Petition for Writ of Certiorari — Jason Payne, Petitioner v. Joseph R. Biden, Jr., President of the United States, et al.

Supreme Court briefJun 16, 2023

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the District of Columbia

Circuit

(March 21, 2023) . . . . . . . . . . . . . . App. 1

Appendix B Judgment in the United States Court

of Appeals for the District of Columbia

Circuit

(March 21, 2023) . . . . . . . . . . . . . App. 19

Appendix C Memorandum Opinion in the United

States District Court for the District of

Columbia

(May 12, 2022). . . . . . . . . . . . . . . App. 21

Appendix D Order in the United States District

Court for the District of Columbia

(May 12, 2022). . . . . . . . . . . . . . . App. 46

Appendix E Statutory Provisions . . . . . . . . . . App. 48

5 U.S.C. § 1214 . . . . . . . . . . . . . . App. 48

5 U.S.C. § 2301 . . . . . . . . . . . . . . App. 60

5 U.S.C. § 2302 . . . . . . . . . . . . . . App. 63

5 U.S.C. § 7502 . . . . . . . . . . . . . . App. 78

5 U.S.C. § 7503 . . . . . . . . . . . . . . App. 79

5 U.S.C. § 7512 . . . . . . . . . . . . . . App. 81

5 U.S.C. § 7513 . . . . . . . . . . . . . . App. 83

5 U.S.C. § 7701 . . . . . . . . . . . . . . App. 85

5 U.S.C. § 7703 . . . . . . . . . . . . . . App. 91

8 U.S.C. § 1182 . . . . . . . . . . . . . . App. 98

10 U.S.C. § 1580a . . . . . . . . . . . App. 100

29 U.S.C. § 651 . . . . . . . . . . . . . App. 101

5 C.F.R. § 752.203 . . . . . . . . . . . App. 105

5 C.F.R. § 752.401 . . . . . . . . . . . App. 108

5 C.F.R. § 752.404 . . . . . . . . . . . App. 111

5 C.F.R. § 752.405 . . . . . . . . . . . App. 115

5 C.F.R. § 752.406 . . . . . . . . . . . App. 116

5 C.F.R. § 752.407 . . . . . . . . . . . App. 116

Appendix F Complaint and Exhibits in the United

States District Court for the District of

Columbia

(November 22, 2021) . . . . . . . . . App. 119

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-5154

[Filed March 21, 2023]

__________________________________________

JASON PAYNE,

)

APPELLANT

)

JOSEPH R. BIDEN, JR., PRESIDENT, ET AL.,

)

APPELLEES

)

_________________________________________ )

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-03077)

_____________________________

Argued November 2, 2022

Decided March 21, 2023

______________________________

Gene P. Hamilton argued the cause for appellant.

On the brief was Reed D. Rubinstein. Andrew Block

entered an appearance.

Daniel Winik, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief

were Brian M. Boynton, Principal Deputy Assistant

App. 2

Attorney General, and Charles W. Scarborough and

Casen Ross, Attorneys.

Before: WILKINS and WALKER, Circuit Judges, and

ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

WILKINS.

WILKINS, Circuit Judge: In 1978, Congress enacted

the Civil Service Reform Act (“CSRA”) to provide a

subset of federal employees with access to

administrative and judicial review to contest certain

adverse employment actions. The Supreme Court has

confirmed, as recently as 2012, that Congress intended

this statutory scheme to preclude district court

jurisdiction over certain claims. Elgin v. Dep’t of

Treasury, 567 U.S. 1, 5 (2012). In practice, such

preclusion does not obstruct an employee’s access to

judicial review, but instead redirects the avenue

through which the employee may proceed.

In September 2021, President Biden issued

Executive Order No. 14,043, mandating that all

executive branch employees obtain the COVID-19

vaccination, subject to medical or religious exception.

Exec. Order No. 14,043, 86 Fed. Reg. 50,989 (Sept. 9,

2021). This Order also directs the Safer Federal

Workforce Task Force to provide guidance as to how

the vaccine mandate should be implemented. Id. at

50,989–90; see Exec. Order No. 13,991, 86 Fed. Reg.

7045, 7046 (Jan. 20, 2021) (establishing the Safer

Federal Workforce Task Force). In doing so, the Task

Force outlined certain disciplinary measures to which

noncompliant federal employees may be subject.

App. 3

Petitioner Jason Payne is a civilian employee of the

Department of the Navy who contests the vaccine

mandate and has declined to comply.

On November 22, 2021—the day federal employees

were required to be vaccinated—Mr. Payne filed suit in

District Court, challenging the mandate’s

constitutionality. Characterizing Mr. Payne’s suit as a

“workplace dispute involving a covered federal

employee,” the District Court found Mr. Payne’s claims

were precluded under the CSRA and dismissed the suit

for lack of subject matter jurisdiction. Payne v. Biden,

602 F. Supp. 3d 147, 151 (D.D.C. 2022). On appeal,

Mr. Payne insists that he challenges the vaccine

mandate’s constitutionality, as opposed to contesting a

workplace dispute under the CSRA. According to his

complaint, however, he alleges that the vaccine

mandate is unconstitutional—at least in part—because

it requires that he obtain the vaccine to avoid adverse

employment action. For the reasons discussed below,

Mr. Payne’s claims contesting such adverse

employment action necessarily fall under the CSRA’s

statutory scheme. Accordingly, we affirm the District

Court.

The sole issue before us is whether the District

Court correctly found it lacked subject matter

jurisdiction to adjudicate Mr. Payne’s claims. This

jurisdictional determination rises and falls with the

CSRA’s construction.

App. 4

The CSRA is an “‘integrated scheme of

administrative and judicial review’ for aggrieved

federal employees [] designed to replace an ‘outdated

patchwork of statutes and rules’ that afforded

employees the right to challenge employing agency

actions in district courts across the country.” Elgin, 567

U.S. at 13–14 (quoting United States v. Fausto, 484

U.S. 439, 444–45 (1988)). The previous system gave

rise to inconsistent decisions concerning similar issues

and “a double layer of judicial review” that the

Supreme Court has repeatedly described as “wasteful

and irrational.” Elgin, 567 U.S. at 14 (citing Fausto,

484 U.S. at 445). In response, the CSRA “prescribe[d]

in great detail the protections and remedies” available

to federal employees challenging adverse personnel

actions and also outlined “the availability of

administrative and judicial review.” Fausto, 484 U.S. at

443.

The CSRA has three primary sections regulating

adverse personnel action, two of which are relevant

here: Chapter 23 and Chapter 75. See 5 U.S.C. §§ 4301

et seq; Fausto, 803 U.S. at 445–47.

Chapter 23 outlines the “merit system principles”

agencies must uphold. 5 U.S.C. § 2301(b). Violations of

these principles constitute “prohibited personnel

practices,” and Chapter 23 establishes the process

through which employees may contest such practices.

Id. § 2302(a). Under this process, an employee alleging

a personnel practice violation has the option of first

filing charges with the Office of Special Counsel

(“OSC”), and if the employee has “reasonable grounds

App. 5

to believe that a prohibited personnel practice has

occurred, exists, or is to be taken which requires

corrective action,” Chapter 12, governing the

investigation of prohibited personnel practices,

provides that the OSC “shall report the determination

together with any findings or recommendations” to the

Merits Systems Protection Board (“MSPB”). id.

§ 1214(b)(2)(B). Should the violation continue, the OSC

“may petition the Board,” Id. § 1214(b)(2)(C), and the

MSPB may at that point issue corrective action. The

OSC may also “bring petitions for stays, and petitions

for corrective action[.]” Id. § 1212(a)(2)(A). Importantly,

the CSRA grants the United States Court of Appeals

for the Federal Circuit jurisdiction to review the

MSPB’s final orders. See id. §§ 1214(c), 7703(b)(1)(A).

Chapter 75 addresses major adverse actions against

employees. The first subchapter governs suspensions of

fourteen days or less, see id. §§ 7501–04, and the

second subchapter governs more serious actions—

involving removal, suspensions over fourteen days,

grade reduction, pay reduction, and furlough up to

thirty days, see id. §§ 7511–15. Subchapter II provides

that a covered employee “against whom an action is

proposed is [generally] entitled to[:]” a minimum of “30

days’ advance written notice[;]” the opportunity to

respond orally and in writing; representation; and “a

written decision and the specific reasons therefor at the

earliest practicable date.” Id. § 7513(b). Decisions

under Subchapter II are appealable, first to the MSPB,

id. § 7513(d), and then to the Federal Circuit, id.

§ 7703(b). And if successful, relief under either chapter

may include reinstatement, back pay, and attorneys’

App. 6

fees. See id. §§ 1204(a)(2), (m), 5596(b); see also Elgin,

567 U.S. at 6.

Thus, while both chapters require a covered

employee to first challenge certain action before an

administrative body, as opposed to a district court, both

chapters also prescribe that it is the Federal Circuit,

not this Court, that must handle any potential judicial

review. With this understanding, we turn to the facts

and consider whether the claims at issue could be

adjudicated under either chapter.

In September 2021, President Biden issued

Executive Order No. 14,043 as part of the Executive’s

response to COVID-19. Exec. Order No. 14,043, 86 Fed.

Reg. 50,989 (Sept. 9, 2021). The Order requires that all

federal employees be vaccinated subject to “exceptions

only as required by law.” Id. at 50,990. President Biden

also created a Safer Federal Workforce Task Force to

help guide the implementation process. According to

the Task Force, employees should have received a “final

vaccination dose by November 8, 2021,” so they would

be “fully vaccinated by November 22, 2021,” and

enforcement against noncompliant employees could

begin on November 9, 2021. J.A. 49–51. “Progressive

enforcement actions” may include “[a] 5-day period of

counseling and education;” a short suspension of up to

14 days without pay; and removal “for failing to follow

a direct order.” J.A. 63–64. As for legally required

exemptions—provided “on the basis of a medical

condition or circumstance or a sincerely held religious

belief, practice or observance”—the Task Force advises

agencies to abstain from implementing disciplinary

App. 7

measures against employees with pending exemption

requests. J.A. 64. And in the case of denial, the

employee should be provided two weeks to obtain

vaccination if they so choose.

At the motion to dismiss stage, we must treat the

following well-pleaded allegations in the complaint as

true. See Hurd v. District of Columbia, 864 F.3d 671,

678 (D.C. Cir. 2017). Mr. Payne is a civilian employee

with the Department of the Navy, serving as an

engineer for the Office of Naval Research. He claims to

have gained “natural immunity” against COVID-19

after having contracted and recovered from the disease.

Compl. ¶ 7. Accordingly, Mr. Payne informed his

supervisors of his decision to decline vaccination.

On November 22, 2021, the day that all non-exempt

federal employees were required to be fully vaccinated,

Mr. Payne sued President Biden and several other

federal officials and agencies. Seeking both declaratory

and injunctive relief, Mr. Payne claims the vaccine

mandate violates the separation of powers and his

Fifth Amendment right to privacy, and places an

unconstitutional condition on his employment.

The government contested Mr. Payne’s suit on

jurisdictional grounds, arguing that Congress divested

district courts of subject matter jurisdiction over claims

challenging an Executive Order, such as these, when it

enacted the CSRA. The District Court agreed and

granted the government’s Motion to Dismiss. In its

view, the claims could be characterized as a challenge

to either “working conditions” under Chapter 23 of the

CSRA, or a termination decision under Chapter 75 of

the CSRA. Payne, 602 F. Supp. 3d at 157–59.

App. 8

Because Mr. Payne could obtain administrative and

judicial review under either chapter, the District Court

held that the CSRA applies and dismissed the case for

lack of jurisdiction. This timely appeal followed.

II.

We review de novo a district court’s dismissal of a

suit for lack of subject matter jurisdiction. See RICU

LLC v. HHS, 22 F.4th 1031, 1034 (D.C. Cir. 2022). In

doing so, we construe the complaint in the plaintiff’s

favor and grant him the benefit of all reasonable

inferences. Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137,

1139 (D.C. Cir. 2011). Applying these principles here,

we come to the same conclusion as the District Court.

As a general matter, the power of the federal courts

stems from constitutional and statutory authorization.

See Kokkonen v. Guardian Life Ins. Co. of America, 511

U.S. 375, 377 (1994). Congress, thus, may determine

certain jurisdictional bounds. See Bowles v. Russell,

551 U.S. 205, 212–13 (2007). And when Congress

establishes a specific statutory review scheme, “it is

ordinarily supposed that Congress intended that

procedure to be the exclusive means of obtaining

judicial review in those cases to which it applies.”

Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (citing

City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir.

1979)). To ensure that this is the case, however,

reviewing courts employ a two-part inquiry put forth in

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).

First, we determine whether Congress’s intent to

replace district court jurisdiction with an alternative

process of review is “fairly discernible in the statutory

scheme.” Id. at 207. Second, we analyze whether the

App. 9

“claims are of the type Congress intended to be

reviewed within this statutory structure.” Id. at 212.

Proceeding to step one under Thunder Basin, we

begin by identifying Congress’s intent. “To determine

whether it is fairly discernible that Congress precluded

district court jurisdiction over [Mr. Payne’s] claims, we

examine the CSRA’s text, structure, and purpose.”

Elgin, 567 U.S. at 10 (internal quotation marks

omitted). The Supreme Court acknowledges that it has

examined the congressional intent behind the CSRA

multiple times. See Elgin, 567 U.S. at 10. And as the

Fourth Circuit recently noted when deciding a similar

case, such Supreme Court precedent resolves this first

step. See Rydie v. Biden, No. 21-2359, 2022 WL

1153249, at *4 (4th Cir. Apr. 19, 2022) (“Thus, Elgin

resolves step one. It’s ‘fairly discernible’ that Congress

intended the CSRA to foreclose judicial review in at

least some circumstances.”) (quoting Elgin, 567 U.S. at

23).

In Elgin, the Supreme Court considered whether

the CSRA precluded district court jurisdiction such

that petitioners—federal employees who were

discharged for failing to register for the Selective

Service as required by statute—had to challenge the

statute pursuant to the CSRA. Under this first step,

the Elgin Court found that the CSRA’s “elaborate

framework” clearly “demonstrates Congress’ intent to

entirely foreclose judicial review to employees to whom

the CSRA denies statutory review.” 567 U.S. at 11

(internal quotation marks and emphasis omitted).

Thus, Elgin instructs that given “the painstaking detail

App. 10

with which the CSRA sets out the method for covered

employees to obtain review of adverse employment

actions, it is fairly discernible that Congress intended

to deny such employees an additional avenue of review

in district court.” Id. at 11–12. To further clarify, the

Elgin Court explained that the “only one situation” in

which an otherwise covered employee could proceed

before the district court, and thus outside the statutory

scheme, occurs when the employee alleges

discrimination through a violation of an enumerated

federal employment law. Id. at 13.

Accordingly, the Elgin Court rejected the

petitioners’ attempt to carve out an exception based on

the type of constitutional challenge raised, and

ultimately held that “the CSRA provides the exclusive

avenue to judicial review when a qualifying employee

challenges an adverse employment action by arguing

that a federal statute is unconstitutional.” Id. at 5. In

reviewing the same statutory scheme here, we apply

Elgin and find it “fairly discernible” that Congress

intended to preclude judicial review over claims falling

within the CSRA’s purview.

Continuing to the second step of the Thunder Basin

framework, we consider whether Mr. Payne’s

constitutional challenge is the type of claim Congress

planned to be assessed under the CSRA. A claim

generally falls outside of the special statutory scheme

only when: “(1) a finding of preclusion might foreclose

all meaningful judicial review; (2) the claim is wholly

collateral to the statutory review provisions; and (3) the

claim[] [is] beyond the expertise of the agency.” Arch

App. 11

Coal, Inc. v. Acosta, 888 F.3d 493, 500 (D.C. Cir. 2018);

see AFGE, AFL-CIO v. Trump, 929 F.3d 748, 755 (D.C.

