CHAPTER 12-MERIT SYSTEMS PROTECTION BOARD AND SPECIAL COUNSEL 1. 2. 03. 14. 15. Appointment of members of the Merit Systems Protection Board. Term of office; filling vacancies; removal. Chairman; Vice Chairman. Special counsel; appointment and removal. Powers and functions of the Merit Systems Protection Board and Special 6. Authority and responsibilities of the Special Counsel. 7. 18. 9. Hearings and decisions on complaints filed by the Special Counsel. Stays of certain personnel actions. 201. Appointment of members of the Merit Systems Protection Board The Merit Systems Protection Board is composed of 3 members pointed by the President, by and with the advice and consent of e Senate, not more than 2 of whom may be adherents of the same litical party. The Chairman and members of the Board shall be dividuals who, by demonstrated ability, background, training, or perience are especially qualified to carry out the functions of the bard. No member of the Board may hold another office or position the Government of the United States, except as otherwise provided law or at the direction of the President. The Board shall have an icial seal which shall be judicially noticed. The Board shall have ; principal office in the District of Columbia and may have field ices in other appropriate locations. (Pub. L. 95-454, Oct. 13, 1978, Stat. 1122.) 1202. Term of office, filling vacancies; removal (a) The term of office of each member of the Merit Systems Proction Board is 7 years. (b) A member appointed to fill a vacancy occurring before the end a term of office of his predecessor serves for the remainder of that rm. Any appointment to fill a vacancy is subject to the requirements section 1201 of this title. (c) Any member appointed for a 7-year term may not be reapinted to any following term but may continue to serve beyond the piration of the term until a successor is appointed and has qualified, cept that such member may not continue to serve for more than one ar after the date on which the term of the member would otherwise pire under this section. (d) Any member may be removed by the President only for efficiency, neglect of duty, or malfeasance in office. (Pub. L. 95-454, ct. 13, 1978, 92 Stat. 1122.) 57-903 0 - 80 - 6 § 1203. Chairman; Vice Chairman (a) The President shall from time to time, appoint, by and with the advice and consent of the Senate, one of the members of the Meri Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board (b) The President shall from time to time designate one of the members of the Board as Vice Chairman of the Board. During the absence or disability of the Chairman, or when the office of Chairma is vacant, the Vice Chairman shall perform the functions vested in th Chairman. (c) During the absence or disability of both the Chairman ani Vice Chairman, or when the offices of Chairman and Vice Chairm are vacant, the remaining Board member shall perform the functio vested in the Chairman. (Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1122 § 1204. Special Counsel; appointment and removal The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the adva and consent of the Senate, for a term of 5 years. A Special Couns appointed to fill a vacancy occurring before the end of a term of offe of his predecessor serves for the remainder of the term. The Speci Counsel may be removed by the President only for inefficiency, negle of duty, or malfeasance in office. (Pub. L. 95-454, Oct, 13, 1978, £ Stat. 1122.) § 1205. Powers_and_functions of the Merit Systems Protectio Board and Special Counsel (a) The Merit Systems Protection Board shall (1) hear, adjudicate, or provide for the hearing or adjudi tion, of all matters within the jurisdiction of the Board under the title, section 2023 of title 38, or any other law, rule, or regulatio and, subject to otherwise applicable provisions of law, take fins action on any such matter; (2) order any Federal agency or employee to comply w any order or decision issued by the Board under the authori granted under paragraph (1) of this subsection and enforce con pliance with any such order; (3) conduct, from time to time, special studies relating to t civil service and to other merit systems in the executive brand and report to the President and to the Congress as to whethe the public interest in a civil service free of prohibited personne practices is being adequately protected; and (4) review, as provided in subsection (e) of this section, rula and regulations of the Office of Personnel Management. (b) (1) Any member of the Merit Systems Protection Board, t Special Counsel, any administrative law judge appointed by the Boar under section 3105 of this title, and any employee of the Board desig nated by the Board may administer oaths, examine witnesses, take de ositions, and receive evidence. (2) Any member of the Board, the Special Counsel, and ar administrative law judge appointed by the Board under section 310 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. (3) Witnesses (whether appearing voluntarily or under subpena) all be paid the same fee and mileage allowances which are paid bpenaed witnesses in the courts of the United States. (c) In the case of contumacy or failure to obey a subpena issued der subsection (b) (2) of this section, the United States district urt for the judicial district in which the person to whom the subpena addressed resides or is served may issue an order requiring such rson to appear at any designated place to testify or to produce >cumentary or other evidence. Any failure to obey the order of the urt may be punished by the court as a contempt thereof. (d) (1) In any proceeding under subsection (a) (1) of this section, y member of the Board may request from the Director of the Office Personnel Management an advisory opinion concerning the interetation of any rule, regulation, or other policy directive promulited by the Office of Personnel Management. (2) În enforcing compliance with any order under subsection (a) ?) of this section, the Board may order that any employee charged ith complying with such order, other than an employee appointed the President by and with the advice and consent of the Senate, all not be entitled to receive payment for service as an employee iring any period that the order has not been complied with. The oard shall certify to the Comptroller General of the United States at such an order has been issued and no payment shall be made out the Treasury of the United States for any service specified in such der. (3) In carrying out any study under subsection (a)(3) of this ction, the Board shall make such inquiries as may be necessary and, less otherwise prohibited by law, shall have access to personnel cords or information collected by the Office and may require addional reports from other agencies as needed. (e) (1) At any time after the effective date of any rule or regulaon issued by the Director in carrying out functions under section 103 of this title, the Board shall review any provision of such rule 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 > 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) of this title; 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 230; (b) of this title. (3) (A) The Director of the Office of Personnel Management, and the head of any agency implementing any provision of any rule or reg ulation under review pursuant to this subsection, shall have the right to participate in such review. (B) Any review conducted by the Board pursuant to this subsection shall be limited to determining (i) the validity on its face of the provision under review; and (ii) whether the provision under review has been valid implemented. (C) The Board shall require any agency (i) to cease compliance with any provisions of any rule c regulation which the Board declares under this subsection to be invalid on its face; and (ii) to correct any invalid implementation by the agency of any provision of any rule or regulation which the Board declare under this subsection to have been invalidly implemented by the agency. (f) The Board may delegate the performance of any of its admir istrative functions under this title to any employee of the Board. (g) The Board shall have the authority to prescribe such regul tions as may be necessary for the performance of its functions. Th Board shall not issue advisory opinions. All regulations of the Boar shall be published in the Federal Register. (h) Except as provided in section 518 of title 28, relating to litig tion before the Supreme Court, attorneys designated by the Chairma of the Board may appear for the Board, and represent the Board. any civil action brought in connection with any function carried o by the Board pursuant to this title or as otherwise authorized by la (i) The Chairman of the Board may appoint such personnel may be necessary to perform the functions of the Board. Any appoint ment made under this subsection shall comply with the provisions c this title, except that such appointment shall not be subject to th approval or supervision of the Office of Personnel Management or th Executive Office of the President (other than approval required unde section 3324 or subchapter VIII of chapter 33 of this title). (j) The Board shall prepare and submit to the President, and, § the same time, to the appropriate committees of Congress, an annua budget of the expenses and other items relating to the Board whic shall, as revised, be included as a separate item in the budget require: to be transmitted to the Congress under section 201 of the Budget and d Accounting Act, 1921 (31 U.S.C. 11). (k) The Board shall submit to the President, and, at the same time b to each House of the Congress, any legislative recommendations of the Board relating to any of its functions under this title. (Pub. Lt 95-454, Oct. 13, 1978, 92 Stat. 1124.) 206. Authority and responsibilities of the Special Counsel a) (1) The Special Counsel shall receive any allegation of a proited personnel practice and shall investigate the allegation to the ent necessary to determine whether there are reasonable grounds to ieve that a prohibited personnel practice has occurred, exists, or is be taken. (2) If the Special Counsel terminates any investigation under ragraph (1) of this subsection, the Special Counsel shall prepare transmit to any person on whose allegation the investigation was tiated a written statement notifying the person of the termination the investigation and the reasons therefor. (3) In addition to authority granted under paragraph (1) of this section, the Special Counsel may, in the absence of an allegation, duct an investigation for the purpose of determining whether re are reasonable grounds to believe that a prohibited personnel actice has occurred, exists, or is to be taken. (b) (1) In any case involving (A) any disclosure of information by an employee or applicant for employment which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; if the disclosure is not specifically prohibited by law and if the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or (B) a disclosure by an employee or applicant for employment to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; e identify of the employee or applicant may not be disclosed without consent of the employee or applicant during any investigation der subsection (a) of this section or under paragraph (3) of this bsection, unless the Special Counsel determines that the disclosure the identity of the employee or applicant is necessary in order to rry out the functions of the Special Counsel. (2) Whenever the Special Counsel receives information of the type scribed in paragraph (1) of this subsection, the Special Counsel all promptly transmit such information to the appropriate agency ad. (3) (A) In the case of information received by the Special Counsel der paragraph (1) of this section, if, after such review as the Speal Counsel determines practicable (but not later than 15 days after |