transmitted concurrently to the President and any other appropriate agency in the executive branch.

(Added Pub. L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 28.)

§ 1218. Annual report

The Special Counsel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohibited personnel practices filed with it, investigations conducted by it, and actions initiated by it before the Merit Systems Protection Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this subchapter, and the actions taken by the agencies as a result of the reports or recommendations. The report required by this section shall include whatever recommendations for legislation or other action by Congress the Special Counsel may consider appropriate. (Added Pub. L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29.)

§ 1219. Public information

(a) The Special Counsel shall maintain and make available to the public

(1) a list of noncriminal matters referred to heads of agencies under subsection (c) of section 1213, together with reports from heads of agencies under subsection (c)(1)(B) of such section relating to such matters;

(2) a list of matters referred to heads of agencies under section 1215(c)(2);

(3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection; and

(4) reports from heads of agencies under section 1213(g)(1).

(b) The Special Counsel shall take steps to ensure that any list or report made available to the public under this section does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs.

(Added Pub. L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29.)

sonnel practice described in section 2302(b)(8), seek corrective action from the Merit Systems Protection Board.

(b) This section may not be construed to prohibit any employee, former employee, or applicant for employment from seeking corrective action from the Merit Systems Protection Board before seeking corrective action from the Special Counsel, if such employee, former employee, or applicant for employment has the right to appeal directly to the Board under any law, rule, or regulation.

(c)(1) Any employee, former employee, or applicant for employment seeking corrective action under subsection (a) may request that the Board order a stay of the personnel action involved.

(2) Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appropriate.

(3)(A) The Board shall allow any agency which would be subject to a stay under this subsection to comment to the Board on such stay request.

(B) Except as provided in subparagraph (C), a stay granted under this subsection shall remain in effect for such period as the Board determines to be appropriate.

(C) The Board may modify or dissolve a stay under this subsection at any time, if the Board determines that such a modification or dissolution is appropriate.

(d)(1) At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board may issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that such subpoena is necessary for the development of relevant evidence.

(2) A subpoena under this subsection may be issued, and shall be enforced, in the same manner as applies in the case of subpoenas under section 1204.

(e)(1) Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under section 2302(b)(8), the Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure described under section 2302(b)(8) was a contributing factor in the personnel action which was taken or is to be taken against such employee, former employee, or applicant.

(2) Corrective action under paragraph (1) may not be ordered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.

(f)(1) A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section.

(2) A decision to terminate an investigation under subchapter II may not be considered in

any action or other proceeding under this section.

(g)(1) If an employee, former employee, or applicant for employment is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney's fees and any other reasonable costs incurred.

(2) If an employee, former emloyee,1 or applicant for employment is the prevailing party in an appeal from the Merit Systems Protection Board, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney's fees and any other reasonable costs incurred, regardless of the basis of the decision.

(h)(1) An employee, former employee, or applicant for employment adversely affected or aggrieved by a final order or decision of the Board under this section may obtain judicial review of the order or decision.

(2) A petition for review under this subsection shall be filed with such court, and within such time, as provided for under section 7703(b).

(i) Subsections (a) through (h) shall apply in any proceeding brought under section 7513(d) if, or to the extent that, a prohibited personnel practice as defined in section 2302(b)(8) is alleged.

(j) In determining the appealability of any case involving an allegation made by an individual under the provisions of this chapter, neither the status of an individual under any retirement system established under a Federal statute nor any election made by such individual under any such system may be taken into account.

(Added Pub. L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 29.)

EFFECTIVE DATE

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

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1212, 1214, 1222, 2303 of this title; title 10 section 2409a; title 22 section 4139.

§ 1222. Availability of other remedies

Except as provided in section 1221(i), nothing in this chapter or chapter 23 shall be construed to limit any right or remedy available under a provision of statute which is outside of both this chapter and chapter 23.

(Added Pub. L. 101-12, § 3(a)(13), Apr. 10, 1989, 103 Stat. 31.)

CHAPTER 13-SPECIAL AUTHORITY

§ 1305. Administrative law judges

For the purpose of sections 3105, 3344, 4301(2)(D), and 5372 of this title and the provi

1 So in original. Probably should be "employee".

sions of section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may investigate, require reports by agencies, issue reports, including an annual report to Congress, prescribe regulations, appoint advisory committees as necessary, recommend legislation, subpena witnesses and records, and pay witness fees as established for the courts of the United States.

