§ 7702. Actions involving discrimination
(a)
(1)
Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who—
(A)
has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and
(B)
alleges that a basis for the action was discrimination prohibited by—
(iv)
sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or
(v)
any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,
the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures under section
7701 of this title and this section.
(2)
In any matter before an agency which involves—
(B)
any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;
the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection.
(3)
Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of—
(b)
(1)
An employee or applicant may, within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision.
(2)
The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue.
(3)
If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either—
(B)
issue in writing another decision which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law—
(4)
In considering any decision of the Board under this subsection, the Commission may refer the case to the Board, or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers necessary to supplement the record.
(c)
Within 30 days after receipt by the Board of the decision of the Commission under subsection (b)(5)(B) of this section, the Board shall consider the decision and—
(2)
to the extent that the Board finds that, as a matter of law,
(A)
the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or
(B)
the Commission decision involving such provision is not supported by the evidence in the record as a whole—
If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action.
(d)
(1)
If the Board takes any action under subsection (c)(2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including—
(2)
(3)
The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision.
(4)
The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter.
(5)
Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to review on an interim basis, the action referred to in subsection (a)(1) of this section.
(6)
(A)
Each time the Board takes any action under subsection (c)(2) of this section, a special panel shall be convened which shall consist of—
(i)
an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened;
(ii)
one member of the Board designated by the Chairman of the Board each time a panel is convened; and
(iii)
one member of the Commission designated by the Chairman of the Commission each time a panel is convened.
The chairman of the special panel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
(e)
(1)
Notwithstanding any other provision of law, if at any time after—
(A)
the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection;
(B)
the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b)(1) of this section); or
(C)
the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section;
an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16
(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a
(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216
(b)).
(f)
In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.