Cir. 2019) (same). These three points function as

“general guideposts,” as opposed to a strict formula,

and each one helps shape our analysis. Jarkesy, 803

F.3d at 17. As applied here, all three factors direct us

to find the CSRA precludes Mr. Payne’s claims.

Under the first factor, we consider whether Mr.

Payne has access to meaningful judicial review. It is

important to note that the availability of meaningful

judicial review is not so strictly defined as to require

that every legal question related to a litigant’s claim be

decided in the first instance. Rather, a statutory

scheme, precluding district court jurisdiction in favor

of an administrative body that cannot adjudicate

constitutional questions pertaining to federal law, may

still satisfy this factor when such determinations are

reviewable before a court of appeals. See Elgin, 567

U.S. at 17.

Mr. Payne’s primary argument is that the CSRA

deprives him of meaningful judicial review because it

does not allow him to challenge the vaccine mandate

through a pre-enforcement claim. In practice, Mr.

Payne contends that this means he must continue

declining vaccination until adverse employment action

is enforced against him. He argues that such a

requirement would unfairly obligate him to “bet the

farm” and “violate a rule before challenging the rule’s

validity.” Appellant Br. at 32 (citing Free Enter. Fund.

v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 490–91

(2010)); see MedImmune, Inc. v. Genentech, Inc., 549

App. 12

U.S. 118, 134 (2007) (finding that a plaintiff need not

“bet the farm” by destroying a building and risking 80

percent of business prior to seeking a legal declaration

of its rights). Mr. Payne takes issue with the District

Court’s characterization of his claims as contesting a

proposed adverse personnel action because, as he

explains on appeal, he is challenging an

unconstitutional vaccine mandate. See Appellant Br. at

33. But such re-framing is inconsistent with his

overarching argument and does not alter the

jurisdictional outcome.

At the same time that Mr. Payne hinges his

standing to challenge the vaccine mandate on the

promised termination that will follow his continued

noncompliance, he also maintains that the CSRA

cannot offer him meaningful review because he is not

challenging any proposed personnel action. Again, the

jurisdictional question before the Court is whether Mr.

Payne may challenge the vaccine mandate under the

CSRA in district court. Whether Mr. Payne

characterizes his claims as challenging the immediate

injury he faces under the vaccine mandate, or the

vaccine mandate’s existence in general, we find that

either Chapter 23 or Chapter 75 provides him with a

path forward. Because Mr. Payne’s argument on appeal

is more focused on the threat of termination, we begin

with Chapter 75.

As previously explained, Chapter 75 entitles “an

employee against whom an action [including removal]

is proposed” to notice, reasonable time to answer and

present supporting evidence, representation, and a

reasoned written decision. 5 U.S.C. § 7513(b); see id.

App. 13

§§ 7511 (defining which employees are covered under

the subchapter), 7512 (outlining the actions covered

under the subchapter). If action is taken, the employee

“is entitled to appeal” to the MSPB where the employee

is entitled to a hearing and legal representation. Id.

§ 7513(d); see id. § 7701(a). And once the MSPB issues

its decision, the employee may appeal this final order

to the Federal Circuit. Id. § 7703(b)(1)(A).

The CSRA therefore covers pre-enforcement

removal challenges like Mr. Payne’s because while he

has not yet been terminated, Chapter 75 provides

meaningful review for employees “against whom an

action is proposed.” Id. § 7513(b) (emphasis added).

And although the CSRA does not define “proposed,” we

agree with the Fourth Circuit that the nature of these

claims makes such a definition unnecessary to deciding

this jurisdictional issue. See Rydie, 2022 WL1153249,

at *7. Mr. Payne argues that the government

“threaten[s]” disciplinary action, and under the alleged

facts, the government could not have threatened the

action without having proposed it. Appellant Br. at 30

n.3. The Complaint reinforces such a finding because

Mr. Payne alleges that “[D]efendants have promised

[Mr. Payne] will lose his job,” the defendants are

implementing the vaccine mandate, and given that the

vaccine mandate has been “declared a condition of

federal employment, Mr. Payne . . . will be disciplined,

suspended without pay, and removed from Federal

service for failing to follow a direct order.” Compl. ¶¶ 2,

58 (cleaned up).

The second way Mr. Payne may obtain judicial

review is by challenging a “prohibited personnel

App. 14

practice” under Chapter 23. 5 U.S.C. § 2302. An

example of “personnel action,” as defined by statute,

includes the “significant change in duties,

responsibilities, or working conditions[.]” Id.

§ 2302(a)(2)(A)(xii). Chapter 23 prohibits supervisory

employees from participating in any act constituting a

“prohibited personnel practice.” Id. § 2302(a), (b). One

of the enumerated prohibited practices includes

“tak[ing] or fail[ing] to take any other personnel action

if the taking of or failure to take such action violates

any law, rule, or regulation implementing, or directly

concerning, the merit system principles contained in

section 2301[.]” Id. § 2302(b)(12). And one such merit

system principle involves the failure to accord “proper

regard for [the covered employee’s] privacy and

constitutional rights.” Id. § 2301(b)(2).

While Mr. Payne does not dispute that he is a

covered employee, he maintains that his claims do not

qualify as prohibited personnel practices because he

challenges the mandate as opposed to challenging the

masking or testing requirements. Furthermore, Mr.

Payne’s counsel also represented at oral argument that

the mask requirement has since been withdrawn. Oral

Arg. Tr. 8:23–25. But even without the mask

requirement—or any of the other COVID-19 related

requirements initially alleged and relied upon by the

District Court—Mr. Payne still has the option of filing

a complaint before the OSC, arguing that the vaccine

mandate, and the disciplinary action he faces for his

continued noncompliance, constitute personnel

practices taken without “proper regard for [his] . . .

constitutional rights.” Id. § 2301(b)(2); see id.

§ 2302(b)(12).

App. 15

Thus, Mr. Payne may access meaningful review by

following the procedures described under either

Chapter 75, covering proposed removal, or Chapter 23,

covering prohibited personnel practices. In so finding,

we note that to the extent that Mr. Payne finds support

in our pre-1994 precedent identifying certain

exceptions to a statutory scheme’s preclusive effect, see

Appellant Br. 23 (citing Nat’l Fed’n of Fed. Emps. v.

Weinberger, 818 F.2d 935, 938–40 (D.C. Cir. 1987);

Harmon v. Thornburgh, 878 F.2d 484, 485–87 (D.C.

Cir. 1989); Spagnola v. Mathis, 859 F.2d 223, 229–30

(D.C. Cir. 1988) (en banc) (per curiam)), such

exceptions cannot survive the Supreme Court’s

subsequent decisions in Thunder Basin and

Elgin—clarifying that a statutory scheme may

exclusively preclude jurisdiction when Congress’s

intent to do so is “fairly discernible.” Thunder Basin,

510 U.S. at 207; Elgin, 567 U.S. at 12; see also See Am.

Fed’n of Gov’t Emps., AFL-CIO v. Trump, 929 F.3d 748,

758 (D.C. Cir. 2019) (“We once suggested in a footnote

[citing Weinberger, 818 F.2d at 940 n.7] that the

Statute would not allow us to review constitutional

claims that the FLRA could not consider,” but such a

“suggestion cannot survive the Supreme Court’s

decision in Thunder Basin”).

We next consider whether the claims are “wholly

collateral to a statute’s review provisions.” Thunder

Basin, 510 U.S. at 212 (internal quotation marks and

citation omitted). Claims are not wholly collateral if

they serve as the “vehicle by which [the plaintiff]

seek[s] to reverse” the adverse employment action.

App. 16

Jarkesy, 803 F.3d at 23 (citing Elgin, 567 U.S. at 22).

As we have emphasized, “an exception to an otherwise

exclusive scheme for constitutional challenges in

general, or facial attacks on a statute in particular, or

some other as-yet-undefined category of constitutional

claims, would encourage respondents in administrative

enforcement proceedings to frame their challenges to

the [agency’s] actions in those terms and thereby earn

access to another forum” for review. Jarkesy, 803 F.3d

at 25. Such gamesmanship would be inconsistent with

Congress’s intent to set the boundaries of an exclusive

avenue for review.

By arguing that his claims are wholly collateral, Mr.

Payne seeks an exception to the CSRA’s exclusivity.

Indeed, he attempts to circumvent the CSRA’s

procedure and proceed in district court because his

challenge pertains to the Constitution rather than

CSRA-covered personnel action. But while Mr. Payne

certainly alleges that the vaccine mandate is

unconstitutional, he does so—at least in part—because

of the mandate’s “promis[e] to deprive [him] of public

employment unless” he complies. Compl. ¶ 86.

Adopting Mr. Payne’s theory would thus enable scores

of litigants challenging an employment requirement to

skip over the CSRA’s process by characterizing the

requirement as unconstitutional. “Such suits would

reintroduce the very potential for inconsistent

decisionmaking and duplicative judicial review that the

CSRA was designed to avoid.” Elgin, 567 U.S. at 14.

All attempts to characterize his argument as

anything but a challenge to adverse employment action

fail for jurisdictional purposes, because Mr. Payne

App. 17

himself admits that his standing to challenge the

vaccine mandate is rooted in the looming disciplinary

action he now faces as a result of his continued

noncompliance. In other words, Mr. Payne challenges

the vaccine mandate to maintain his employment while

continuing to defy the mandate that he views as

unlawful. And while his constitutional arguments are

relevant to the merits, they do not change the fact that

one of Mr. Payne’s interests in this suit is to avoid the

impending adverse employment action. Mr. Payne’s

claims are not wholly collateral because challenges to

adverse employment actions are the type of claims that

the MSPB regularly adjudicates.

Like the first two factors, the third factor—agency

expertise—is interpreted broadly. Courts may find this

factor satisfied by considering “the many threshold

questions that may accompany a constitutional claim

and to which the MSPB can apply its expertise.” Elgin,

567 U.S. at 22. Mr. Payne argues that his claims fall

outside the agency’s expertise because, again, he

frames his claims as constitutional challenges

unrelated to the CSRA’s procedures. We reject this

argument because the MSPB’s expertise remains

applicable to the various threshold questions attached

to the claims and any preliminary issues particular to

the employment context. See id. at 22–23 (noting

preliminary issues such as those involving a statute

that MSPB often interprets; “statutory or

constitutional claims that the MSPB routinely

considers[;]” or “a constitutional challenge to a federal

statute”). Also, it remains possible that the MSPB finds

App. 18

the promised disciplinary action violates the statutory

requirement that major adverse employment action

“promote the efficiency of the service.” 5 U.S.C.

§§ 7503(a), 7513(a). If so, the MSPB could issue a

ruling in Mr. Payne’s favor, possibly rendering his

constitutional claims moot.

Based on the foregoing, all three factors weigh in

the government’s favor and Mr. Payne’s claims fall

within the CSRA’s framework. We thus conclude that

Congress precluded the District Court from reviewing

Mr. Payne’s claims.

III.

There is but one permissible conclusion given our

well-established precedent guiding jurisdictional

preclusion issues of this nature. By reframing the issue

as “whether the CSRA removes district court

jurisdiction” as opposed to “whether it permits it,” Mr.

Payne attempts to introduce nuance where none exists.

Appellant Reply Br. at 4 (emphases in original). The

law is clear that where the CSRA provides judicial

review, it does so exclusively. Thus, in finding that Mr.

Payne may proceed through the CSRA’s scheme, we

necessarily find that should Mr. Payne choose to

continue challenging the vaccine mandate, he must do

so through the CSRA’s scheme. Such is the nature of an

“exclusive avenue to judicial review.” Elgin, 567 U.S.

at 5.

***

For the foregoing reasons, we affirm the District

Court’s judgment.

So ordered.

App. 19

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-5154

[Filed March 21, 2023]

__________________________________________

JASON PAYNE,

)

APPELLANT

)

JOSEPH R. BIDEN, JR., PRESIDENT, ET AL.,

)

APPELLEES

)

_________________________________________ )

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-03077)

_____________________________

September Term, 2022

FILED ON: MARCH 21, 2023

______________________________

Before: WILKINS and WALKER, Circuit Judges, and

ROGERS, Senior Circuit Judge

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

App. 20

District of Columbia and was argued by counsel. On

consideration thereof, it is

ORDERED and ADJUDGED that the judgment of

the District Court appealed from in this cause be

affirmed, in accordance with the opinion of the court

filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

Date: March 21, 2023

Opinion for the court filed by Circuit Judge Wilkins.

App. 21

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-3077 (JEB)

[Filed May 12, 2022]

__________________________________________

JASON PAYNE,

)

Plaintiff,

)

JOSEPH R. BIDEN, JR., et al.,

)

Defendants.

)

_________________________________________ )

MEMORANDUM OPINION

A jab or a job? Plaintiff Jason Payne is a federal

civilian employee who claims that the Executive Order

requiring COVID-19 vaccination for covered federal

employees unlawfully puts him to this choice. Last fall,

President Joseph Biden issued Executive Order 14,043,

which mandates vaccinations for executive-branch

employees, subject to a medical or religious exception.

Payne, who works for the Navy, refuses to be

vaccinated and has not applied for an exception. He

instead filed this lawsuit against a number of federal

agencies and officials, alleging that the Executive

Order and the associated agency actions are

unconstitutional for several reasons. After Plaintiff

App. 22

moved for summary judgment, the Government filed a

Motion to Dismiss. The Court will grant the

Government’s Motion because the Civil Service Reform

Act deprives the Court of subject-matter jurisdiction

over this workplace dispute involving a covered federal

employee.

Background

A. Legal Background

In September 2021, President Biden issued

Executive Order 14,043, which announced a COVID-19

vaccination requirement for many federal employees.

See Exec. Order No. 14,043, 86 Fed. Reg. 50,989,

50,989 (Sept. 9, 2021). The Order, which was designed

to “ensur[e] the health and safety of the Federal

workforce and the efficiency of the civil service,” directs

the Safer Federal Workforce Task Force to issue

guidance on implementation of the vaccination

requirement. Id. at 50,989–90; see Exec. Order

No. 13,991, 86 Fed. Reg. 7045, 7046 (Jan. 25, 2021)

(establishing Task Force).

The Task Force guidance recognizes, consistent with

the Executive Order, that federal employees may be

entitled to exceptions from the vaccination requirement

based on disabilities, including medical conditions, or

religious objections. See Safer Federal Workforce,

Vaccinations, Limited Exceptions to Vaccination

Requirement (last visited May 12, 2022),

https://bit.ly/37Ectq2. The guidance further states that

federal employees who have not requested an exception

should be fully vaccinated by November 22, 2021. See

Safer Federal Workforce, Vaccinations, Vaccination

App. 23

Requirement for Federal Employees (last visited

May 12, 2022), https://bit.ly/37Ectq2. If an employee

refuses to get vaccinated and either has not requested

an exception or has had a request denied, then the

guidance from the Task Force and the Office of

Personnel Management recommends a procedure of

progressive discipline, ranging from education and

counseling to suspension and termination if the

noncompliance persists. See Safer Federal Workforce,

Vaccinations, Enforcement of Vaccination Requirement

for Employees (last visited May 12, 2022),

https://bit.ly/37Ectq2.

B. Factual and Procedural History

Taking the facts alleged in Payne’s Complaint as

true, he is a federal civilian employee who works as an

engineer for the Office of Naval Research, a component

of the Department of the Navy. See ECF No. 1

(Compl.), ¶ 6. He has been a member of the civil service

for over two decades. Id., ¶ 2. Plaintiff alleges that, at

some unspecified time in the past, he contracted

COVID-19 and recovered. Id., ¶ 7. In his view, he

thereby “acquir[ed] natural immunity against the

disease.” Id. Payne now “refuses to accept the COVID19 vaccination mandated by . . . [D]efendants”

pursuant to the Executive Order. Id., ¶ 76. He has not

alleged that he applied for or intends to apply for a

medical or religious exception, nor that he so qualifies.

Id.

