§ 1221. Individual right of action in certain reprisal cases
(a)
Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section
2302
(b)(8), seek corrective action from the Merit Systems Protection Board.
(b)
This section may not be construed to prohibit any employee, former employee, or applicant for employment from seeking corrective action from the Merit Systems Protection Board before seeking corrective action from the Special Counsel, if such employee, former employee, or applicant for employment has the right to appeal directly to the Board under any law, rule, or regulation.
(c)
(1)
Any employee, former employee, or applicant for employment seeking corrective action under subsection (a) may request that the Board order a stay of the personnel action involved.
(2)
Any stay requested under paragraph (1) shall be granted within 10 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date the request is made, if the Board determines that such a stay would be appropriate.
(3)
(A)
The Board shall allow any agency which would be subject to a stay under this subsection to comment to the Board on such stay request.
(d)
(1)
At the request of an employee, former employee, or applicant for employment seeking corrective action under subsection (a), the Board shall issue a subpoena for the attendance and testimony of any person or the production of documentary or other evidence from any person if the Board finds that the testimony or production requested is not unduly burdensome and appears reasonably calculated to lead to the discovery of admissible evidence.
(2)
A subpoena under this subsection may be issued, and shall be enforced, in the same manner as applies in the case of subpoenas under section
1204.
(e)
(1)
Subject to the provisions of paragraph (2), in any case involving an alleged prohibited personnel practice as described under section
2302
(b)(8), the Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure described under section
2302
(b)(8) was a contributing factor in the personnel action which was taken or is to be taken against such employee, former employee, or applicant. The employee may demonstrate that the disclosure was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—
(f)
(1)
A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section.
(2)
A decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.
(3)
If, based on evidence presented to it under this section, the Merit Systems Protection Board determines that there is reason to believe that a current employee may have committed a prohibited personnel practice, the Board shall refer the matter to the Special Counsel to investigate and take appropriate action under section
1215.
(g)
(1)
(2)
If an employee, former employee, or applicant for employment is the prevailing party before the Merit Systems Protection Board, and the decision is based on a finding of a prohibited personnel practice, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred.
(3)
If an employee, former emloyee,[1] or applicant for employment is the prevailing party in an appeal from the Merit Systems Protection Board, the agency involved shall be liable to the employee, former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred, regardless of the basis of the decision.
(h)
(i)
Subsections (a) through (h) shall apply in any proceeding brought under section
7513
(d) if, or to the extent that, a prohibited personnel practice as defined in section
2302
(b)(8) is alleged.
(j)
In determining the appealability of any case involving an allegation made by an individual under the provisions of this chapter, neither the status of an individual under any retirement system established under a Federal statute nor any election made by such individual under any such system may be taken into account.
[1] So in original. Probably should be “employee,”.