of fairness and other priorities of the 
Board. If the Board fails to complete action on the appeal by the 
announced date, and the expected delay will exceed 30 days, the Board 
shall publicly announce the new date by which it intends to complete 
action on the appeal.
    (2) Not later than March 1 of each year, the Board shall submit to 
the Congress a report describing the number of appeals submitted to it 
during the preceding fiscal year, the number of appeals on which it 
completed action during that year, and the number of instances during 
that year in which it failed to conclude a proceeding by the date 
originally announced, together with an explanation of the reasons 
therefor.
    (3) The Board shall by rule indicate any other category of 
significant Board action which the Board determines should be subject to 
the provisions of this subsection.
    (4) It shall be the duty of the Board, an administrative law judge, 
or employee designated by the Board to hear any proceeding under this 
section to expedite to the extent practicable that proceeding.
    (j) In determining the appealability under this section of any case 
involving a removal from the service (other than the removal of a 
reemployed annuitant), neither an individual's status under any 
retirement system established by or under Federal statute nor any 
election made by such individual under any such system may be taken into 
account.
    (k) The Board may prescribe regulations to carry out the purpose of 
this section.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 530; Pub. L. 95-454, title II, 
Sec. 205, Oct. 13, 1978, 92 Stat. 1138; Pub. L. 96-54, Sec. 2(a)(45), 
Aug. 14, 1979, 93 Stat. 384; Pub. L. 99-386, title II, Sec. 208, Aug. 
22, 1986, 100 Stat. 824; Pub. L. 101-12, Sec. 6, Apr. 10, 1989, 103 
Stat. 33; Pub. L. 101-194, title V, Sec. 506(b)(6), Nov. 30, 1989, 103 
Stat. 1758; Pub. L. 101-280, Sec. 6(d)(2), May 4, 1990, 104 Stat. 160; 
Pub. L. 101-376, Sec. 3, Aug. 17, 1990, 104 Stat. 462; Pub. L. 102-175, 
Sec. 5, Dec. 2, 1991, 105 Stat. 1223; Pub. L. 102-378, Sec. 2(56), Oct. 
2, 1992, 106 Stat. 1354.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Revised Statutes and
     Derivation                U.S. Code             Statutes at Large
------------------------------------------------------------------------
                     5 U.S.C. 863 (less 1st 168    June 27, 1944, ch.
                      words, and less 2d            287, Sec.  14 (less
                      proviso).                     1st 168 words, and
                                                    less 2d proviso), 58
                                                    Stat. 390.
                                                   Aug. 4, 1947, ch.
                                                    447, 61 Stat. 723.
                     5 U.S.C. 868 (proviso).       June 22, 1948, ch.
                                                    604, 62 Stat. 575.
------------------------------------------------------------------------

    The application of the section is established by the words ``A 
preference eligible employee as defined by section 7511 of this title''. 
Specific mention of the actions appealable are covered by the reference 
to ``an adverse decision under section 7512 of this title''. The words 
``administrative authority'' are substituted for ``administrative 
officer'' to avoid conflict with the definitions of ``employee'' and 
``officer'' in chapter 21 of this title and to include an individual who 
is employed by the government of the District of Columbia or who is a 
member of a uniformed service as such an individual could have been an 
``administrative officer'' under former section 863. The words ``the 
date of'' in the phrase ``after the date of receipt of notice'' are 
omitted as unnecessary. The words ``reasonable rules and'' in the phrase 
``reasonable rules and regulations'' are omitted as unnecessary. The 
word ``proper'' in the phrase ``proper administrative officer'' is 
omitted as unnecessary. The word ``designated'' in the phrase 
``designated representative'' is omitted as unnecessary.
    Standard changes are made to conform with the definitions applicable 
and the style of this title outlined in preface to the report.

                       References in Text

    The civil service law, referred to in subsecs. (d) and (e)(2), is 
set out in this title. See, particularly, section 3301 et seq. of this 
title.