(As amended Pub. L. 102-378, § 2(4), Oct. 2, 1992, 106 Stat. 1346.)

AMENDMENTS

1992-Pub. L. 102-378 substituted "sections 3105" for "section 3105".

CHAPTER 15-POLITICAL ACTIVITY OF CERTAIN STATE AND LOCAL EMPLOYEES

CHAPTER REFERRED TO IN OTHER SECTIONS This chapter is referred to in sections 1212, 1215, 1216, 1302, 4703 of this title; title 23 section 142; title 42 sections 2996e, 3056, 4728, 9851; title 49 App. section 1604.

§ 1502. Influencing elections; taking part in political campaigns; prohibitions; exceptions

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1503, 1504, 1505, 1506 of this title; title 42 section 9851.

PART III-EMPLOYEES
Subpart D-Pay and Allowances

Subpart A-General Provisions

CHAPTER 21-DEFINITIONS

§ 2101. Civil service; armed forces; uniformed services SHORT TITLE OF 1990 AMENDMENT

Pub. L. 101-508, title VII, § 7202(a), Nov. 5, 1990, 104 Stat. 1388-335, provided that: "This section (amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under section 2105 of this title] may be cited as the 'Portability of Benefits for Nonappropriated Fund Employees Act of 1990'." COORDINATION OF TITLE VII OF PUB. L. 101-508 WITH SECTION 909 OF TITLE 2

Pub. L. 101-508, title VII, § 7301, Nov. 5, 1990, 104 Stat. 1388-341, provided that: "For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirmation Act of 1987 [probably means section 202 of the Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. 100-119, which was formerly classified to section 909 of Title 2, The Congress], this title and the amendments made by this title [amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions

set out as notes under this section and sections 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of this title, amending provisions set out as notes under sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under subsection (b) of such section."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 18 section 207; title 22 section 3641; title 41 section 423.

§ 2102. The competitive service

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3132 of this title; title 10 section 1744; title 16 section 3198; title 22 section 3641; title 28 section 569; title 36 section 121; title 42 section 2000e; title 49 App. section 1348a.

§ 2103. The excepted service

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 10 section 1744; title 49 App. section 1348a.

§ 2104. Officer

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 902 of this title; title 18 section 202; title 50 section 426.

§ 2105. Employee

[See main edition for text of (a) and (b)] (c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy Ship's Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—

(1) laws administered by the Office of Personnel Management, except

(A) section 7204;

(B) as otherwise specifically provided in this title;

(C) the Fair Labor Standards Act of 1938; (D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or

(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title. This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

[See main edition for text of (d) and (e)] (As amended Pub. L. 101-508, title VII, § 7202(b), Nov. 5, 1990, 104 Stat. 1388-335; Pub.

L. 103-3, title II, § 201(b), Feb. 5, 1993, 107 Stat. 23.)

REFERENCES IN TEXT

The Fair Labor Standards Act of 1938, referred to in subsec. (c)(1)(C), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified principally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

AMENDMENTS

1993-Subsec. (c)(1)(E). Pub. L. 103-3 added subpar.

(E).

1990-Subsec. (c)(1). Pub. L. 101-508, § 7202(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "laws (other than subchapter IV of chapter 53 of this title, subchapter III of chapter 83 of this title to the extent provided in section 8332(b)(16) of this title, and sections 5550 and 7204 of this title) administered by the Office of Personnel Management; or".

Subsec. (c)(2). Pub. L. 101-508, § 7202(b)(2), inserted "(except to the extent specifically provided therein)” after "chapter 84".

EFFECTIVE DATE OF 1993 AMENDMENT

Amendment by Pub. L. 103-3 effective 6 months after Feb. 5, 1993, see section 405(b)(1) of Pub. L. 103-3, set out as an Effective Date note under section 2601 of Title 29, Labor.