On October 1, 2021, in keeping with the guidance

described above, OPM issued a memorandum directing

agencies to require non-excepted employees to be fully

vaccinated by November 22, 2021. See ECF No. 1-5

App. 24

(Guidance on Enforcement of Coronavirus Disease 2019

Vaccination Requirement for Federal Employees) at 1.

The memorandum also advised that covered employees’

“failure to comply will result in disciplinary action up

to and including removal or termination.” Id. That

same day, the Defense Department issued a

memorandum requiring civilian employees to be “fully

vaccinated” by November 22, 2021. See ECF No. 1-6

(Memorandum for Senior Pentagon Leadership) at 1. A

month later, the Navy issued a memorandum clarifying

that “[e]vidence of COVID-19 anti-bodies as a result of

previous infection(s) does not satisfy this vaccination

requirement; these individuals must also be fully

vaccinated.” ECF No. 1-9 (COVID-19 Mandatory

Vaccination Plan for Civilian Employees) at 3. The

memorandum reiterated that all civilian employees

must be fully vaccinated by November 22, and that

they may be disciplined for failure to do so unless the

employee has applied for or received an exception. Id.

at 10–11. By that date, Payne had neither submitted

the required form to his supervisors indicating his

vaccination status nor applied for an exception, and he

had “advised his direct supervisors that he declines

vaccination.” Compl., ¶¶ 53–54.

On November 22, 2021 — the day that Plaintiff was

required to be fully vaccinated — he filed this lawsuit

against Defendants President Biden and a number of

other federal officials and agencies. The Complaint

alleges that he has already suffered a number of

consequences in his job “for refusing vaccination,” such

as “being forced to wear a mask when those who are

vaccinated did not have to wear one,” having his official

travel subjected to additional scrutiny, being subject to

App. 25

additional COVID-19 testing requirements, and more.

Id., ¶ 56. He also alleges that “[D]efendants have

promised he will lose his job” for failing to comply with

the vaccination requirement. Id., ¶ 2.

Payne’s three-count Complaint contends that

Executive Order 14,043 and the associated Task Force

and agency actions violate the separation of powers and

his Fifth Amendment right to privacy, as well as

impose an unconstitutional condition on his

employment. Id., ¶¶ 60–86. He seeks declaratory and

injunctive relief. Id. at 26.

Just two days after filing this lawsuit, Plaintiff filed

a Motion for Summary Judgment on each of his three

claims. See ECF No. 4 (Pl. MSJ). After Defendants

indicated that they planned to file a Motion to Dismiss,

the Court ordered them to file a combined Motion to

Dismiss and Opposition to Motion for Summary

Judgment. See Minute Order of Jan. 3, 2022. The

briefing is now complete on these dueling Motions.

II.

Legal Standard

As the Court need address only Defendants’ Motion,

it sets out that standard alone. That Motion discusses

dismissal under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). When a defendant

seeks dismissal under Rule 12(b)(1), the plaintiff must

demonstrate that the court has subject-matter

jurisdiction to hear his claims. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992); US Ecology, Inc. v.

U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).

“Because subject-matter jurisdiction focuses on the

court’s power to hear the plaintiff’s claim,” the court

App. 26

has “an affirmative obligation to ensure that it is acting

within the scope of its jurisdictional authority.” Grand

Lodge of Fraternal Order of Police v. Ashcroft, 185

F. Supp. 2d 9, 13 (D.D.C. 2001). “Absent subject matter

jurisdiction over a case, the court must dismiss it.” Bell

v. U.S. Dep’t of Health & Human Servs., 67 F. Supp. 3d

320, 322 (D.D.C. 2014).

In policing its jurisdictional borders, the court must

scrutinize the complaint, granting the plaintiff the

benefit of all reasonable inferences that can be derived

from the alleged facts. See Jerome Stevens Pharms.,

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The

court need not rely “on the complaint standing alone,”

however, but may also look to undisputed facts in the

record or resolve disputed ones. See Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Nor

need the court accept inferences drawn by the plaintiff

if those inferences are unsupported by facts alleged in

the complaint or merely amount to legal conclusions.

See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002).

Under Federal Rule of Civil Procedure 12(b)(6),

meanwhile, a court must dismiss a suit when the

complaint “fail[s] to state a claim upon which relief can

be granted.” In evaluating a motion to dismiss, the

Court must “treat the complaint’s factual allegations as

true and must grant plaintiff the benefit of all

inferences that can be derived from the facts alleged.”

Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113

(D.C. Cir. 2000) (citation and internal quotation marks

omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A court need not accept as true, however, “a

App. 27

legal conclusion couched as a factual allegation,” nor an

inference unsupported by the facts set forth in the

complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.

Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265,

286 (1986)). Although “detailed factual allegations” are

not necessary to withstand a Rule 12(b)(6) motion, Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a

complaint must contain sufficient factual matter, [if]

accepted as true, to state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. at 678 (internal

quotation omitted). A plaintiff may survive a

Rule 12(b)(6) motion even if “recovery is very remote

and unlikely,” but the facts alleged in the complaint

“must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555–56

(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

III.

Analysis

In his Complaint and Motion for Summary

Judgment, Payne argues that Executive Order 14,043

and the agency actions implementing it are

unconstitutional for several reasons. The Government,

for its part, contends that because the Court lacks

subject-matter jurisdiction over Plaintiff’s claims, it

should not reach the merits. More specifically,

Defendants’ lead position is that the CSRA divests the

Court of jurisdiction. See ECF No. 16-1 (MTD) at 12.

Because subject-matter jurisdiction must “be

considered when fairly in doubt,” Iqbal, 556 U.S. at

671, the Court begins by examining that issue.

Agreeing with both the Fourth and Fifth Circuits — the

only two Courts of Appeals to weigh in on the issue —

the Court concludes that it does indeed lack subject-

App. 28

matter jurisdiction because the CSRA precludes

challenges of this kind to the Executive Order. See

Rydie v. Biden, No. 21-2359, 2022 WL 1153249, at *1

(4th Cir. Apr. 19, 2022); Feds for Med. Freedom v.

Biden, 30 F.4th 503, 511 (5th Cir. 2022). In the

analysis that follows, the Court first examines the

relevant background of the CSRA and then explains

why the statute forecloses subject-matter jurisdiction

here. Given that result, the Court need not take up

Plaintiff’s Motion for Summary Judgment.

A. Background on CSRA

“[T]he CSRA ‘comprehensively overhauled the civil

service system.’” United States v. Fausto, 484 U.S. 439,

443 (1988) (quoting Lindahl v. OPM, 470 U.S. 768, 773

(1985)). Congress designed the statute “to replace the

haphazard arrangements for administrative and

judicial review of personnel action, part of the outdated

patchwork of statutes and rules built up over almost a

century that was the civil service system.” Id. at 444

(internal quotation marks and citations omitted). The

CSRA thus “established a comprehensive system for

reviewing personnel action taken against federal

employees.” Id. at 455. Indeed, it created “an elaborate

new framework for evaluating adverse personnel

actions against federal employees,” which sets forth “in

great detail the protections and remedies applicable to

such action[s], including the availability of

administrative and judicial review.” Id. at 443 (cleaned

up). Two main sections of the CSRA are particularly

relevant to this case. The Court will introduce those

sections here and then discuss them in more depth in

its analysis of Plaintiff’s claims.

App. 29

First, Chapter 23 governs less severe personnel

practices against executive-branch employees. See 5

U.S.C. § 2301 et seq. Under that section, covered

employees who believe that they have been subjected to

a “prohibited personnel practice” can file an allegation

with the Office of Special Counsel. Id. §§ 1214(a), 2302.

If the OSC finds “reasonable grounds to believe” that a

prohibited personnel practice occurred, the practice

must be reported to the Merit Systems Protection

Board, the employing agency, and OPM. Id.

§ 1214(b)(2)(B). If the issue is not remedied by the

relevant agency, the OSC may petition to the MSPB,

which can order corrective action, including attorney

fees, back pay, and other compensatory damages. Id.

§ 1214(b), (g). Judicial review of final orders of the

MSPB is available in the U.S. Court of Appeals for the

Federal Circuit. Id. §§ 1214(c), 7703(b)(1)(A).

The other section of the CSRA of primary relevance

here, Chapter 75, governs more severe personnel

actions against covered federal employees. Id. § 7501 et

seq. This section addresses the applicable procedures

when an employee challenges a suspension, reduction

in pay or grade, or removal. Id. § 7512(1)–(5).

Employees challenging a personnel action under this

section are afforded a number of procedural rights,

including notice, representation by counsel, the

opportunity to respond, and a reasoned decision from

the agency. Id. §§ 7503(b), 7513(b). Under this Chapter,

as under Chapter 23, appeal is generally available to

the MSPB, and then from the MSPB to the Federal

Circuit. Id. §§ 7503(c), 7513(d), 7703(b)(1)(A).

App. 30

The critical point is that the CSRA, while providing

for review in the Federal Circuit under many

circumstances, does not allow review of such personnel

actions in federal district court.

B. Application

Against that backdrop, the Court turns to the core

issue: does the CSRA divest the Court of subject-matter

jurisdiction over this lawsuit? “Within constitutional

bounds, Congress decides what cases the federal courts

have jurisdiction to consider.” Bowles v. Russell, 551

U.S. 205, 212 (2007). While federal courts ordinarily

have jurisdiction over “all civil actions arising under

the Constitution, laws, or treaties of the United

States,” 28 U.S.C. § 1331, when “a special statutory

review scheme exists,” “it is ordinarily supposed that

Congress intended that procedure to be the exclusive

means of obtaining judicial review in those cases to

which it applies.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C.

Cir. 2015) (internal quotation marks and citation

omitted). Indeed, the Supreme Court has supplied “a

framework for determining when a statutory scheme of

administrative and judicial review forecloses parallel

district-court jurisdiction.” Id. at 12 (citing Thunder

Basin Coal Co. v. Reich, 510 U.S. 200 (1994)). “Under

Thunder Basin’s framework, courts determine that

Congress intended that a litigant proceed exclusively

through a statutory scheme of administrative and

judicial review when (i) such intent is ‘fairly discernible

in the statutory scheme,’ and (ii) the litigant’s claims

are ‘of the type Congress intended to be reviewed

within [the] statutory structure.’” Id. at 15 (quoting

Thunder Basin, 510 U.S. at 207).

App. 31

The Court addresses these two steps in turn,

concluding that both “support the conclusion that

Congress intended the statutory scheme to be

exclusive.” Id. at 16. As a result, Plaintiff must follow

the CSRA’s remedial scheme and cannot proceed here.

1. Step One

As the Fourth Circuit recognized in concluding that

the district court lacked jurisdiction over an essentially

identical challenge to Executive Order 14,403, “The

Supreme Court has spoken on step one” of this inquiry,

holding that it is fairly discernible that the CSRA is

intended to foreclose direct judicial review in at least

some circumstances. Rydie, 2022 WL 1153249, at *4.

More specifically, in Elgin v. Department of the

Treasury, 567 U.S. 1 (2012), the Court addressed

“whether the CSRA provides the exclusive avenue to

judicial review when a qualifying employee challenges

an adverse employment action by arguing that a

federal statute is unconstitutional.” Id. at 5. Relying on

Thunder Basin, the Court answered in the affirmative,

concluding that it was “fairly discernible that the

CSRA review scheme was intended to preclude district

court jurisdiction over petitioners’ claims.” Id. at 23.

Looking first at the text and structure of the CSRA, the

Court explained that the “painstaking detail with

which the CSRA sets out the method for covered

employees to obtain review of adverse employment

actions” established that “Congress intended to deny

such employees an additional avenue of review in

district court.” Id. at 11–12. The Court went on to state

that “[t]he purpose of the CSRA also supports our

conclusion that the statutory review scheme is

App. 32

exclusive, even for employees who bring constitutional

challenges to federal statutes.” Id. at 13. Here, Plaintiff

does not contend, nor does the Court see any basis for

believing, that the rule stated in Thunder Basin should

be different just because a challenge is to an Executive

Order, as opposed to a statute.

Elgin thus controls the first part of the

jurisdictional inquiry. Rydie, 2022 WL 1153249, at *4

(“Thus, Elgin resolves step one.”); see also Jarkesy, 803

F.3d at 16.

2. Step Two

The next question, therefore, is whether the

circumstances here qualify. Or, to use the language

from Thunder Basin, are Plaintiff’s claims “of the type

Congress intended to be reviewed within this statutory

structure”? See 510 U.S. at 212. At this step, “the

Supreme Court has provided three factors to consider:

(i) whether a finding that jurisdiction is precluded

would ‘foreclose all meaningful judicial review,’

(ii) whether the suit is ‘wholly collateral to a statute’s

review provisions,’ and (iii) whether the claims are

‘outside the agency’s expertise.’” Miriyeva v. U.S.

Citizenship & Immigr. Servs., 9 F.4th 935, 940 (D.C.

Cir. 2021) (quoting Thunder Basin, 510 U.S. at

212–13). The D.C. Circuit has clarified that those

considerations do not “form three distinct inputs into a

strict mathematical formula. Rather, the

considerations are general guideposts useful for

channeling the inquiry into whether the particular

claims at issue fall outside an overarching

congressional design.” Jarkesy, 803 F.3d at 17. While

the issue is certainly more involved than the first part

App. 33

of the Thunder Basin analysis, the Court similarly

concludes that the second part points toward a lack of

subject-matter jurisdiction over this suit.

a. Availability of Meaningful Review

Payne initially contends that “preclusion [of districtcourt jurisdiction] could foreclose all meaningful

judicial review.” ECF No. 20 (Pl. Opp.) at 4. The Court

disagrees. Plaintiff’s challenge can reasonably be

characterized in one of two ways, and under either

classification, a finding that this Court lacks

jurisdiction would not foreclose all meaningful review.

First, to the extent that his challenge is to a change

in his working conditions, the CSRA plainly provides

for meaningful judicial review. As referenced, 5 U.S.C.

§ 2302 defines a “prohibited personnel practice” as any

one of fourteen acts that supervisory employees may

not take against an employee in a “covered position.”

Id. § 2302(a), (b). A “covered position” includes “any

position in the competitive service,” id. § 2302(a)(2)(B),

and the competitive service includes “all civil service

positions in the executive branch,” subject to certain

exceptions not relevant here. Id. § 2102(a)(1). Payne

works in the executive branch and is thus in a covered

position—a conclusion that he does not dispute. See

Compl., ¶ 6; Pl. Opp. at 4–13. Nor does he dispute that

the vaccination requirement has been dictated by a

supervisory employee, who has the “authority to take,

direct others to take, recommend, or approve any

personnel action.” 5 U.S.C. § 2302(b). Of particular

relevance here, one such enumerated “personnel

action” is a “significant change in duties,

App. 34

responsibilities, or

§ 2302(a)(2)(A)(xii).

working

conditions.”

Id.

There is good reason to think that Plaintiff is

bringing a challenge to his working conditions. The

Supreme Court has explained, in interpreting Title VII

of the CSRA, that the term “working conditions” refers

“to the ‘circumstances’ or ‘state of affairs’ attendant to

one’s performance of a job.” Fort Stewart Sch. v. FLRA,

495 U.S. 641, 645 (1990). The Fifth Circuit recently

relied on this language from Fort Stewart to conclude

that “Executive Order 14043 qualifies as a significant

change to the circumstances attending the job

performance of federal employees.” Feds for Med.

Freedom, 30 F.4th at 510 n.4. Here, Payne’s own

allegations indicate that he is challenging a covered

change in his working conditions. In addition to

alleging that he “will be disciplined, suspended without

pay, and removed from Federal service” because of the

Executive Order, see Compl., ¶ 58, Plaintiff further

alleges:

[F]or refusing vaccination he has been

improperly stigmatized by being forced to wear

a mask when those who are vaccinated did not

have to wear one; his official travel is subject to

extra scrutiny and additional levels of approval;

he is unable to have unrestricted access to his

workplace and must produce a negative COVID19 test for entry when vaccinated workers do

not; he was forced to sign an acknowledgement

that his failure to be fully vaccinated against

COVID-19 by 22 November 2021, or to provide

proof of vaccination, “negatively affects the

App. 35

agency’s ability to carry out its mission”; and he

must personally bear the cost of COVID-19

testing.