                               Amendments

    1992--Subsec. (c)(1)(A). Pub. L. 102-378 amended subpar. (A) 
generally. Prior to amendment, subpar. (A) read as follows: ``in the 
case of an action based on unacceptable performance described in section 
4303 or a removal from the Senior Executive Service for failure to be 
recertified under section 3393a of this title, is supported by 
substantial evidence, or''.
    1991--Subsec. (b)(3). Pub. L. 102-175 added par. (3).
    1990--Subsec. (c)(1)(A). Pub. L. 101-280 amended Pub. L. 101-194, 
see 1989 Amendment note below.
    Subsecs. (j), (k). Pub. L. 101-376 added subsec. (j) and 
redesignated former subsec. (j) as (k).
    1989--Subsec. (b). Pub. L. 101-12 designated existing provisions as 
par. (1) and added par. (2).
    Subsec. (c)(1)(A). Pub. L. 101-194, as amended by Pub. L. 101-280, 
which directed the substitution of ``or a removal from the Senior 
Executive Service for failure to be recertified under section 3393a of'' 
for ``of'', was executed by making the substitution for the second 
reference to ``of'' as the probable intent of Congress.
    1986--Subsec. (i)(2). Pub. L. 99-386 substituted ``fiscal'' for 
``calendar''.
    1979--Subsec. (e)(1). Pub. L. 96-54, Sec. 2(a)(45)(A), substituted 
``administrative'' for ``administration''.
    Subsec. (g)(1). Pub. L. 96-54, Sec. 2(a)(45)(B), substituted ``(as 
the case may be)'' for ``, as the case may be,''.
    Subsec. (h). Pub. L. 96-54, Sec. 2(a)(45)(C), substituted 
``subsection (e)'' for ``subsection (d)''.
    1978--Pub. L. 95-454 substituted ``Appellate procedures'' for 
``Appeals of preference eligibles'' in section catchline, and in text 
substituted provisions relating to procedures applicable with respect to 
the Merit Systems Protection Board for an employee or applicant for 
employment, for provisions relating to appeals of preference eligible 
employees.


                    Effective Date of 1990 Amendment

    Amendment by Pub. L. 101-376 effective Aug. 17, 1990, and applicable 
with respect to any appeal or other proceeding brought on or after such 
date, see section 4 of Pub. L. 101-376, set out as a note under section 
4303 of this title.


                    Effective Date of 1989 Amendments

    Amendment by Pub. L. 101-194 effective Jan. 1, 1991, see section 
506(d) of Pub. L. 101-194, set out as a note under section 3151 of this 
title.
    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.


                    Effective Date of 1979 Amendment

    Amendment by Pub. L. 96-54 effective July 12, 1979, see section 2(b) 
of Pub. L. 96-54, set out as a note under section 305 of this title.


                    Effective Date of 1978 Amendment

    Amendment by Pub. L. 95-454 effective 90 days after Oct. 13, 1978, 
see section 907 of Pub. L. 95-454, set out as a note under section 1101 
of this title.


                            Savings Provision

    For effect of Pub. L. 101-12 on orders, rules, and regulations 
issued before effective date of Pub. L. 101-12, administrative 
proceedings pending at time provisions of Pub. L. 101-12 take effect, 
and suits and other proceedings as in effect immediately before 
effective date of Pub. L. 101-12, see section 7 of Pub. L. 101-12, set 
out as a note under section 1201 of this title.


                  Termination of Reporting Requirements

    For termination, effective May 15, 2000, of reporting provisions in 
subsec. (i)(2) of this section, see section 3003 of Pub. L. 104-66, as 
amended, set out as a note under section 1113 of Title 31, Money and 
Finance, and page 177 of House Document No. 103-7.

                        Executive Order No. 11787

    Ex. Ord. No. 11787, June 11, 1974, 39 F.R. 20675; Ex. Ord. No. 
12107, Dec. 28, 1978, 44 F.R. 1055, which provided that the appeals 
system established by the Merit Systems Protection Board is the sole 
system of appeal for an employee covered by that appeal system, was 
revoked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R. 7237.

                  Section Referred to in Other Sections

    This section is referred to in sections 1212, 2105, 2302, 3395a, 
3592, 3593, 3595, 4303, 5596, 7121, 7513, 7543, 7702, 7703, 8347, 8451, 
8461 of this title; title 10 section 1610; title 22 sections 1438, 4137; 
title 28 section 569; title 31 section 753.
