5 USC 7515 - Discipline of supervisors based on retaliation against whistleblowers

Collapse to view only § 7515. Discipline of supervisors based on retaliation against whistleblowers

§ 7511. Definitions; application
§ 7512. Actions covered
§ 7513. Cause and procedure
§ 7514. Regulations
§ 7515. Discipline of supervisors based on retaliation against whistleblowers

§ 7511. Definitions; application

(a) For the purpose of this subchapter—

(1) “employee” means—

(A) an individual in the competitive service—

(i) who is not serving a probationary or trial period under an initial appointment; or

(ii) who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;

(B) a preference eligible in the excepted service who has completed 1 year of current continuous service in the same or similar positions—

(i) in an Executive agency; or

(ii) in the United States Postal Service or Postal Regulatory Commission; and

(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or

(ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less;

(2) “suspension” has the same meaning as set forth in section 7501(2) of this title;

(3) “grade” means a level of classification under a position classification system;

(4) “pay” means the rate of basic pay fixed by law or administrative action for the position held by an employee; and

(5) “furlough” means the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons.

(b) This subchapter does not apply to an employee—

(1) whose appointment is made by and with the advice and consent of the Senate;

(2) whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character by—

(A) the President for a position that the President has excepted from the competitive service;

(B) the Office of Personnel Management for a position that the Office has excepted from the competitive service; or

(3) whose appointment is made by the President;

(4) who is receiving an annuity from the Civil Service Retirement and Disability Fund, or the Foreign Service Retirement and Disability Fund, based on the service of such employee;

[(5) Repealed. Pub. L. 114–328, div. A, title V, § 512(c), Dec. 23, 2016, 130 Stat. 2112.]

(6) who is a member of the Foreign Service, as described in section 103 of the Foreign Service Act of 1980;

(7) whose position is within the Central Intelligence Agency or the Government Accountability Office;

(8) whose position is within the United States Postal Service, the Postal Regulatory Commission, the Panama Canal Commission, the Tennessee Valley Authority, the Federal Bureau of Investigation, an intelligence component of the Department of Defense (as defined in section 1614 of title 10), or an intelligence activity of a military department covered under subchapter I of chapter 83 of title 10, unless subsection (a)(1)(B) of this section or section 1005(a) of title 39 is the basis for this subchapter’s applicability;

(9) who is described in section 5102(c)(11) of this title; or

(10) who holds a position within the Veterans Health Administration which has been excluded from the competitive service by or under a provision of title 38, unless such employee was appointed to such position under section 7401(3) of such title.

(c) The Office may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office which is not otherwise covered by this subchapter.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1135; amended Pub. L. 101–376, § 2(a), Aug. 17, 1990, 104 Stat. 461; Pub. L. 102–378, § 6(a), Oct. 2, 1992, 106 Stat. 1358; Pub. L. 103–359, title V, § 501(l), Oct. 14, 1994, 108 Stat. 3430; Pub. L. 104–201, div. A, title XVI, § 1634(b), Sept. 23, 1996, 110 Stat. 2752; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 109–435, title VI, § 604(b), (f), Dec. 20, 2006, 120 Stat. 3241, 3242; Pub. L. 114–92, div. A, title XI, § 1105(c)(4), Nov. 25, 2015, 129 Stat. 1024; Pub. L. 114–328, div. A, title V, § 512(c), Dec. 23, 2016, 130 Stat. 2112; Pub. L. 117–81, div. A, title XI, § 1106(b)(2)(D), Dec. 27, 2021, 135 Stat. 1950.)

§ 7512. Actions covered

This subchapter applies to—

(1) a removal;

(2) a suspension for more than 14 days;

(3) a reduction in grade;

(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,

(C) the reduction in grade of a supervisor or 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.)

§ 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—

(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.

(c) An agency may provide, by regulation, for a 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.)

§ 7514. Regulations

The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter, except as it concerns any matter with respect to which the Merit Systems Protection Board may prescribe regulations.

(Added Pub. L. 95–454, title II, § 204(a), Oct. 13, 1978, 92 Stat. 1137.)

§ 7515. Discipline of supervisors based on retaliation against whistleblowers

(a)Definitions.—In this section—

(1) the term “agency”—

(A) has the meaning given the term in section 2302(a)(2)(C), without regard to whether any other provision of this chapter is applicable to the entity; and

(B) does not include any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003);

(2) the term “prohibited personnel action” means taking or failing to take an action in violation of paragraph (8), (9), or (14) of section 2302(b) against an employee of an agency; and

(3) the term “supervisor” means an employee who would be a supervisor, as defined in section 7103(a), if the entity employing the employee was an agency.

(b)Proposed Disciplinary Actions.—

(1)In general.—Subject to section 1214(f), if the head of the agency in which a supervisor is employed, an administrative law judge, the Merit Systems Protection Board, the Special Counsel, a judge of the United States, or the Inspector General of the agency in which a supervisor is employed has determined that the supervisor committed a prohibited personnel action, the head of the agency in which the supervisor is employed, consistent with the procedures required under paragraph (2)—

(A) for the first prohibited personnel action committed by the supervisor—

(i) shall propose suspending the supervisor for a period that is not less than 3 days; and

(ii) may propose an additional action determined appropriate by the head of the agency, including a reduction in grade or pay; and

(B) for the second prohibited personnel action committed by the supervisor, shall propose removing the supervisor.

(2)Procedures.—

(A)Notice.—A supervisor against whom an action is proposed to be taken under paragraph (1) is entitled to written notice that—

(i) states the specific reasons for the proposed action; and

(ii) informs the supervisor about the right of the supervisor to review the material that is relied on to support the reasons given in the notice for the proposed action.

(B)Answer and evidence.—

(i)In general.—A supervisor who receives notice under subparagraph (A) may, not later than 14 days after the date on which the supervisor receives the notice, submit an answer and furnish evidence in support of that answer.

(ii)No evidence furnished; insufficient evidence furnished.—If, after the end of the 14-day period described in clause (i), a supervisor does not furnish any evidence as described in that clause, or if the head of the agency in which the supervisor is employed determines that the evidence furnished by the supervisor is insufficient, the head of the agency shall carry out the action proposed under subparagraph (A) or (B) of paragraph (1), as applicable.

(C)Scope of procedures.—An action carried out under this section—

(i) except as provided in clause (ii), shall be subject to the same requirements and procedures, including those with respect to an appeal, as an action under section 7503, 7513, or 7543; and

(ii) shall not be subject to—(I) paragraphs (1) and (2) of section 7503(b);(II) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7513; and(III) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7543.

(3)Non-delegation.—If the head of an agency is responsible for determining whether a supervisor has committed a prohibited personnel action for purposes of paragraph (1), the head of the agency may not delegate that responsibility.

(Added Pub. L. 115–91, div. A, title X, § 1097(e)(1)(B), Dec. 12, 2017, 131 Stat. 1621.)