Id., ¶ 56. Consistent with the Supreme Court and the

Fifth Circuit’s understanding of the term in the CSRA,

Payne can thus be understood to challenge a

“significant change in duties, responsibilities, or

working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).

As a result, the CSRA empowers him to attack such

a personnel action by filing an allegation with the OSC.

Id. § 1214(a)(3). In such a proceeding, the OSC must

provide employees “fair and equitable treatment . . .

with proper regard for their privacy and constitutional

rights.” Id. § 2301(b)(2). “The CSRA thus empowers the

[OSC] to hear constitutional claims.” Rydie, 2022 WL

1153249, at *5; accord Ferry v. Hayden, 954 F.2d 658,

661 (11th Cir. 1992). Then, as outlined, an employee’s

claims may be presented to the MSPB and eventually

to the Federal Circuit. As the Supreme Court has

recognized, “[T]he CSRA does not foreclose all judicial

review of . . . constitutional claims” when it “directs

that judicial review shall occur in the Federal Circuit.”

Elgin, 567 U.S. at 10. On the contrary, “the Federal

Circuit is fully capable of providing meaningful review

of [such] claims.” Id. In short, insofar as Payne is

challenging a change in working conditions, he could

avail himself of meaningful judicial review under the

CSRA.

Before moving on from Chapter 23 of the Act, it is

worth noting that another provision of § 2302 may well

provide a separate avenue by which Plaintiff could

obtain meaningful judicial review. More specifically, an

App. 36

additional enumerated prohibited practice under that

section is “tak[ing] or fail[ing] to take any [] personnel

action if the taking or failure to take such action

violates any law, rule, or regulation.” Id. § 2302(b)(12).

As a result, to the extent that the Executive Order

requires supervisory employees to take action that

violates the Constitution, meaningful judicial review is

also available under the procedures previously

described. See Rydie, 2022 WL 1153249, at *5 (“So even

if Executive Order 14,043 required covered employees

to engage in a prohibited practice, § 2302(b)(12)

provides for meaningful review.”); cf. Weaver v. U.S.

Info. Agency, 87 F.3d 1429, 1432 (D.C. Cir. 1996)

(interpreting § 2302 to conclude that “it is a ‘prohibited

personnel practice’ to take a personnel action that

unconstitutionally burdens an employee’s speech”)

(citations omitted).

The second main way Plaintiff’s suit could be

characterized is as a challenge to a termination

decision. Here, too, meaningful review is available, this

time under Chapter 75 of the CSRA. As discussed, that

section — which applies to Payne for the same reasons

that Chapter 23 does, see 5 U.S.C. § 7511(a)(1)(A) —

governs the procedures applicable to removals. Id.

§§ 7512, 7513. Under Chapter 75, “[a]n employee

against whom an action [including removal] is proposed

is entitled to” notice, reasonable time to present

evidence, legal representation, and a written reasoned

decision. Id. § 7513(b). Notice must be provided in

writing at least thirty days before the agency acts and

must describe the charges against the employee. Id.

§ 7513(b)(1); see Brook v. Corrado, 999 F.2d 523, 526

(Fed. Cir. 1993). Once the adverse personnel action is

App. 37

taken, moreover, the employee “is entitled to appeal” to

the MSPB. Id. § 7513(d). In such an appeal, the

employee has the right to a hearing and an attorney.

Id. § 7701(a). Next, as under Chapter 23, the MSPB’s

final orders may be appealed to the Federal Circuit. Id.

§ 7703(b)(1)(A).

There can thus be little doubt that, for the same

reasons explained in reference to Chapter 23,

Chapter 75 of the CSRA provides for meaningful

judicial review when an employee is challenging a

removal that has already occurred. See Rydie, 2022 WL

1153249, at *6 (“Like that for prohibited personnel

practices, the process for challenging termination

under § 7513 poses only the risks associated with

traditional litigation.”). In fact, Payne admits, as he

must, that the MSPB “may handle a constitutional

challenge to an employee-specific termination.” Pl.

Opp. at 4. He contends, however, that the CSRA

nonetheless does not provide him an avenue for

meaningful judicial review because there has been no

“predicate personnel action” in this case, and “neither

the CSRA nor the MSPB are designed to deal with preenforcement constitutional challenges.” Id. at 4–5. He

is mistaken.

As the Fourth Circuit concluded, Chapter 75

“provides an adequate vehicle to mount a preenforcement challenge to termination.” Rydie, 2022 WL

1153249, at *6. That is because the statute provides the

rights and processes afforded to “[a]n employee against

whom an action is proposed.” 5 U.S.C. § 7513(b)

(emphasis added). The Court concurs with that

Circuit’s conclusion that “[t]hese processes allow for

App. 38

meaningful review.” Rydie, 2022 WL 1153249, at *6. In

addition, while § 7513(b) does not define the scope of a

“proposed” action, Payne never argues that no such

action looms. On the contrary, he alleges that

“[D]efendants have promised he will lose his job,” and

that because the mandate has been “declared a

condition of [federal] employment, Mr. Payne . . . will

be disciplined, suspended without pay, and removed

from Federal service for failing to follow a direct order.”

Compl., ¶¶ 2, 58 (internal quotation marks omitted).

Those allegations suffice to establish that a covered

action has been proposed, and he can thus obtain

meaningful review before a removal transpires.

Plaintiff’s additional attempts to circumvent the

CSRA are unpersuasive. For example, he contends that

“[b]inding precedent holds that pre-enforcement

challenges to government-wide policies do not fall

within the CSRA’s exclusive jurisdiction.” Pl. Opp. at 6.

Here, he relies on several decades-old D.C. Circuit

cases, which reasoned that while “[it] is one thing to

say that when [the CSRA] provides a detailed scheme

of administrative protection for defined employment

rights, less significant employment rights of the same

sort are implicitly excluded,” “[it] is quite different to

suggest . . . that a detailed scheme of administrative

adjudication impliedly precludes preenforcement

judicial review of rules.” Nat’l Treasury Emps. Union

v. Devine, 733 F.2d 114, 117 n.8 (D.C. Cir. 1984); see

also Nat’l Treasury Emps. Union v. Horner, 854 F.2d

490, 497 (D.C. Cir. 1988); Nat’l Fed’n of Fed. Emps. v.

Weinberger, 818 F.2d 935, 940 (D.C. Cir. 1987). These

cases, however, predate both Thunder Basin and Elgin,

which held that a statutory scheme bars review when

App. 39

Congress’s intention to do so is “fairly discernible.” 567

U.S. at 8–10; see 510 U.S. at 207. Indeed, the D.C.

Circuit has reasoned in the FLRA context that a

related suggestion put forth in Weinberger “cannot

survive the Supreme Court’s decision in Thunder

Basin.” Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump,

929 F.3d 748, 758 (D.C. Cir. 2019); see Am. Fed’n of

Gov’t Emps. v. Sec’y of Air Force, 716 F.3d 633, 639

(D.C. Cir. 2013) (indicating in post-Elgin case that

CSRA applies to “systemwide challenge to an agency

policy interpreting a statute just as it does to the

implementation of such a policy in a particular case”)

(internal quotation marks omitted).

In any event, regardless of the precise scope of the

D.C. Circuit’s more recent pronouncements about the

continued validity of Devine and its progeny, it is well

established that “[c]ontrolling precedent may be

‘effectively overruled’ . . . if a later Supreme Court

decision ‘eviscerates’ its reasoning.” Brookens v. Acosta,

297 F. Supp. 3d 40, 47 (D.D.C. 2018), aff’d sub nom.

Brookens v. Dep’t of Lab., No. 18-5129, 2018 WL

5118489 (D.C. Cir. Sept. 19, 2018) (internal quotation

marks and citation omitted). Such is the case here for

the reasons previously discussed. See Rydie, 2022 WL

1153249, at *6 (declining to apply Devine in light of

Thunder Basin and Elgin).

Payne next argues that denying jurisdiction here

would run afoul of the Supreme Court’s pronouncement

that “[w]e normally do not require plaintiffs to bet the

farm . . . by taking the violative action before testing

the validity of the law, and we do not consider this a

meaningful avenue of relief.” Free Enter. Fund v. Pub.

App. 40

Co. Acct. Oversight Bd., 561 U.S. 477, 490–91 (2010)

(internal quotation marks and citations omitted); see

Pl. Opp. at 10–12. The CSRA compels no such thing,

however. First off, Payne’s ability to challenge a change

in his working conditions via the OSC allows him to

raise his constitutional claims before termination is

even proposed. Relatedly, the procedures afforded to a

covered employee facing a proposed termination

similarly insulate him from having to bet the farm, the

ranch, or anything else in order to obtain review. See

Rydie, 2022 WL 1153249, at *6. In short, concluding

that the Court lacks subject-matter jurisdiction here

would not contravene the principle set forth in Free

Enterprise. See Jarkesy, 803 F.3d at 20 (“The oddities

that led the Supreme Court [in Free Enterprise] to

believe that Congress could not possibly have intended

the accounting firm to proceed through the

administrative route are not present in this case.”).

Last, in positing that it would be illogical to have to

raise a pre-enforcement challenge via the CSRA’s

review scheme, Payne gets things exactly backwards.

Under his view, a plaintiff who would indisputably

have to proceed under the CSRA after suffering an

adverse personnel action could circumvent this process

and obtain immediate federal-court review by filing

suit once the action is proposed but before it is

executed. If this were the case, however, the plaintiffs

in Elgin could have avoided the CSRA entirely if they

had just sued while their adverse personnel actions

were proposed or pending. The Court is highly

skeptical that Congress “exhaustively detail[ed] the

system of review before the MSPB and the Federal

Circuit” only to leave such a conspicuous (and

App. 41

unexplained) loophole. See Elgin, 567 U.S. at 11.

Indeed, permitting such suits “would reintroduce the

very potential for inconsistent decisionmaking and

duplicative judicial review that the CSRA was designed

to avoid,” as well as “create the possibility of parallel

litigation regarding the same agency action before the

MSPB and a district court.” Id. at 14.

In sum, this Court agrees with the Fourth and Fifth

Circuits that, under the circumstances of these

challenges, finding that jurisdiction is precluded does

not foreclose all meaningful judicial review. See Rydie,

2022 WL 1153249, at *7; Feds for Med. Freedom, 30

F.4th at 510.

b. Wholly Collateral

The second Thunder Basin factor looks at whether

a challenge is “wholly collateral to a statute’s review

provisions.” 510 U.S. at 212 (internal quotation marks

and citation omitted). This consideration similarly

militates against the Court’s subject-matter

jurisdiction here. Payne contends that his challenge is

wholly collateral to the CSRA’s review provisions

because he is bringing a pre-enforcement “structural”

constitutional challenge. See Pl. Opp. at 4. The Court

believes otherwise.

In Elgin, the Supreme Court concluded that the

plaintiff-employees’ challenges were not wholly

collateral because their “constitutional claims are the

vehicle by which they seek to reverse the removal

decisions, to return to federal employment, and to

receive the compensation they would have earned but

for the adverse employment action.” Elgin, 567 U.S. at

App. 42

22. The Court also found it significant that “[a]

challenge to removal is precisely the type of personnel

action regularly adjudicated by the MSPB and the

Federal Circuit within the CSRA scheme.” Id. Although

Payne is not challenging a termination that has

already occurred, he is in essence “preemptively

challeng[ing] [his] termination” or at least challenging

a change in his working conditions. Rydie, 2022 WL

1153249, at *7. In other words, “this case is ‘the vehicle

by which [he] seek[s] to’ avoid imminent ‘adverse

employment action.’” Feds for Med. Freedom, 30 F.4th

at 511 (quoting Elgin, 567 U.S. at 22). Regardless of

whether Plaintiff labels his challenge “structural” in

nature, at bottom he seeks to avoid being terminated or

otherwise disciplined at work for failing to comply with

the Executive Order. “Far from a suit wholly collateral

to the CSRA scheme, the case before us is a challenge

to CSRA-covered employment action brought by [a]

CSRA-covered employee[] requesting relief that the

CSRA routinely affords.” Elgin, 567 U.S. at 22.

As the Fourth and Fifth Circuits similarly

concluded, this type of challenge is thus not wholly

collateral to the CSRA’s review provisions. See Rydie,

2022 WL 1153249, at *7; Feds for Med. Freedom, 30

F.4th at 510–11.

c. Agency Expertise

The third and final Thunder Basin consideration —

agency expertise — points in the same direction as the

first two. On this score, Payne again relies on Free

Enterprise and contends that his constitutional claims

do not present “the sort of agency fact-bound inquiries”

that implicate agency expertise. See Pl. Opp. at 5

App. 43

(citing Free Enter., 561 U.S. at 491). This argument

fares no better than his other attempts to draw

parallels with Free Enterprise.

Plaintiff is correct that Free Enterprise reasoned

that the “[p]etitioners’ constitutional claims are . . .

outside the Commission’s competence and expertise” in

part because the “questions involved do not require

technical considerations of [agency] policy.” 561 U.S. at

491 (internal quotation marks and citation omitted).

That was not the final word on the topic, however, as

Elgin proves. See 567 U.S. at 22–23. Yet Payne

neglects to grapple with Elgin’s discussion of this

factor, which cuts strongly against his position. Indeed,

as the D.C. Circuit expressly recognized in reconciling

the discussions of agency expertise in Free Enterprise

and Elgin, “Elgin later clarified . . . that an agency’s

relative level of insight into the merits of a

constitutional question is not determinative.” Jarkesy,

803 F.3d at 28.

In Elgin itself, the Supreme Court rejected the

federal-employee plaintiffs’ argument that their

constitutional challenges fell outside of the Board’s

expertise. See 567 U.S. at 22. The Court explained that

the employees’ expertise-based arguments

“overlook[ed] the many threshold questions that may

accompany a constitutional claim and to which the

MSPB can apply its expertise.” Id. For instance,

“preliminary questions unique to the employment

context may obviate the need to address the

constitutional challenge.” Id. at 22–23. The Court

observed, moreover, that the “challenged statute may

be one that the MSPB regularly construes,” or a case

App. 44

may involve “statutory or constitutional claims that the

MSPB routinely considers.” Id. at 23. In sum, “because

the MSPB’s expertise can otherwise be ‘brought to bear’

on employee appeals that challenge the

constitutionality of a statute,” the Court saw “no reason

to conclude that Congress intended to exempt such

claims from exclusive review before the MSPB and the

Federal Circuit.” Id.

The same result obtains here. The relevant agencies

likely have experience and expertise relevant to at

least some of Payne’s challenges. After all, employing

agencies and the MSPB no doubt have experience

adjudicating employee challenges to a range of

personnel actions. As the Fourth Circuit observed in

Rydie, it is also possible that the employing agency

could moot some of Plaintiff’s claims during its review.

Relatedly, that agency could determine that taking

“action against [Plaintiff] wouldn’t ‘promote the

efficiency of the service.’” Rydie, 2022 WL 1153249, at

*8 (quoting 5 U.S.C. § 7513(a)). And if an appeal

reaches the MSPB, it could reach the same conclusion,

in which case it could order corrective action and

obviate the need for federal court intervention. See

Feds for Med. Freedom, 30 F.4th at 511.

In light of Elgin’s clarification about how to assess

whether agency expertise may be brought to bear on a

given case, consequently, this factor does not supply a

reason to conclude that Plaintiff’s claims should

proceed outside of the CSRA’s review scheme. The

Court thus does not have subject-matter jurisdiction

over this suit, which it will dismiss.

App. 45

IV.

Conclusion

For the foregoing reasons, the Court will grant

Defendants’ Motion to Dismiss. A separate Order so

stating will issue this day.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: May 12, 2022

App. 46

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-3077 (JEB)

[Filed May 12, 2022]

__________________________________________

JASON PAYNE,

)

Plaintiff,

)

JOSEPH R. BIDEN, JR., et al.,

)

Defendants.