EFFECTIVE DATE OF 1990 AMENDMENT

Section 7202(m) of Pub. L. 101-508 provided that: "(1) The amendments made by this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title] shall apply with respect to any individual who, on or after January 1, 1987

"(A) moves without a break in service of more than 3 days from employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard that is described in section 2105(c) of title 5, United States Code, to employment in the Department of Defense or the Coast Guard, respectively, that is not described in such section 2105(c); or

"(B) moves without a break in service from employment in the Department of Defense or the Coast Guard that is not described in such section 2105(c) to employment in a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, respectively, that is described in such section 2105(c).

"(2) The Secretary of Defense, the Secretary of Transportation, the Director of the Office of Personnel Management, and the Executive Director of the Federal Retirement Thrift Investment Board, as applicable, shall take such actions as may be practicable to ensure that each individual who has moved as described under paragraph (1) on or after January 1, 1987, and before the date of enactment of this Act [Nov. 5, 1990], receives the benefit of the amendments made by this section as if such amendments had been in effect at the time such individual so moved. Each such individual who wishes to make an election of retirement coverage under the amendments made by subsection (j) or (k) of this section (amending sections 8331, 8347, 8401, and 8461 of this title] shall complete such election within 180 days after the date of enactment of this Act."

TREATMENT OF INDIVIDUALS ELECTING TO REMAIN SUBJECT TO THEIR FORMER RETIREMENT SYSTEM Section 7202(n) of Pub. L. 101-508, as amended by Pub. L. 102-378, § 5(a)(2), Oct. 2, 1992, 106 Stat. 1358, provided that:

"(1) For the purpose of this section [amending this section and sections 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provisions set out as notes under this section and section 2101 of this title], the term 'nonappropriated fund instrumentality' means a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard, described in section 2105(c) of title 5, United States Code.

"(2)(A) If an individual makes an election under section 8347(q)(1) of title 5, United States Code, to remain covered by subchapter III of chapter 83 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and contribute to the Thrift Savings Fund such sums as are required for such individual in accordance with section 8351 of such title.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act [Nov. 5, 1990), becomes eligible to make an election under section 8347(q)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2) [set out as a note above], make any election described in section 8432(b)(1)(A) of such title.

"(3)(A) If an individual makes an election under section 8461(n)(1) of title 5, United States Code, to remain covered by chapter 84 of such title, any nonappropriated fund instrumentality thereafter employing such individual shall deduct from such individual's pay and shall contribute to the Thrift Savings Fund the funds deducted, together with such other sums as are required for such individual under subchapter III of such chapter.

"(B) Notwithstanding subsection (a) or (b) of section 8432 of title 5, United States Code, any individual who, as of the date of enactment of this Act, becomes eligible to make an election under section 8461(n)(1) of such title may, within 30 days after such individual makes an election thereunder in accordance with subsection (m)(2), make any election described in section 8432(b)(1)(A) of such title.

“(4) If an individual makes an election under section 8347(q)(2) or 8461(n)(2) of title 5, United States Code, to remain covered by a retirement system established for employees described in section 2105(c) of such title, any Government agency thereafter employing such individual shall, in lieu of any deductions or contributions for which it would otherwise be responsible with respect to such individual under chapter 83 or 84 of such title, make such deductions from pay and such contributions as would be required (under the retirement system for nonappropriated fund employees involved) if it were a nonappropriated fund instrumentality. Any such deductions and contributions shall be remitted to the Department of Defense or the Coast Guard, as applicable, for transmission to the appropriate retirement system."

[Amendment by Pub. L. 102-378 to section 7202(n) of Pub. L. 101-508, set out above, effective Nov. 5, 1990, see section 9(b)(6) of Pub. L. 102-378, set out as an Effective Date of 1992 Amendment note under section 6303 of this title.]

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3502, 3551, 5334, 5335, 5342, 5365, 5506, 5515, 5537, 5551, 5552, 5581, 5595, 5751, 5945, 5946, 6103, 6104, 6121, 6301, 6308, 6322, 6323, 6385, 7103, 7119, 7342, 7905, 8171, 8172, 8173, 8311, 8331, 8332, 8347, 8401, 8461, 8701, 8901 of this title; title 10 sections 975, 1587; title 18 section 202; title 19 section 2081; title 22 sections 4341, 4833; title 25 section 4501; title 26 section 7608; title 42 section 3374; title 50 section 426.

