of additional evidence to the extent it considers necessary to supplement the record. (5) (A) If the Commission concurs pursuant to paragraph (3) (A) of this subsection in the decision of the Board, the decision of the Board shall be a judicially reviewable action. (B) If the Commission issues any decision under paragraph (3) (B) of this subsection, the Commission shall immediately refer the matter to the Board. (c) Within 30 days after receipt by the Board of the decision of the Commission under subsection (b) (5) (B) of this section, the Board shall consider the decision and— or (1) concur and adopt in whole the decision of the Commission; (2) to the extent that the Board finds that, as a matter of law, (A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or (B) the Commission decision involving such provision is not supported by the evidence in the record as a whole (i) reaffirm the initial decision of the Board; or (ii) reaffirm the initial decision of the Board with such revisions as it determines appropriate. If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action. (d) (1) If the Board takes any action under subsection (c) (2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including (A) the factual record compiled under this section, (B) the decisions issued by the Board and the Commission under this section, and (C) any transcript of oral arguments made, or legal briefs filed, before the Board or the Commission. (2) (A) The special panel shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action. (B) The special panel shall give due deference to the respective expertise of the Board and Commission in making its decision. (3) The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision. (4) The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter. (5) Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to review on an interim basis, the action referred to in subsection (a) (1) of this section. (6) (A) Each time the Board takes any action under subsection (c) (2) of this section, a special panel shall be convened which shall consist of (i) an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened; (ii) one member of the Board designated by the Chairman of the Board each time a panel is convened; and (iii) one member of the Commission designated by the Chairman of the Commission each time a panel is convened. The chairman of the special panel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. (B) The chairman is entitled to pay at a rate equal to the maximum annual rate of basic pay payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special panel. (C) The Board and the Commission shall provide such adminis trative assistance to the special panel as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance. (e) (1) Notwithstanding any other provision of law, if at any time after (A) the 120th day following the filing of any matter described in subsection (a) (2) of this section with an agency, there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection; (B) the 120th day following the filing of an appeal with the Board under subsection (a) (1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b) (1) of this section); or (C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b) (1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section; an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717 (c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16 (c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C.. 216(b)). (2) If, at any time after the 120th day following the filing of any matter described in subsection (a) (2) of this section with an agency. there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a) (1) of this section. (3) Nothing in this section shall be construed to affect the right tc trial de novo under any provision of law described in subsection (a) (1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a) (2) of this section. (f) In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency. (Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1140; amended Pub. L. 96-54, Aug. 14, 1979, 93 Stat. 384.) § 7703. Judicial review of decisions of the Merit Systems Protection Board (a) (1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision. (2) The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent. (b) (1) Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28. Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. (2) Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717 (c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16 (c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a (c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702. (c) In any case filed in the United States Court of Claims or a United States court of appeals, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence; except that in the case of discrimination brought under any section referred to in subsection (b) (2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court. (d) The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the District of Columbia if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals. (Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1143.) SEC. CHAPTER 79-SERVICES TO EMPLOYEES 7901. Health service programs. 7902. Safety programs. 7903. Protective clothing and equipment. $7901. Health service programs (a) The head of each agency of the Government of the United States may establish, within the limits of appropriations available, a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction. (b) A health service program may be established by contract or otherwise, but only (1) after consultation with the Secretary of Health, Education, and Welfare and consideration of its recommendations; and (2) in localities where there are a sufficient number of employees to warrant providing the service. (c) A health service program is limited to (1) treatment of on-the-job illness and dental conditions requiring emergency attention; (2) preemployment and other examinations; (3) referral of employees to private physicians and dentists; and (4) preventive programs relating to health. (d) The Secretary of Health, Education, and Welfare, on request, shall review a health service program conducted under this section and shall submit comment and recommendations to the head of the agency concerned. (e) When this section authorizes the use of the professional services of physicians, that authorization includes the use of the professional services of surgeons and osteopathic practitioners within the scope of their practice as defined by State law. (f) The health programs conducted by the following agencies are not affected by this section (1) the Tennessee Valley Authority; (2) the Canal Zone Government; and (3) the Panama Canal Company. (Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 530, amended Pub. L. 90-83, $1 (47), Sept. 11, 1967, 81 Stat. 209.) $7902. Safety programs (a) For the purpose of this section (1) "employee" means an employee as defined by section 8101 of this title; and (2) "agency" means an agency in any branch of the Government of the United States, including an instrumentality wholly |