)

_________________________________________ )

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, the Court ORDERS that:

1. Defendants’ Motion to Dismiss is GRANTED;

2. Plaintiff’s Motion for Summary Judgment is

DENIED AS MOOT; and

3. The case is

PREJUDICE.

DISMISSED

WITHOUT

App. 47

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: May 12, 2022

App. 48

APPENDIX E

5 U.S.C. § 1214: Investigation of prohibited

personnel practices; corrective action

Text contains those laws in effect on July 5, 2022

§1214. Investigation of prohibited personnel

practices; corrective action

(a)(1)(A) The Special Counsel shall receive any

allegation of a prohibited personnel practice and shall

investigate the allegation to the extent necessary to

determine whether there are reasonable grounds to

believe that a prohibited personnel practice has

occurred, exists, or is to be taken.

(B) Within 15 days after the date of receiving an

allegation of a prohibited personnel practice under

paragraph (1),the Special Counsel shall provide written

notice to the person who made the allegation that(i) the allegation has been received by the

Special Counsel; and

(ii) shall include the name of a person at the

Office of Special Counsel who shall serve as a contact

with the person making the allegation.

paragraph (2), the Special Counsel shall(i) within 90 days after notice is provided under

subparagraph (B), notify the person who made the

allegation of the status of the investigation and any

action taken by the Office of the Special Counsel since

the filing of the allegation;

App. 49

(ii) notify such person of the status of the

investigation and any action taken by the Office of the

Special Counsel since the last notice, at least every

60 days after notice is given under clause (i); and

(iii) notify such person of the status of the

investigation and any action taken by the Special

Counsel at such time as determined appropriate by the

Special Counsel.

(D) No later than 10 days before the Special Counsel

terminates any investigation of a prohibited personnel

practice, the Special Counsel shall provide a written

status report to the person who made the allegation of

the proposed findings of fact and legal conclusions. The

person may submit written comments about the report

to the Special Counsel. The Special Counsel shall not

be required to provide a subsequent written status

report under this subparagraph after the submission of

such written comments.

(2)(A) If the Special Counsel terminates any

investigation under paragraph (1), the Special Counsel

shall prepare and transmit to any person on whose

allegation the investigation was initiated a written

statement notifying the person of(i) the termination of the investigation;

(ii) a summary of relevant facts ascertained by

the Special Counsel, including the facts that support,

and the facts that do not support, the allegations of

such person;

(iii) the reasons for terminating the

investigation; and

(iv) a response to any comments submitted under

paragraph (1)(D).

App. 50

(B) A written statement under subparagraph (A)

may not be admissible as evidence in any judicial or

administrative proceeding, without the consent of the

person who received such statement under

subparagraph (A).

(3) Except in a case in which an employee, former

employee, or applicant for employment has the right to

appeal directly to the Merit Systems Protection Board

under any law, rule, or regulation, any such employee,

former employee, or applicant shall seek corrective

action from the Special Counsel before seeking

corrective action from the Board. An employee, former

employee, or applicant for employment may seek

corrective action from the Board under section 1221, if

such employee, former employee, or applicant seeks

corrective action for a prohibited personnel practice

described in section 2302(b)(8) or section

2302(b)(9)(A)(i), (B), (C), or (D) from the Special

Counsel and(A)(i) the Special Counsel notifies such employee,

former employee, or applicant that an investigation

concerning such employee, former employee, or

applicant has been terminated; and

(ii) no more than 60 days have elapsed since

notification was provided to such employee, former

employee, or applicant for employment that such

investigation was terminated; or

(B) 120 days after seeking corrective action from

the Special Counsel, such employee, former employee,

or applicant has not been notified by the Special

Counsel that the Special Counsel shall seek corrective

action on behalf of such employee, former employee, or

applicant.

App. 51

(4) If an employee, former employee, or applicant

seeks a corrective action from the Board under

section 1221, pursuant to the provisions of paragraph

(3)(B), the Special Counsel may continue to seek

corrective action personal to such employee, former

employee, or applicant only with the consent of such

employee, former employee, or applicant.

(5) In addition to any authority granted under

paragraph (1), the Special Counsel may, in the absence

of an allegation, conduct an investigation for the

purpose of determining whether there are reasonable

grounds to believe that a prohibited personnel practice

(or a pattern of prohibited personnel practices) has

occurred, exists, or is to be taken.

(6)(A) Notwithstanding any other provision of this

section, not later than 30 days after the date on which

the Special Counsel receives an allegation of a

prohibited personnel practice under paragraph (1), the

Special Counsel may terminate an investigation of the

allegation without further inquiry if the Special

Counsel determines that(i) the same allegation, based on the same set of

facts and circumstances, had previously been(I)(aa) made by the individual; and

(bb) investigated by the Special Counsel; or

(II) filed by the individual with the Merit

Systems Protection Board;

(ii) the Special Counsel does not have

jurisdiction to investigate the allegation; or

(iii) the individual knew or should have known

of the alleged prohibited personnel practice on or before

the date that is 3 years before the date on which the

Special Counsel received the allegation.

App. 52

(B) Not later than 30 days after the date on which

the Special Counsel terminates an investigation under

subparagraph (A), the Special Counsel shall provide a

written notification to the individual who submitted

the allegation of a prohibited personnel practice that

states the basis of the Special Counsel for terminating

the investigation.

(b)(1)(A)(i) The Special Counsel may request any

member of the Merit Systems Protection Board to order

a stay of any personnel action for 45 days if the Special

Counsel determines that there are reasonable grounds

to believe that the personnel action was taken, or is to

be taken, as a result of a prohibited personnel practice.

(ii) Any member of the Board requested by the

Special Counsel to order a stay under clause (i) shall

order such stay unless the member determines that,

under the facts and circumstances involved, such a stay

would not be appropriate.

(iii) Unless denied under clause (ii), any stay

under this subparagraph shall be granted within

3 calendar days (excluding Saturdays, Sundays, and

legal holidays) after the date of the request for the stay

by the Special Counsel.

(B)(i) The Board may extend the period of any

stay granted under subparagraph (A) for any period

which the Board considers appropriate.

(ii) If the Board lacks the number of members

appointed under section 1201 required to constitute a

quorum, any remaining member of the Board may,

upon request by the Special Counsel, extend the period

of any stay granted under subparagraph (A).

the subject of a stay to comment to the Board on any

extension of stay proposed under subparagraph (B).

App. 53

(D) A stay may be terminated by the Board at

any time, except that a stay may not be terminated by

the Board(i) on its own motion or on the motion of an

agency, unless notice and opportunity for oral or

written comments are first provided to the Special

Counsel and the individual on whose behalf the stay

was ordered; or

(ii) on motion of the Special Counsel, unless

notice and opportunity for oral or written comments

are first provided to the individual on whose behalf the

stay was ordered.

(E) If the Board grants a stay under subparagraph

(A), the head of the agency employing the employee

who is the subject of the action shall give priority to a

request for a transfer submitted by the employee.

(2)(A)(i) Except as provided under clause (ii), no

later than 240 days after the date of receiving an

allegation of a prohibited personnel practice under

paragraph (1), the Special Counsel shall make a

determination whether there are reasonable grounds to

believe that a prohibited personnel practice has

occurred, exists, or is to be taken.

(ii) If the Special Counsel is unable to make the

required determination within the 240-day period

specified under clause (i) and the person submitting the

allegation of a prohibited personnel practice agrees to

an extension of time, the determination shall be made

within such additional period of time as shall be agreed

upon between the Special Counsel and the person

submitting the allegation.

(B) If, in connection with any investigation, the

Special Counsel determines that there are reasonable

App. 54

grounds to believe that a prohibited personnel practice

has occurred, exists, or is to be taken which requires

corrective action, the Special Counsel shall report the

determination together with any findings or

recommendations to the Board, the agency involved

and to the Office of Personnel Management, and may

report such determination, findings and

recommendations to the President. The Special

Counsel may include in the report recommendations for

corrective action to be taken.

does not act to correct the prohibited personnel

practice, the Special Counsel may petition the Board

for corrective action.

(D) If the Special Counsel finds, in consultation with

the individual subject to the prohibited personnel

practice, that the agency has acted to correct the

prohibited personnel practice, the Special Counsel shall

file such finding with the Board, together with any

written comments which the individual may provide.

(E) A determination by the Special Counsel under

this paragraph shall not be cited or referred to in any

proceeding under this paragraph or any other

administrative or judicial proceeding for any purpose,

without the consent of the person submitting the

allegation of a prohibited personnel practice.

(3) Whenever the Special Counsel petitions the

Board for corrective action, the Board shall provide an

opportunity for(A) oral or written comments by the Special

Counsel, the agency involved, and the Office of

Personnel Management; and

App. 55

(B) written comments by any individual who

alleges to be the subject of the prohibited personnel

practice.

(4)(A) The Board shall order such corrective action

as the Board considers appropriate, if the Board

determines that the Special Counsel has demonstrated

that a prohibited personnel practice, other than one

described in section 2302(b)(8) or section

2302(b)(9)(A)(i), (B), (C), or (D), has occurred, exists, or

is to be taken.

(B)(i) Subject to the provisions of clause (ii), in any

case involving an alleged prohibited personnel practice

as described under section 2302(b)(8) or section

2302(b)(9)(A)(i), (B), (C), or (D), the Board shall order

such corrective action as the Board considers

appropriate if the Special Counsel has demonstrated

that a disclosure or protected activity described under

section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or

(D) was a contributing factor in the personnel action

which was taken or is to be taken against the

individual.

(ii) Corrective action under clause (i) may not be

ordered if, after a finding that a protected disclosure

was a contributing factor, the agency demonstrates by

clear and convincing evidence that it would have taken

the same personnel action in the absence of such

disclosure.

(c)(1) Judicial review of any final order or decision

of the Board under this section may be obtained by any

employee, former employee, or applicant for

employment adversely affected by such order or

decision.

App. 56

(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).

(d)(1) If, in connection with any investigation under

this subchapter, the Special Counsel determines that

there is reasonable cause to believe that a criminal

violation has occurred, the Special Counsel shall report

the determination to the Attorney General and to the

head of the agency involved, and shall submit a copy of

the report to the Director of the Office of Personnel

Management and the Director of the Office of

Management and Budget.

(2) In any case in which the Special Counsel

determines that there are reasonable grounds to

believe that a prohibited personnel practice has

occurred, exists, or is to be taken, the Special Counsel

shall proceed with any investigation or proceeding

unless(A) the alleged violation has been reported to the

Attorney General; and

(B) the Attorney General is pursuing an

investigation, in which case the Special Counsel, after

consultation with the Attorney General, has discretion

as to whether to proceed.

(e) If, in connection with any investigation under

this subchapter, the Special Counsel determines that

there is reasonable cause to believe that any violation

of any law, rule, or regulation has occurred other than

one referred to in subsection (b) or (d), the Special

Counsel shall report such violation to the head of the

agency involved. The Special Counsel shall require,

within 30 days after the receipt of the report by the

App. 57

agency, a certification by the head of the agency which

states(1) that the head of the agency has personally

reviewed the report; and

(2) what action has been or is to be taken, and

when the action will be completed.

(f) During any investigation initiated under this

subchapter, no disciplinary action shall be taken

against any employee for any alleged prohibited

activity under investigation or for any related activity

without the approval of the Special Counsel.

(g) If the Board orders corrective action under this

section, such corrective action may include(1) that the individual be placed, as nearly as

possible, in the position the individual would have been

in had the prohibited personnel practice not occurred;

and

(2) reimbursement for attorney’s fees, back pay

and related benefits, medical costs incurred, travel

expenses, any other reasonable and foreseeable

consequential damages, and compensatory damages

(including interest, reasonable expert witness fees, and

costs).

(h) Any corrective action ordered under this section

to correct a prohibited personnel practice may include

fees, costs, or damages reasonably incurred due to an

agency investigation of the employee, if such

investigation was commenced, expanded, or extended

in retaliation for the disclosure or protected activity

that formed the basis of the corrective action.

(i) The Special Counsel may petition the Board to

order corrective action, including fees, costs, or

App. 58

damages reasonably incurred by an employee due to an

investigation of the employee by an agency, if the

investigation by an agency was commenced, expanded,

or extended in retaliation for a disclosure or protected

activity described in section 2302(b)(8) or subparagraph

(A)(i), (B), (C), or (D) of section 2302(b)(9), without

regard to whether a personnel action, as defined in

section 2302(a)(2)(A), is taken.

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

Stat. 23; amended Pub. L. 103–424, §§3(c), (d), 8(a),

Oct. 29, 1994, 108 Stat. 4362, 4364; Pub. L. 112–199,

title I, §§101(b)(1)(A), (2)(A), 104(c)(1), 107(b), 114(a),

Nov. 27, 2012, 126 Stat. 1465, 1468, 1469, 1472; Pub. L.

115–42, §1, June 27, 2017, 131 Stat. 883; Pub. L.

115–73, title I, §102(a), Oct. 26, 2017, 131 Stat. 1236;

Pub. L. 115–91, div. A, title X, §1097(c)(3)(A), (4), (f),

(j), Dec. 12, 2017, 131 Stat. 1619, 1622, 1625.)

EDITORIAL NOTES

AMENDMENTS

2017-Subsec. (a)(6). Pub. L. 115–91, §1097(f), added

par. (6).

Subsec. (b)(1)(B). Pub. L. 115–42 designated

existing provisions as cl. (i) and added cl. (ii).

Subsec. (b)(1)(B)(ii). Pub. L. 115–91, §1097(j), struck

out “who was appointed, by and with the advice and

consent of the Senate,” after “member of the Board”.

Subsec. (b)(1)(E). Pub. L. 115–91, §1097(c)(3)(A),

added subpar. (E) and struck out former subpar. (E)

which read as follows: “If the Merit Systems Protection

Board grants a stay under this subsection, the head of

App. 59

the agency employing the employee shall give priority

to a request for a transfer submitted by the employee.”

Pub. L. 115–73 added subpar. (E).

Subsec. (i). Pub. L. 115–91, §1097(c)(4), added

subsec. (i).

2012-Subsecs. (a)(3), (b)(4)(A). Pub. L. 112–199,

§101(b)(1)(A), inserted “or section 2302(b)(9)(A)(i), (B),

(C), or (D)” after “section 2302(b)(8)”.

Subsec. (b)(4)(B)(i). Pub. L. 112–199, §101(b)(1)(A),

(2)(A), inserted “or section 2302(b)(9)(A)(i), (B), (C), or

(D)” after “section 2302(b)(8)” in two places and

inserted “or protected activity” after “disclosure”.

Subsec. (b)(4)(B)(ii). Pub. L. 112–199, §114(a),

inserted “, after a finding that a protected disclosure

was a contributing factor,” after “ordered if”.

Subsec. (g)(2). Pub. L. 112–199, §107(b), substituted

“any other reasonable and foreseeable consequential

damages, and compensatory damages (including

interest, reasonable expert witness fees, and costs).” for

“and any other reasonable and foreseeable

consequential damages.”

Subsec. (h). Pub. L. 112–199, §104(c)(1), added

subsec. (h).

1994-Subsec. (a)(1)(D). Pub. L. 103–424, §3(c)(1),

added subpar. (D).

Subsec. (a)(2)(A)(iv). Pub. L. 103–424, §3(c)(2),

added cl. (iv).

Subsec. (b)(2). Pub. L. 103–424, §3(d), added

subpars. (A) and (E) and redesignated former

subpars. (A) to (C) as (B) to (D), respectively.

Subsec. (g). Pub. L. 103–424, §8(a), added

subsec. (g).

App. 60

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2012 AMENDMENT

Amendment by Pub. L. 112–199 effective 30 days

after Nov. 27, 2012, see section 202 of Pub. L. 112–199,

set out as a note under section 1204 of this title.

