2 U.S.C. § 1401 | Procedure for consideration of alleged violations

(a)

Filing and review of claims

Except as otherwise provided, the procedure for consideration of an alleged violation of part A of subchapter II consists of—

(1)

section 1402 of this title the filing of a claim by the covered employee alleging the violation, as provided in ;

(2)

section 1402a of this title the preliminary review of the claim, to be conducted by a hearing officer as provided in ;

(3)

section 1403 of this title mediation as provided in , if requested and agreed to by the parties under that section; and

(4)

section 1405 of this title section 1406 of this title section 1407 of this title a formal hearing as provided in , subject to Board review as provided in and judicial review in the United States Court of Appeals for the Federal Circuit as provided in .

(b)

Right of employee to file civil action

(1)

Civil action

section 1402 of this title section 1405(a) of this title section 1408 of this titleOnly a covered employee who has filed a claim timely as provided in and who has not submitted a request for a hearing on the claim pursuant to may, during the period described in paragraph (3), file a civil action in a District Court of the United States with respect to the violation alleged in the claim, as provided in .

(2)

Effect of filing civil action

Notwithstanding paragraph (2), (3), or (4) of subsection (a), if the covered employee files such a civil action—

(A)

section 1402a of this title the preliminary review of the claim by the hearing officer as provided in shall terminate upon the filing of the action by the covered employee; and

(B)

section 1402a of this title the procedure for consideration of the alleged violation shall not include any further review of the claim by the hearing officer as provided in .

(3)

Period for filing civil action

section 1402 of this titleThe period described in this paragraph with respect to a claim is the 70-day period which begins on the date the covered employee files the claim under .

(4)

Special rule for employees who fail to state a claim for which relief may be granted

section 1402a(d)(2) of this title section 1408 of this titleNotwithstanding paragraph (3), if a covered employee receives a written notice from the hearing officer under that the employee has the right to file a civil action with respect to the claim in accordance with , the covered employee may file the civil action not later than 90 days after receiving such written notice.

(c)

Special rule for Architect of the Capitol and Capitol Police

section 1402 of this titleIn the case of an employee of the Office of the Architect of the Capitol or of the Capitol Police, the Office, after receiving a claim filed under , may recommend that the employee use the grievance procedures of the Architect of the Capitol or the Capitol Police for resolution of the employee’s grievance for a specific period of time. Any deadline in this chapter relating to a claim for which the employee is using the grievance procedures, that has not already passed by the first day of that specific period, shall be stayed during that specific period.

(d)

Election of remedies for Library of Congress

(1)

Definitions

In this subsection:

(A)

Direct Act

The term “direct Act” means an Act (other than this Act), or provision of the Revised Statutes, that is specified in section 1311, 1312, or 1313 of this title.

(B)

Direct provision

The term “direct provision” means a provision (including a definitional provision) of a direct Act that applies the rights or protections of a direct Act (including rights and protections relating to nonretaliation or noncoercion) to a Library claimant.

(C)

Library claimant

The term “Library claimant” means, with respect to a direct provision, an employee of the Library of Congress who is covered by that direct provision.

(2)

Election after proceedings initially brought under this chapter

section 1402 of this title section 1402a(c) of this title section 1408 of this titleA Library claimant who initially files a claim for an alleged violation as provided in may, at any time before the date that is 10 days after a hearing officer submits the report on the preliminary review of the claim under , elect to bring the claim for a proceeding before the corresponding Federal agency under the corresponding direct provision, instead of continuing with the procedures applicable to the claim under this subchapter or filing a civil action in accordance with .

(3)

Election after proceedings initially brought under other civil rights or labor law

A Library claimant who initially brings a claim, complaint, or charge under a direct provision for a proceeding before a Federal agency may, prior to requesting a hearing under the agency’s procedures, elect to—

(A)

continue with the agency’s procedures and preserve the option (if any) to bring any civil action relating to the claim, complaint, or charge, that is available to the Library claimant; or

(B)

section 1402 of this title file a claim with the Office under and continue with the corresponding procedures of this title available and applicable to a covered employee.

(4)

Timing

section 1402(d) of this titleA Library claimant who meets the initial deadline under for filing a claim under this subchapter, or any initial deadline for bringing a claim, complaint, or charge under the applicable direct provision, and then elects to change to alternative procedures as described in paragraph (2) or (3)(B), shall be considered to meet any initial deadline for the alternative procedures.

(5)

Application

Public Law 115–141 section 1331 of this title section 1331 of this titleThis subsection shall take effect and shall apply as described in section 153(c) of the Legislative Branch Appropriations Act, 2018 () (except to the extent such section applies to any violation of or a provision of an Act specified in ).

(e)

Rights of parties to retain private counsel

section 1415(d)(8) of this title section 1415(d) of this titleNothing in this chapter may be construed to limit the authority of any individual (including a covered employee, the head of an employing office, or an individual who is alleged to have committed personally an act which consists of a violation of part A of subchapter II) to retain counsel to protect the interests of the individual at any point during any of the procedures provided under this title for the consideration of an alleged violation of part A of subchapter II, including as provided under with respect to individuals subject to a reimbursement requirement of .

(f)

Standards for assertions made by parties

Any party in any of the procedures provided under this subchapter, as well as any counsel or other person representing a party in any of such procedures, shall have an obligation to ensure that, to the best of the party’s knowledge, information, and belief, as formed after an inquiry which is reasonable under the circumstances, each of the following is correct:

(1)

No pleading, written motion, or other paper is presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of resolution of the matter.

(2)

The claims, defenses, and other legal contentions the party advocates are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

(3)

The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further review or discovery.

(4)

The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(g)

Procedure

section 1361(d)(2) of this titleNothing in this chapter shall be construed to supersede or limit .

Pub. L. 104–1, title IV, § 401Jan. 23, 1995109 Stat. 32 Pub. L. 115–141, div. I, title I, § 153(b)(1)Mar. 23, 2018132 Stat. 786 Pub. L. 115–397, title I, § 101(a)Dec. 21, 2018132 Stat. 5298(, , ; , , ; , , .)

Editorial Notes

References in Text

Pub. L. 104–1Jan. 23, 1995109 Stat. 7Part A of subchapter II, referred to in subsecs. (a) and (e), was in the original “part A of title II”, meaning part A (§§ 201–207) of title II of , , , which is classified principally to part A of subchapter II of this chapter. For complete classification of part A to the Code, see Tables.

Pub. L. 104–1Jan. 23, 1995109 Stat. 3 section 1301 of this titleThis chapter, referred to in subsecs. (c), (d)(1)(A), (2), (e), and (g), was in the original “this Act”, meaning , , , which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Pub. L. 115–141, div. I, title I, § 153(c)Mar. 23, 2018132 Stat. 787 section 1301 of this titleSection 153(c) of the Legislative Branch Appropriations Act, 2018, referred to in subsec. (d)(5), is , , , set out as a note under .

Amendments

Pub. L. 115–3972018— amended section generally. Prior to amendment, section related to procedure for consideration of alleged violations, consisting of three pars.

Pub. L. 115–141, § 153(b)(1)(A)section 1404 of this titlePar. (3). , struck out “either” after “, of” in introductory provisions.

Pub. L. 115–141, § 153(b)(1)(B)Par. (3)(C). –(D), added subpar. (C).

Statutory Notes and Related Subsidiaries

Effective Date of 2018 Amendment

Pub. L. 115–397Dec. 21, 2018section 401 of Pub. L. 115–397 section 1301 of this titleAmendment by effective upon expiration of the 180-day period beginning on , with provisions for effect on pending proceedings, see , set out as a note under .