§ 2106. Member of Congress

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 5520a, 7342, 8311, 8331, 8401, 8701, 8901 of this title.

§ 2107. Congressional employee

TRANSFER OF FUNCTIONS

Certain functions of Clerk of House of Representatives transferred to Director of Non-legislative and Financial Services by section 7 of House Resolution No. 423, One Hundred Second Congress, Apr. 9, 1992.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 5531, 8331, 8401, 8701, 8901 of this title; title 2 section 31b-5; title 22 section 3008; title 26 section 7448; title 31 section 774; title 38 section 7297.

§ 2108. Veteran; disabled veteran; preference eligible For the purpose of this title

[See main edition for text of (1)]

(2) "disabled veteran" means an individual who has served on active duty in the armed forces, has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department;

[See main edition for text of (3) to (5)] (As amended Pub. L. 102-54, § 13(b)(1), June 13, 1991, 105 Stat. 274.)

AMENDMENTS

1991-Par. (2). Pub. L. 102-54 substituted "Department of Veterans Affairs" for "Veterans' Administration".

[See main edition for text of (b) and (c)]

(As amended Pub. L. 101-474, § 5(c), Oct. 30, 1990, 104 Stat. 1099.)

AMENDMENTS

1990-Subsec. (a). Pub. L. 101-474 redesignated par. (3) as (2) and struck out former par. (2) which provided that this section is applicable to Administrative Office of United States Courts.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2302, 4107, 5379 of this title; title 10 section 1722; title 22 section 3902; title 31 section 732; title 42 section 2297b-4.

§ 2302. Prohibited personnel practices

(a) [See main edition for text of (1)] (2) For the purpose of this section—

[See main edition for text of (A) and (B)]

(C) "agency" means an Executive agency and the Government Printing Office, but does not include

[See main edition for text of (i) to (iii)]

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority

[See main edition for text of (1)]

(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action except as provided under section 3303(f);

[See main edition for text of (3) to (7)】

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such 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) any disclosure to the Special Counsel, 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) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(9) take or fail to take, or threaten to take or fail to take, any personnel action against

any employee or applicant for employment because of

(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);

(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(D) for refusing to obey an order that would require the individual to violate a law;

[See main edition for text of (10) and (11)] This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.

[See main edition for text of (c) and (d)] (As amended Pub. L. 101-12, § 4, Apr. 10, 1989, 103 Stat. 32; Pub. L. 101-474, § 5(d), Oct. 30, 1990, 104 Stat. 1099; Pub. L. 102-378, § 2(5), Oct. 2, 1992, 106 Stat. 1346; Pub. L. 103-94, § 8(c), Oct. 6, 1993, 107 Stat. 1007.)

AMENDMENTS

1993-Subsec. (b)(2). Pub. L. 103-94 amended par. (2) generally. Prior to amendment, par. (2) read as follows: "solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of

“(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

"(B) an evaluation of the character, loyalty, or suitability of such individual;".

1992-Subsec. (b)(8)(B). Pub. L. 102-378 substituted "Special Counsel" for "Special Counsel of the Merit Systems Protection Board".

1990-Subsec. (a)(2)(C). Pub. L. 101-474 struck out ", the Administrative Office of the United States Courts," after "means an Executive agency".

1989-Subsec. (b)(8). Pub. L. 101-12, § 4(a), in introductory provision inserted ", or threaten to take or fail to take," after "fail to" and substituted "because of" for "as a reprisal for", in subpar. (A) substituted "any disclosure" for "a disclosure", in subpar. (A)(ii) inserted "gross" before "mismanagement", in subpar. (B) substituted "any disclosure" for "a disclosure", and in subpar. (B)(ii) inserted "gross" before "mismanagement".

Subsec. (b)(9). Pub. L. 101-12, § 4(b), amended par. (9) generally. Prior to amendment, par. (9) read as follows: "take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;".

EFFECTIVE DATE OF 1993 Amendment; Savings
PROVISION

Amendment by Pub. L. 103-94 effective 120 days after Oct. 6, 1993, but not to release or extinguish any penalty, forfeiture, or liability incurred under amended provision, which is to be treated as remaining in force for purpose of sustaining any proper proceeding or action for enforcement of that penalty, forfeiture,