TERMINATION STATEMENT

Pub. L. 103–424, §12(b), Oct. 29, 1994, 108 Stat.

4367, provided that: “The Special Counsel shall include

in any letter terminating an investigation under

section 1214(a)(2) of title 5, United States Code, the

name and telephone number of an employee of the

Special Counsel who is available to respond to

reasonable questions from the person regarding the

investigation or review conducted by the Special

Counsel, the relevant facts ascertained by the Special

Counsel, and the law applicable to the person’s

allegations.”

5 U.S.C. § 2301: Merit system principles

Text contains those laws in effect on July 5, 2022

§2301. Merit system principles

(a) This section shall apply to(1) an Executive agency; and

(2) the Government Publishing Office.

(b) Federal personnel management should be

implemented consistent with the following merit

system principles:

(1) Recruitment should be from qualified

individuals from appropriate sources in an endeavor to

App. 61

achieve a work force from all segments of society, and

selection and advancement should be determined solely

on the basis of relative ability, knowledge, and skills,

after fair and open competition which assures that all

receive equal opportunity.

(2) All employees and applicants for employment

should receive fair and equitable treatment in all

aspects of personnel management without regard to

political affiliation, race, color, religion, national origin,

sex, marital status, age, or handicapping condition, and

with proper regard for their privacy and constitutional

rights.

(3) Equal pay should be provided for work of

equal value, with appropriate consideration of both

national and local rates paid by employers in the

private sector, and appropriate incentives and

recognition should be provided for excellence in

performance.

(4) All employees should maintain high

standards of integrity, conduct, and concern for the

public interest.

(5) The Federal work force should be used

efficiently and effectively.

(6) Employees should be retained on the basis of

the adequacy of their performance, inadequate

performance should be corrected, and employees should

be separated who cannot or will not improve their

performance to meet required standards.

(7) Employees should be provided effective

education and training in cases in which such

education and training would result in better

organizational and individual performance.

(8) Employees should be-

App. 62

(A) protected against arbitrary action,

personal favoritism, or coercion for partisan political

purposes, and

(B) prohibited from using their official

authority or influence for the purpose of interfering

with or affecting the result of an election or a

nomination for election.

(9) Employees should be protected against

reprisal for the lawful disclosure of information which

the employees reasonably believe evidences(A) a violation of any law, rule, or regulation,

(B) mismanagement, a gross waste of funds,

an abuse of authority, or a substantial and specific

danger to public health or safety.

section 2302(a)(2)(C) of this title), the President shall,

pursuant to the authority otherwise available under

this title, take any action, including the issuance of

rules, regulations, or directives; and

(2) with respect to any entity in the executive

branch which is not such an agency or part of such an

agency, the head of such entity shall, pursuant to

authority otherwise available, take any action,

including the issuance of rules, regulations, or

directives;

which is consistent with the provisions of this title

and which the President or the head, as the case may

be, determines is necessary to ensure that personnel

App. 63

management is based on and embodies the merit

system principles.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978,

92 Stat. 1113; amended Pub. L. 101–474, §5(c), Oct. 30,

1990, 104 Stat. 1099; Pub. L. 113–235, div. H, title I,

§1301(b), Dec. 16, 2014, 128 Stat. 2537.)

5 U.S.C. § 2302: Prohibited personnel practices

Text contains those laws in effect on July 5, 2022

§2302. Prohibited personnel practices

(a)(1) For the purpose of this title, “prohibited

personnel practice” means any action described in

subsection (b).

(2) For the purpose of this section(A) “personnel action” means(i) an appointment;

(ii) a promotion;

(iii) an action under chapter 75 of this title

or other disciplinary or corrective action;

(iv) a detail, transfer, or reassignment;

(v) a reinstatement;

(vi) a restoration;

(vii) a reemployment;

(viii) a performance evaluation under

chapter 43 of this title or under title 38;

(ix) a decision concerning pay, benefits, or

awards, or concerning education or training if the

education or training may reasonably be expected to

lead to an appointment, promotion, performance

evaluation, or other action described in this

subparagraph;

App. 64

(x) a decision to order psychiatric testing

or examination;

(xi) the implementation or enforcement of

any nondisclosure policy, form, or agreement; and

(xii) any other significant change in

duties, responsibilities, or working conditions;

with respect to an employee in, or applicant for, a

covered position in an agency, and in the case of an

alleged prohibited personnel practice described in

subsection (b)(8), an employee or applicant for

employment in a Government corporation as defined in

section 9101 of title 31;

(B) “covered position” means, with respect to any

personnel action, any position in the competitive

service, a career appointee position in the Senior

Executive Service, or a position in the excepted service,

but does not include any position which is, prior to the

personnel action(i) excepted from the competitive service because

of its confidential, policy-determining, policy-making,

or policy-advocating character; or

(ii) excluded from the coverage of this section by

the President based on a determination by the

President that it is necessary and warranted by

conditions of good administration;

Government Publishing Office, but does not include(i) a Government corporation, except in the case

of an alleged prohibited personnel practice described

under subsection (b)(8) or section 2302(b)(9)(A)(i), (B),

(C), or (D);

App. 65

(ii)(I) the Federal Bureau of Investigation, the

Central Intelligence Agency, the Defense Intelligence

Agency, the National Geospatial-Intelligence Agency,

the National Security Agency, the Office of the Director

of National Intelligence, and the National

Reconnaissance Office; and

(II) as determined by the President, any

executive agency or unit thereof the principal function

of which is the conduct of foreign intelligence or

counterintelligence activities, provided that the

determination be made prior to a personnel action; or

(iii) the Government Accountability Office; and

(D) “disclosure” means a formal or informal

communication or transmission, but does not include a

communication concerning policy decisions that

lawfully exercise discretionary authority unless the

employee or applicant providing the disclosure

reasonably believes that the disclosure evidences(i) any violation of any law, rule, or regulation;

(ii) gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and

specific danger to public health or safety.

(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(1) discriminate for or against any employee or

applicant for employment(A) on the basis of race, color, religion, sex, or

national origin, as prohibited under section 717 of the

Civil Rights Act of 1964 (42 U.S.C. 2000e–16);

App. 66

(B) on the basis of age, as prohibited under

sections 12 and 15 of the Age Discrimination in

Employment Act of 1967 (29 U.S.C. 631, 633a);

section 6(d) of the Fair Labor Standards Act of 1938

(29 U.S.C. 206(d));

(D) on the basis of handicapping condition, as

prohibited under section 501 of the Rehabilitation Act

of 1973 (29 U.S.C. 791); or

(E) on the basis of marital status or political

affiliation, as prohibited under any law, rule, or

regulation;

(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 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;

(3) coerce the political activity of any person

(including the providing of any political contribution or

service), or take any action against any employee or

applicant for employment as a reprisal for the refusal

of any person to engage in such political activity;

(4) deceive or willfully obstruct any person with

respect to such person’s right to compete for

employment;

App. 67

(5) influence any person to withdraw from

competition for any position for the purpose of

improving or injuring the prospects of any other person

for employment;

(6) grant any preference or advantage not

authorized by law, rule, or regulation to any employee

or applicant for employment (including defining the

scope or manner of competition or the requirements for

any position) for the purpose of improving or injuring

the prospects of any particular person for employment;

(7) appoint, employ, promote, advance, or advocate

for appointment, employment, promotion, or

advancement, in or to a civilian position any individual

who is a relative (as defined in section 3110(a)(3) of this

title) of such employee if such position is in the agency

in which such employee is serving as a public official

(as defined in section 3110(a)(2) of this title) or over

which such employee exercises jurisdiction or control as

such an official;

(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) any 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

App. 68

by Executive order to be kept secret in the interest of

national defense or the conduct of foreign affairs;

(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) any violation (other than a violation of this

section) 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; or

committee of Congress) by any employee of an agency

or applicant for employment at an agency of

information described in subparagraph (B) that is(i) not classified; or

(ii) if classified(I) has been classified by the head of an

agency that is not an element of the intelligence

community (as defined by section 3 of the National

Security Act of 1947 (50 U.S.C. 3003)); and

(II) does not reveal intelligence sources

and methods.

(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(i) with regard to remedying a violation of

paragraph (8); or

(ii) other than with regard to remedying a

violation of paragraph (8);

App. 69

(B) testifying for or otherwise lawfully assisting

any individual in the exercise of any right referred to in

subparagraph (A)(i) or (ii);

the Inspector General (or any other component

responsible for internal investigation or review) of an

agency, or the Special Counsel, in accordance with

applicable provisions of law; or

(D) refusing to obey an order that would require

the individual to violate a law, rule, or regulation;

(10) discriminate for or against any employee or

applicant for employment on the basis of conduct which

does not adversely affect the performance of the

employee or applicant or the performance of others;

except that nothing in this paragraph shall prohibit an

agency from taking into account in determining

suitability or fitness any conviction of the employee or

applicant for any crime under the laws of any State, of

the District of Columbia, or of the United States;

(11)(A) knowingly take, recommend, or approve any

personnel action if the taking of such action would

violate a veterans’ preference requirement; or

(B) knowingly fail to take, recommend, or approve

any personnel action if the failure to take such action

would violate a veterans’ preference requirement;

(12) take or fail to take any other personnel action

if the taking of or failure to take such action violates

any law, rule, or regulation implementing, or directly

concerning, the merit system principles contained in

section 2301 of this title;

(13) implement or enforce any nondisclosure policy,

form, or agreement, if such policy, form, or agreement-

App. 70

(A) does not contain the following statement:

“These provisions are consistent with and do not

supersede, conflict with, or otherwise alter the

employee obligations, rights, or liabilities created by

existing statute or Executive order relating to

(1) classified information, (2) communications to

Congress, (3) the reporting to an Inspector General or

the Office of Special Counsel of a violation of any law,

rule, or regulation, or mismanagement, a gross waste

of funds, an abuse of authority, or a substantial and

specific danger to public health or safety, or (4) any

other whistleblower protection. The definitions,

requirements, obligations, rights, sanctions, and

liabilities created by controlling Executive orders and

statutory provisions are incorporated into this

agreement and are controlling.”; or

(B) prohibits or restricts an employee or

applicant for employment from disclosing to Congress,

the Special Counsel, the Inspector General of an

agency, or any other agency component responsible for

internal investigation or review any information that

relates to any violation of any law, rule, or regulation,

or mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public

health or safety, or any other whistleblower protection;

(14) access the medical record of another employee

or an applicant for employment as a part of, or

otherwise in furtherance of, any conduct described in

paragraphs (1) through (13).

This subsection shall not be construed to authorize

the withholding of information from Congress or the

App. 71

taking of any personnel action against an employee

who discloses information to Congress. For purposes of

paragraph (8), (i) any presumption relating to the

performance of a duty by an employee whose conduct is

the subject of a disclosure as defined under

subsection (a)(2)(D) may be rebutted by substantial

evidence, and (ii) a determination as to whether an

employee or applicant reasonably believes that such

employee or applicant has disclosed information that

evidences any violation of law, rule, regulation, gross

mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public

health or safety shall be made by determining whether

a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by

the employee or applicant could reasonably conclude

that the actions of the Government evidence such

violations, mismanagement, waste, abuse, or danger.

(c)(1) In this subsection(A) the term “new employee” means an

individual(i) appointed to a position as an employee on

or after the date of enactment of this subsection; and

(ii) who has not previously served as an

employee; and

(B) the term “whistleblower protections” means

the protections against and remedies for a prohibited

personnel practice described in paragraph (8) or

subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of

subsection (b).

(2) The head of each agency shall be responsible for(A) preventing prohibited personnel practices;

App. 72

(B) complying with and enforcing applicable civil

service laws, rules, and regulations and other aspects

of personnel management; and

Counsel and the Inspector General of the agency, that

employees of the agency are informed of the rights and

remedies available to the employees under this chapter

and chapter 12, including(i) information with respect to whistleblower

protections available to new employees during a

probationary period;

(ii) the role of the Office of Special Counsel

and the Merit Systems Protection Board with respect

to whistleblower protections; and

(iii) the means by which, with respect to

information that is otherwise required by law or

Executive order to be kept classified in the interest of

national defense or the conduct of foreign affairs, an

employee may make a lawful disclosure of the

information to(I) the Special Counsel;

(II) the Inspector General of an agency;

(III) Congress (including any committee of

Congress with respect to information that is not

classified or, if classified, has been classified by the

head of an agency that is not an element of the

intelligence community and does not reveal intelligence

sources and methods); or

(IV) another employee of the agency who

is designated to receive such a disclosure.

(3) The head of each agency shall ensure that the

information described in paragraph (2) is provided to

each new employee of the agency not later than

App. 73

180 days after the date on which the new employee is

appointed.

(4) The head of each agency shall make available

information regarding whistleblower protections

applicable to employees of the agency on the public

website of the agency and on any online portal that is

made available only to employees of the agency, if such

portal exists.

(5) Any employee to whom the head of an agency

delegates authority for any aspect of personnel

management shall, within the limits of the scope of the

delegation, be responsible for the activities described in

paragraph (2).

(d) This section shall not be construed to extinguish

or lessen any effort to achieve equal employment

opportunity through affirmative action or any right or

remedy available to any employee or applicant for

employment in the civil service under(1) section 717 of the Civil Rights Act of 1964 (42

U.S.C. 2000e–16), prohibiting discrimination on the

basis of race, color, religion, sex, or national origin;

(2) sections 12 and 15 of the Age Discrimination

in Employment Act of 1967 (29 U.S.C. 631, 633a),

prohibiting discrimination on the basis of age;

(3) under section 6(d) of the Fair Labor

Standards Act of 1938 (29 U.S.C. 206(d)), prohibiting

discrimination on the basis of sex;

(4) section 501 of the Rehabilitation Act of 1973

(29 U.S.C. 791), prohibiting discrimination on the basis

of handicapping condition; or

(5) the provisions of any law, rule, or regulation

prohibiting discrimination on the basis of marital

status or political affiliation.

App. 74

(e)(1) For the purpose of this section, the term

“veterans’ preference requirement” means any of the

following provisions of law:

(A) Sections 2108, 3305(b), 3309, 3310, 3311,

3312, 3313, 3314, 3315, 3316, 3317(b), 3318, 3320,

3351, 3352, 3363, 3501, 3502(b), 3504, and 4303(e) and

(with respect to a preference eligible referred to in

section 7511(a)(1)(B)) subchapter II of chapter 75 and

section 7701.

(B) Sections 943(c)(2) and 1784(c) of title 10.

Interest Lands Conservation Act.

(D) Section 301(c) of the Foreign Service Act of

1980.

(E) Sections 106(f), 7281(e), and 7802(5) of

title 38.

(F) Section 1005(a) of title 39.

(G) Any other provision of law that the Director

of the Office of Personnel Management designates in

regulations as being a veterans’ preference

requirement for the purposes of this subsection.

(H) Any regulation prescribed under

subsection (b) or (c) of section 1302 and any other

regulation that implements a provision of law referred

to in any of the preceding subparagraphs.

(2) Notwithstanding any other provision of this title,

no authority to order corrective action shall be

available in connection with a prohibited personnel

practice described in subsection (b)(11). Nothing in this

paragraph shall be considered to affect any authority

under section 1215 (relating to disciplinary action).

(f)(1) A disclosure shall not be excluded from

subsection (b)(8) because-

App. 75

(A) the disclosure was made to a supervisor or to

a person who participated in an activity that the

employee or applicant reasonably believed to be

covered by subsection (b)(8)(A)(i) and (ii);

(B) the disclosure revealed information that had

been previously disclosed;

making the disclosure;

(D) the disclosure was not made in writing;

(E) the disclosure was made while the employee

was off duty;

(F) the disclosure was made before the date on

which the individual was appointed or applied for

appointment to a position; or

(G) of the amount of time which has passed since

the occurrence of the events described in the disclosure.

(2) If a disclosure is made during the normal course

of duties of an employee, the principal job function of

whom is to regularly investigate and disclose

wrongdoing (referred to in this paragraph as the

“disclosing employee”), the disclosure shall not be

excluded from subsection (b)(8) if the disclosing

employee demonstrates that an employee who has the

authority to take, direct other individuals to take,

recommend, or approve any personnel action with

respect to the disclosing employee took, failed to take,

or threatened to take or fail to take a personnel action

with respect to the disclosing employee in reprisal for

the disclosure made by the disclosing employee.

(Added Pub. L. 95–454, title I, §101(a), Oct. 13, 1978,

92 Stat. 1114; amended Pub. L. 101–12, §4, Apr. 10,

1989, 103 Stat. 32; Pub. L. 101–474, §5(d), Oct. 30,

App. 76

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; Pub. L. 103–359, title V, §501(c),

Oct. 14, 1994, 108 Stat. 3429; Pub. L. 103–424, §5,

Oct. 29, 1994, 108 Stat. 4363; Pub. L. 104–197, title III,

§315(b)(2), Sept. 16, 1996, 110 Stat. 2416, Pub. L.

104–201, div. A, title XI, §1122(a)(1), title XVI,

§1615(b), Sept. 23, 1996, 110 Stat. 2687, 2741; Pub. L.

105–339, §6(a), (b), (c)(2), Oct. 31, 1998, 112 Stat. 3187,

3188; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat.

814; Pub. L. 110–417, [div. A], title IX, §931(a)(1),

Oct. 14, 2008, 122 Stat. 4575; Pub. L. 112–199, title I,

§§101(a), (b)(1) (B), (2)(B), (C), 102–104(b)(1), 105, 112,

Nov. 27, 2012, 126 Stat. 1465–1468, 1472; Pub. L.

112–277, title V, §505(a), Jan. 14, 2013, 126 Stat. 2478;

Pub. L. 113–235, div. H, title I, §1301(b), Dec. 16, 2014,

128 Stat. 2537; Pub. L. 114–113, div. J, title II, §238,

Dec. 18, 2015, 129 Stat. 2700; Pub. L. 115–40, §2,

June 14, 2017, 131 Stat. 861; Pub. L. 115–73, title I,

§§103, 107(a)(1), Oct. 26, 2017, 131 Stat. 1236, 1238;

Pub. L. 115–91, div. A, title X, §1097(b)(1)(B), (c)(1),

Dec. 12, 2017, 131 Stat. 1616, 1618; Pub. L. 116–92,

div. E, title LVII, §5721, Dec. 20, 2019, 133 Stat. 2175;

Pub. L. 116–283, div. A, title XI, §1138, Jan. 1, 2021,

134 Stat. 3905.)

EDITORIAL NOTES

REFERENCES IN TEXT

Section 1308(b) of the Alaska National Interest

Lands Conservation Act, referred to in subsec. (e)(1)(C),

is classified to section 3198(b) of Title 16, Conservation.

Section 301(c) of the Foreign Service Act of 1980,

referred to in subsec. (e)(1)(D), is classified to

App. 77

section 3941(c) of Title 22, Foreign Relations and

Intercourse.

Section 106(f) of title 38, referred to in

subsec. (e)(1)(E), was enacted subsequent to the

enactment of subsec. (e) of this section.

Section 7802(5) of title 38, referred to in

subsec. (e)(1)(E), was redesignated section 7802(e) of

title 38 by Pub. L. 108–170, title III, §304(b)(3), Dec. 6,

2003, 117 Stat. 2059.

AMENDMENTS

2021-Subsec. (b)(13). Pub. L. 116–283 substituted

“agreement-” for “agreement”, designated remainder of

existing provisions as subpar. (A), inserted “or the

Office of Special Counsel” after “Inspector General”,

and added subpar. (B).

2019-Subsec. (b)(8)(C). Pub. L. 116–92, §5721(1),

added subpar. (C).

Subsec. (c)(2)(C)(iii)(III). Pub. L. 116–92, §5721(2),

inserted “(including any committee of Congress with

respect to information that is not classified or, if

classified, has been classified by the head of an agency

that is not an element of the intelligence community

and does not reveal intelligence sources and methods)”

after “Congress”.

2017-Subsec. (b)(9)(C). Pub. L. 115–91,

§1097(c)(1)(A), inserted “(or any other component

responsible for internal investigation or review)” after

“Inspector General”.

Subsec. (b)(9)(D). Pub. L. 115–40 struck out “for”

after “(D)” and inserted “, rule, or regulation” after “a

law”.

App. 78

Subsec. (b)(14). Pub. L. 115–73, §103, added

par. (14).

Subsecs. (c) to (f). Pub. L. 115–91, §1097(b)(1)(B),

added subsec. (c) and redesignated former subsecs. (c)

to (e) as (d) to (f), respectively.

Pub. L. 115–73, §107(a)(1), redesignated subsecs. (d)

to (f) as (c) to (e), respectively, and struck out former

subsec. (c) which read as follows: “The head of each

agency shall be responsible for the prevention of

prohibited personnel practices, for the compliance with

and enforcement of applicable civil service laws, rules,

and regulations, and other aspects of personnel

management, and for ensuring (in consultation with

the Office of Special Counsel) that agency employees

are informed of the rights and remedies available to

them under this chapter and chapter 12 of this title,

including how to make a lawful disclosure of

information that is specifically required by law or

Executive order to be kept classified in the interest of

national defense or the conduct of foreign affairs to the

Special Counsel, the Inspector General

5 U.S.C. § 7502: Actions covered

Text contains those laws in effect on July 5, 2022

§7502. Actions covered

This subchapter applies to a suspension for 14 days

or less, but does not apply to a suspension under

section 7521 or 7532 of this title or any action initiated

under section 1215 of this title.

App. 79

(Added Pub. L. 95–454, title II, §204(a), Oct. 13, 1978,

92 Stat. 1135; amended Pub. L. 101–12, §9(a)(2),

Apr. 10, 1989, 103 Stat. 35.)

EDITORIAL NOTES

AMENDMENTS

1989-Pub. L. 101–12 substituted “1215” for “1206”.

STATUTORY NOTES AND RELATED SUBSIDIARIES

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.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see

section 907 of Pub. L. 95–454, set out as an Effective

Date of 1978 Amendment note under section 1101 of

this title.

5 U.S.C. § 7503: Cause and procedure

Text contains those laws in effect on July 5, 2022

§7503. Cause and procedure

(a) Under regulations prescribed by the Office of

Personnel Management, an employee may be

suspended for 14 days or less for such cause as will

promote the efficiency of the service (including

discourteous conduct to the public confirmed by an

immediate supervisor’s report of four such instances

App. 80

within any one-year period or any other pattern of

discourteous conduct).

(b) An employee against whom a suspension for

14 days or less is proposed is entitled to(1) an advance written notice stating the specific

reasons for the proposed action;

(2) a reasonable time to answer orally and in

writing and to furnish affidavits and other

documentary evidence in support of the answer;

(3) be represented by an attorney or other

representative; and

(4) a written decision and the specific reasons

therefor at the earliest practicable date.

answer of the employee if written, a summary thereof

if made orally, the notice of decision and reasons

therefor, and any order effecting1 the suspension,

together with any supporting material, shall be

maintained by the agency and shall be furnished to the

Merit Systems Protection Board upon its request and

to the employee affected upon the employee’s request.

(Added Pub. L. 95–454, title II, §204(a), Oct. 13, 1978,

92 Stat. 1135.)

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see

section 907 of Pub. L. 95–454, set out as an Effective

So in original. Probably should be “affecting”.

App. 81

Date of 1978 Amendment note under section 1101 of

this title.

INFORMATION ON APPEAL RIGHTS

Pub. L. 115–91, div. A, title X, §1097(b)(2), Dec. 12,

2017, 131 Stat. 1617, provided that:

“(A) IN GENERAL.-Any notice provided to an

employee under section 7503(b)(1), section 7513(b)(1),

or section 7543(b)(1) of title 5, United States Code,

shall include detailed information with respect to“(i) the right of the employee to appeal an action

brought under the applicable section;

“(ii) the forums in which the employee may file

an appeal described in clause (i); and

“(iii) any limitations on the rights of the

employee that would apply because of the forum in

which the employee decides to file an appeal.

“(B) D EVELOPMENT OF INFORMATION .-The

information described in subparagraph (A) shall be

developed by the Director of the Office of Personnel

Management, in consultation with the Special Counsel,

the Merit Systems Protection Board, and the Equal

Employment Opportunity Commission.”

5 U.S.C. § 7512: Actions covered

Text contains those laws in effect on July 5, 2022

§7512. Actions covered

This subchapter applies to(1) a removal;

(2) a suspension for more than 14 days;

(3) a reduction in grade;

App. 82

(4) a reduction in pay; and

(5) a furlough of 30 days or less;

but does not apply to(A) a suspension or removal under section 7532

of this title,

(B) a reduction-in-force action under

section 3502 of this title,

manager who has not completed the probationary

period under section 3321(a)(2) of this title if such

reduction is to the grade held immediately before

becoming such a supervisor or manager,

(D) a reduction in grade or removal under

section 4303 of this title,

(E) an action initiated under section 1215 or

7521 of this title, or

(F) a suitability action taken by the Office under

regulations prescribed by the Office, subject to the

rules prescribed by the President under this title for

the administration of the competitive service.

(Added Pub. L. 95–454, title II, §204(a), Oct. 13, 1978,

92 Stat. 1136; amended Pub. L. 101–12, §9(a)(2),

Apr. 10, 1989, 103 Stat. 35; Pub. L. 114–92, div. A, title

X, §1086(f)(9), Nov. 25, 2015, 129 Stat. 1010.)

EDITORIAL NOTES

PRIOR PROVISIONS

A prior section 7512, Pub. L. 89–554, Sept. 6, 1966,

80 Stat. 528, related to adverse action against a

preference eligible employee and procedures applicable

App. 83

to such adverse action, prior to repeal by Pub. L.

95–454, §204(a).

AMENDMENTS

2015-Par. (F). Pub. L. 114–92 added par. (F).

1989-Par. (E). Pub. L. 101–12 substituted “1215” for

“1206”.

STATUTORY NOTES AND RELATED SUBSIDIARIES

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.

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see

section 907 of Pub. L. 95–454, set out as an Effective

Date of 1978 Amendment note under section 1101 of

this title.

5 U.S.C. § 7513: Cause and procedure

Text contains those laws in effect on July 5, 2022

§7513. Cause and procedure

(a) Under regulations prescribed by the Office of

Personnel Management, an agency may take an action

covered by this subchapter against an employee only

for such cause as will promote the efficiency of the

service.

(b) An employee against whom an action is proposed

is entitled to-

App. 84

(1) at least 30 days’ advance written notice,

unless there is reasonable cause to believe the

employee has committed a crime for which a sentence

of imprisonment may be imposed, stating the specific

reasons for the proposed action;

(2) a reasonable time, but not less than 7 days,

to answer orally and in writing and to furnish

affidavits and other documentary evidence in support

of the answer;

(3) be represented by an attorney or other

representative; and

(4) a written decision and the specific reasons

therefor at the earliest practicable date.

hearing which may be in lieu of or in addition to the

opportunity to answer provided under subsection (b)(2)

of this section.

(d) An employee against whom an action is taken

under this section is entitled to appeal to the Merit

Systems Protection Board under section 7701 of this

title.

(e) Copies of the notice of proposed action, the

answer of the employee when written, a summary

thereof when made orally, the notice of decision and

reasons therefor, and any order effecting an action

covered by this subchapter, together with any

supporting material, shall be maintained by the agency

and shall be furnished to the Board upon its request

and to the employee affected upon the employee’s

request.

(Added Pub. L. 95–454, title II, §204(a), Oct. 13, 1978,

92 Stat. 1136.)

App. 85

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE

Section effective 90 days after Oct. 13, 1978, see

section 907 of Pub. L. 95–454, set out as an Effective

Date of 1978 Amendment note under section 1101 of

this title.

5 U.S.C. § 7701: Appellate procedures

Text contains those laws in effect on July 5, 2022

§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

App. 86

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).

App. 87

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, 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

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

App. 88

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

App. 89

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.

App. 90

(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

App. 91

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.

5 U.S.C. § 7703: Judicial review of decisions of

the Merit Systems Protection Board

Text contains those laws in effect on July 5, 2022

§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

App. 92

decision of the Merit Systems Protection Board may

obtain judicial review of the order or decision.

(2) The Board shall be 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 on the merits on the

underlying personnel action or on a request for

attorney fees, in which case the agency responsible for

taking the personnel action shall be the respondent.

(b)(1)(A) Except as provided in subparagraph (B)

and paragraph (2) of this subsection, a petition to

review a final order or final decision of the Board shall

be filed in the United States Court of Appeals for the

Federal Circuit. Notwithstanding any other provision

of law, any petition for review shall be filed within

60 days after the Board issues notice of the final order

or decision of the Board.

(B) A petition to review a final order or final

decision of the Board that raises no challenge to the

Board’s disposition of allegations of a prohibited

personnel practice described in section 2302(b) other

than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D) shall be filed in the

United States Court of Appeals for the Federal Circuit

or any court of appeals of competent jurisdiction.

Notwithstanding any other provision of law, any

petition for review shall be filed within 60 days after

the Board issues 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

App. 93

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.

Appeals for the Federal Circuit, 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)(1) Except as provided under paragraph (2), this

paragraph shall apply to any review obtained by the

Director of the Office of Personnel Management. The

Director may obtain review of any final order or

decision of the Board by filing, within 60 days after the

Board issues notice of the final order or decision of the

Board, a petition for judicial review in the United

States Court of Appeals for the Federal Circuit if the

Director determines, in the discretion of the Director,

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

App. 94

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.

(2) This paragraph shall apply to any review

obtained by the Director of the Office of Personnel

Management that raises no challenge to the Board’s

disposition of allegations of a prohibited personnel

practice described in section 2302(b) other than

practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D). The Director may

obtain review of any final order or decision of the Board

by filing, within 60 days after the Board issues notice

of the final order or decision of the Board, a petition for

judicial review in the United States Court of Appeals

for the Federal Circuit or any court of appeals of

competent jurisdiction if the Director determines, in

the discretion of the Director, 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,

App. 95

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.

(Added Pub. L. 95–454, title II, §205, Oct. 13, 1978, 92

Stat. 1143; amended Pub. L. 97–164, title I, §144,

Apr. 2, 1982, 96 Stat. 45; Pub. L. 101–12, §10, Apr. 10,

1989, 103 Stat. 35; Pub. L. 105–311, §10(a), Oct. 30,

1998, 112 Stat. 2954; Pub. L. 112–199, title I, §108,

Nov. 27, 2012, 126 Stat. 1469; Pub. L. 113–170, §2,

Sept. 26, 2014, 128 Stat. 1894; Pub. L. 115–195, §2(a),

(b), July 7, 2018, 132 Stat. 1510.)

EDITORIAL NOTES

AMENDMENTS

2018-Subsec. (b)(1)(B). Pub. L. 115–195, §2(a),

substituted “A petition” for “During the 5-year period

beginning on the effective date of the Whistleblower

Protection Enhancement Act of 2012, a petition”.

Subsec. (d)(2). Pub. L. 115–195, §2(b), substituted

“This paragraph” for “During the 5-year period

beginning on the effective date of the Whistleblower

Protection Enhancement Act of 2012, this paragraph”.

2014-Subsecs. (b)(1)(B), (d)(2). Pub. L. 113–170

substituted “5-year” for “2-year”.

2012-Subsec. (b)(1). Pub. L. 112–199, §108(a), added

par. (1) and struck out former par. (1) which read as

follows: “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 United States

App. 96

Court of Appeals for the Federal Circuit.

Notwithstanding any other provision of law, any

petition for review must be filed within 60 days after

the date the petitioner received notice of the final order

or decision of the Board.”

Subsec. (d). Pub. L. 112–199, §108(b), amended

subsec. (d) generally. Prior to amendment, subsec. (d)

read as follows: “The Director of the Office of Personnel

Management may obtain review of any final order or

decision of the Board by filing, within 60 days after the

date the Director received notice of the final order or

decision of the Board, a petition for judicial review in

the United States Court of Appeals for the Federal

Circuit 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.”

1998-Subsec. (b)(1). Pub. L. 105–311, §10(a)(1),

substituted “within 60 days” for “within 30 days”.

Subsec. (d). Pub. L. 105–311, §10(a)(2), in first

sentence, inserted “, within 60 days after the date the

App. 97

Director received notice of the final order or decision of

the Board,” after “filing”.

1989-Subsec. (a)(2). Pub. L. 101–12 amended

par. (2) generally. Prior to amendment, par. (2) read as

follows: “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.”

1982-Subsec. (b)(1). Pub. L. 97–164, §144(1),

substituted “United States Court of Appeals for the

Federal Circuit” for “Court of Claims or a United States

court of appeals as provided in chapters 91 and 158,

respectively, of title 28”.

Subsec. (c). Pub. L. 97–164, §144(2), substituted

“Court of Appeals for the Federal Circuit” for “Court of

Claims or a United States court of appeals”.

Subsec. (d). Pub. L. 97–164, §144(3), substituted

“United States Court of Appeals for the Federal

Circuit” for “United States Court of Appeals for the

District of Columbia”.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2018 AMENDMENT

Pub. L. 115–195, §2(c), July 7, 2018, 132 Stat. 1510,

provided that: “The amendments made by this section

[amending this section] shall take effect as if enacted

on November 26, 2017.”

App. 98

8 U.S.C. § 1182: Excludable Aliens

Text contains those laws in effect on January 4, 1995

§1182. Excludable aliens

(a) Classes of excludable aliens

Except as otherwise provided in this chapter, the

following describes classes of excludable aliens who are

ineligible to receive visas and who shall be excluded

from admission into the United States:

(1) Health-related grounds

(A) In general

Any alien—

(i) who is determined (in accordance with

regulations prescribed by the Secretary of

Health and Human Services) to have a

communicable disease of public health

significance, which shall include infection

with the etiologic agent for acquired immune

deficiency syndrome,

(ii) who is determined (in accordance with

regulations prescribed by the Secretary of

Health and Human Services in consultation

with the Attorney General)—

(I) to have a physical or mental disorder

and behavior associated with the disorder that

may pose, or has posed, a threat to the property,

safety, or welfare of the alien or others, or

(II) to have had a physical or mental

disorder and a history of behavior associated

with the disorder, which behavior has posed a

threat to the property, safety, or welfare of the

alien or others and which behavior is likely to

recur or to lead to other harmful behavior, or

App. 99

(iii) who is determined (in accordance with

regulations prescribed by the Secretary of

Health and Human Services) to be a drug abuser

or addict,

is excludable.

(B) Waiver authorized

For provision authorizing waiver of certain clauses

of subparagraph (A), see subsection (g) of this section.

(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general

Except as provided in clause (ii), any alien

convicted of, or who admits having

committed, or who admits committing acts

which constitute the essential elements of—

(I) a crime involving moral turpitude

(other than a purely political offense) or an

attempt or conspiracy to commit such a

crime, or

(II) a violation of (or a conspiracy or

attempt to violate) any law or regulation of a

State, the United States, or a foreign country

relating to a controlled substance (as defined

in section 802 of title 21),

is excludable.

***

App. 100

10 U.S.C. § 1580a: Emergency essential

employees: notification of required

participation in anthrax vaccine immunization

program

Text contains those laws in effect on July 7, 2022

§1580a. Emergency essential employees:

notification of required participation in

anthrax vaccine immunization program

The Secretary of Defense shall(1) prescribe regulations for the purpose of ensuring

that any civilian employee of the Department of

Defense who is determined to be an emergency

essential employee and who is required to participate

in the anthrax vaccine immunization program is

notified of the requirement to participate in the

program and the consequences of a decision not to

participate; and

(2) ensure that any individual who is being

considered for a position as such an employee is

notified of the obligation to participate in the program

before being offered employment in such position.

(Added Pub. L. 106–398, §1 [[div. A], title VII,

§751(c)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-194.)

App. 101

29 U.S.C. § 651: Congressional statement of

findings and declaration of purpose and policy

Text contains those laws in effect on July 7, 2022

§651. Congressional statement of findings and

declaration of purpose and policy

(a) The Congress finds that personal injuries and

illnesses arising out of work situations impose a

substantial burden upon, and are a hindrance to,

interstate commerce in terms of lost production, wage

loss, medical expenses, and disability compensation

payments.

(b) The Congress declares it to be its purpose and

policy, through the exercise of its powers to regulate

commerce among the several States and with foreign

nations and to provide for the general welfare, to

assure so far as possible every working man and

woman in the Nation safe and healthful working

conditions and to preserve our human resources(1) by encouraging employers and employees in

their efforts to reduce the number of occupational

safety and health hazards at their places of

employment, and to stimulate employers and

employees to institute new and to perfect existing

programs for providing safe and healthful working

conditions;

(2) by providing that employers and employees

have separate but dependent responsibilities and rights

with respect to achieving safe and healthful working

conditions;

(3) by authorizing the Secretary of Labor to set

mandatory occupational safety and health standards

applicable to businesses affecting interstate commerce,

App. 102

and by creating an Occupational Safety and Health

Review Commission for carrying out adjudicatory

functions under this chapter;

(4) by building upon advances already made

through employer and employee initiative for providing

safe and healthful working conditions;

(5) by providing for research in the field of

occupational safety and health, including the

psychological factors involved, and by developing

innovative methods, techniques, and approaches for

dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases,

establishing causal connections between diseases and

work in environmental conditions, and conducting

other research relating to health problems, in

recognition of the fact that occupational health

standards present problems often different from those

involved in occupational safety;

(7) by providing medical criteria which will

assure insofar as practicable that no employee will

suffer diminished health, functional capacity, or life

expectancy as a result of his work experience;

(8) by providing for training programs to

increase the number and competence of personnel

engaged in the field of occupational safety and health;

(9) by providing for the development and

promulgation of occupational safety and health

standards;

(10) by providing an effective enforcement

program which shall include a prohibition against

giving advance notice of any inspection and sanctions

for any individual violating this prohibition;

(11) by encouraging the States to assume the

fullest responsibility for the administration and

App. 103

enforcement of their occupational safety and health

laws by providing grants to the States to assist in

identifying their needs and responsibilities in the area

of occupational safety and health, to develop plans in

accordance with the provisions of this chapter, to

improve the administration and enforcement of State

occupational safety and health laws, and to conduct

experimental and demonstration projects in connection

therewith;

(12) by providing for appropriate reporting

procedures with respect to occupational safety and

health which procedures will help achieve the

objectives of this chapter and accurately describe the

nature of the occupational safety and health problem;

(13) by encouraging joint labor-management

efforts to reduce injuries and disease arising out of

employment.

(Pub. L. 91-596, §2, Dec. 29, 1970, 84 Stat. 1590.)

EDITORIAL NOTES

REFERENCES IN TEXT

This chapter, referred to in subsec. (b)(3), (11), and

(12), was in the original “this Act”, meaning Pub. L. 91596, Dec. 29, 1970, 84 Stat. 1590. For complete

classification of this Act to the Code, see Short Title

note set out under this section and Tables.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE

Pub. L. 91-596, §34, Dec. 29, 1970, 84 Stat. 1620,

provided that: “This Act [enacting this chapter and

App. 104

section 3142-1 of Title 42, The Public Health and

Welfare, amending section 553 of this title, sections

5108, 5314, 5315, and 7902 of Title 5, Government

Organization and Employees, sections 633 and 636 of

Title 15,Commerce and Trade, section 1114 of Title 18,

Crimes and Criminal Procedure, and section 1421 of

former Title 49, Transportation, and enacting

provisions set out as notes under this section and

section 1114 of Title 18] shall take effect one hundred

and twenty days after the date of its enactment

[Dec. 29, 1970].”

SHORT TITLE OF 1998 AMENDMENT

Pub. L. 105-197, §1, July 16, 1998, 112 Stat. 638,

provided that: “This Act [amending section 670 of this

title] may be cited as the ‘Occupational Safety and

Health Administration Compliance Assistance

Authorization Act of 1998’.”

SHORT TITLE

Pub. L. 91-596, §1, Dec. 29, 1970, 84 Stat. 1590,

provided: “That this Act [enacting this chapter and

section 3142-1 of Title 42, The Public Health and

Welfare, amending section 553 of this title, sections

5108, 5314, 5315, and 7902 of Title 5, Government

Organization and Employees, sections 633 and 636 of

Title 15, Commerce and Trade, section 1114 of Title 18,

Crimes and Criminal Procedure, and section 1421 of

former Title 49, Transportation, and enacting

provisions set out as notes under this section and

section 1114 of Title 18] may be cited as the

‘Occupational Safety and Health Act of 1970’.”

App. 105

5 C.F.R.

§ 752.203 Procedures.

(a) Statutory entitlements. An employee under this

subpart whose suspension is proposed under this

subpart is entitled to the procedures provided in 5

U.S.C. 7503(b).

(b) Notice of proposed action. The notice must state

the specific reason(s) for the proposed action, and

inform the employee of his or her right to review the

material which is relied on to support the reasons for

action given in the notice. The notice must further

include detailed information with respect to any right

to appeal the action pursuant to section 1097(b)(2)(A)

of Public Law 115-91, the forums in which the

employee may file an appeal, and any limitations on

the rights of the employee that would apply because of

the forum in which the employee decides to file.

a reasonable time, but not less than 24 hours, to

answer orally and in writing and to furnish affidavits

and other documentary evidence in support of the

answer.

(d) Representation. An employee covered by this

subpart is entitled to be represented by an attorney or

other representative. An agency may disallow as an

employee’s representative an individual whose

activities as representative would cause a conflict of

interest or position, or an employee of the agency

whose release from his or her official position would

give rise to unreasonable costs or whose priority work

assignments preclude his or her release.

App. 106

(e) Agency decision. (1) In arriving at its decision,

the agency will consider only the reasons specified in

the notice of proposed action and any answer of the

employee or his or her representative, or both, made to

a designated official.

(2) The agency must specify in writing the reason(s)

for the decision and advise the employee of any

grievance rights under paragraph (f) of this section.

The agency must deliver the notice of decision to the

employee on or before the effective date of the action.

(f) Grievances. The employee may file a grievance

through an agency administrative grievance system (if

applicable) or, if the suspension falls within the

coverage of an applicable negotiated grievance

procedure, an employee in an exclusive bargaining unit

may file a grievance only under that procedure.

Sections 7114(a)(5) and 7121(b)(1)(C) of title 5, U.S.

Code, and the terms of any collective bargaining

agreement, govern representation for employees in an

exclusive bargaining unit who grieve a suspension

under this subpart through the negotiated grievance

procedure.

(g) Agency records. The agency must maintain

copies of, and will furnish to the Merit Systems

Protection Board and to the employee upon their

request, the following documents:

(1) Notice of the proposed action;

(2) Employee’s written reply, if any;

(3) Summary of the employee’s oral reply, if any;

(4) Notice of decision; and

(5) Any order effecting the suspension, together

with any supporting material.

(h) Settlement agreements. (1) An agency shall not

agree to erase, remove, alter, or withhold from another

App. 107

agency any information about a civilian employee’s

performance or conduct in that employee’s official

personnel records, including an employee’s Official

Personnel Folder and Employee Performance File, as

part of, or as a condition to, resolving a formal or

informal complaint by the employee or settling an

administrative challenge to an adverse action.

(2) The requirements described in paragraph (h)(1)

of this section should not be construed to prevent

agencies from taking corrective action should it come to

light, including during or after the issuance of an

adverse personnel action that the information

contained in a personnel record is not accurate or

records an action taken by the agency illegally or in

error. In such cases, an agency would have the

authority, unilaterally or by agreement, to modify an

employee’s personnel record(s) to remove inaccurate

information or the record of an erroneous or illegal

action. An agency may take such action even if an

appeal/complaint has been filed relating to the

information that the agency determines to be

inaccurate or to reflect an action taken illegally or in

error. In all events, however, the agency must ensure

that it removes only information that the agency itself

has determined to be inaccurate or to reflect an action

taken illegally or in error. And an agency should report

any agreements relating to the removal of such

information as part of its annual report to the OPM

Director required by Section 6 of E.O. 13839.

Documents subject to withdrawal or modification could

include, for example, an SF–50 issuing a disciplinary or

performance-based action, a decision memorandum

accompanying such action or an employee performance

appraisal.

App. 108

(3) Corrective action based on discovery of material

information prior to final agency action. When

persuasive evidence comes to light prior to the issuance

of a final agency decision on an adverse personnel

action casting doubt on the validity of the action or the

ability of the agency to sustain the action in litigation,

an agency may decide to cancel or vacate the proposed

action. Additional information may come to light at any

stage of the process prior to final agency decision

including during an employee response period. To the

extent an employee’s personnel file or other agency

records contain a proposed action that is subsequently

cancelled, an agency would have the authority to

remove that action from the employee’s personnel file

or other agency records. The requirements described in

paragraph (h)(1) of this section would, however,

continue to apply to any accurate information about the

employee’s conduct leading up to that proposed action

or separation from Federal service.

[74 FR 63532, Dec. 4, 2009, as amended at 85 FR

65985, Oct. 16, 2020]

Subpart C [Reserved]

Subpart D—Regulatory Requirements for

Removal, Suspension for More Than 14 Days,

Reduction in Grade or Pay, or Furlough for 30

Days or Less

§ 752.401 Coverage.

(a) Adverse actions covered. This subpart applies to

the following actions:

(1) Removals;

App. 109

(2) Suspensions for more than 14 days, including

indefinite suspensions;

(3) Reductions in grade;

(4) Reductions in pay; and

(5) Furloughs of 30 days or less.

(b) Actions excluded. This subpart does not apply to:

(1) An action imposed by the Merit Systems

Protection Board under the authority of 5 U.S.C. 1215;

(2) The reduction in grade of a supervisor or

manager who has not completed the probationary

period under 5 U.S.C. 3321(a)(2) if such a reduction is

to the grade held immediately before becoming a

supervisor or manager;

(3) A reduction-in-force action under 5 U.S.C. 3502;

(4) A reduction in grade or removal under 5 U.S.C.

4303;

(5) An action against an administrative law judge

under 5 U.S.C. 7521;

(6) A suspension or removal under 5 U.S.C. 7532;

(7) Actions taken under any other provision of law

which excepts the action from subchapter II of

chapter 75 of title 5, United States Code;

(8) Action that entitles an employee to grade

retention under part 536 of this chapter, and an action

to terminate this entitlement;

(9) A voluntary action by the employee;

(10) Action taken or directed by the Office of

Personnel Management under part 731 of this chapter;

(11) Termination of appointment on the expiration

date specified as a basic condition of employment at the

time the appointment was made;

(12) Action that terminates a temporary or term

promotion and returns the employee to the position

from which temporarily promoted, or to a different

App. 110

position of equivalent grade and pay, if the agency

informed the employee that it was to be of limited

duration;

(13) Cancellation of a promotion to a position not

classified prior to the promotion;

(14) Placement of an employee serving on an

intermittent or seasonal basis in a temporary nonduty,

nonpay status in accordance with conditions

established at the time of appointment;

(15) Reduction of an employee’s rate of basic pay

from a rate that is contrary to law or regulation,

including a reduction necessary to comply with the

amendments made by Public Law 108–411, regarding

pay-setting under the General Schedule and Federal

Wage System and regulations implementing those

amendments; or

***

Code, who is an alien or noncitizen occupying a position

outside the United States;

(11) A nonpreference eligible employee serving a

probationary or trial period under an initial

appointment in the excepted service pending

conversion to the competitive service, unless he or she

meets the requirements of paragraph (c)(5) of this

section;

(12) An employee whose agency or position has been

excluded from the appointing provisions of titl

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.