TITLE 2 - US CODE - SUBCHAPTER IV - ADMINISTRATIVE AND JUDICIAL DISPUTE-RESOLUTION PROCEDURES

2 USC 1401 - Procedure for consideration of alleged violations

Except as otherwise provided, the procedure for consideration of alleged violations of part A of subchapter II of this chapter consists of
(1) counseling as provided in section 1402 of this title;
(2) mediation as provided in section 1403 of this title; and
(3) election, as provided in section 1404 of this title, of either
(A) a formal complaint and hearing as provided in section 1405 of this title, subject to Board review as provided in section 1406 of this title, and judicial review in the United States Court of Appeals for the Federal Circuit as provided in section 1407 of this title, or
(B) a civil action in a district court of the United States as provided in section 1408 of this title.

In the case of an employee of the Office of the Architect of the Capitol or of the Capitol Police, the Executive Director, after receiving a request for counseling under section 1402 of this title, may recommend that the employee use the grievance procedures of the Architect of the Capitol or the Capitol Police for resolution of the employees grievance for a specific period of time, which shall not count against the time available for counseling or mediation.

2 USC 1402 - Counseling

(a) In general 
To commence a proceeding, a covered employee alleging a violation of a law made applicable under part A of subchapter II of this chapter shall request counseling by the Office. The Office shall provide the employee with all relevant information with respect to the rights of the employee. A request for counseling shall be made not later than 180 days after the date of the alleged violation.
(b) Period of counseling 
The period for counseling shall be 30 days unless the employee and the Office agree to reduce the period. The period shall begin on the date the request for counseling is received.
(c) Notification of end of counseling period 
The Office shall notify the employee in writing when the counseling period has ended.

2 USC 1403 - Mediation

(a) Initiation 
Not later than 15 days after receipt by the employee of notice of the end of the counseling period under section 1402 of this title, but prior to and as a condition of making an election under section 1404 of this title, the covered employee who alleged a violation of a law shall file a request for mediation with the Office.
(b) Process 
Mediation under this section
(1) may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director after considering recommendations by organizations composed primarily of individuals experienced in adjudicating or arbitrating personnel matters, and
(2) shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office.
(c) Mediation period 
The mediation period shall be 30 days beginning on the date the request for mediation is received. The mediation period may be extended for additional periods at the joint request of the covered employee and the employing office. The Office shall notify in writing the covered employee and the employing office when the mediation period has ended.
(d) Independence of mediation process 
No individual, who is appointed by the Executive Director to mediate, may conduct or aid in a hearing conducted under section 1405 of this title with respect to the same matter or shall be subject to subpoena or any other compulsory process with respect to the same matter.

2 USC 1404 - Election of proceeding

Not later than 90 days after a covered employee receives notice of the end of the period of mediation, but no sooner than 30 days after receipt of such notification, such covered employee may either
(1) file a complaint with the Office in accordance with section 1405 of this title, or
(2) file a civil action in accordance with section 1408 of this title in the United States district court for the district in which the employee is employed or for the District of Columbia.

2 USC 1405 - Complaint and hearing

(a) In general 
A covered employee may, upon the completion of mediation under section 1403 of this title, file a complaint with the Office. The respondent to the complaint shall be the employing office
(1) involved in the violation, or
(2) in which the violation is alleged to have occurred,

and about which mediation was conducted.

(b) Dismissal 
A hearing officer may dismiss any claim that the hearing officer finds to be frivolous or that fails to state a claim upon which relief may be granted.
(c) Hearing officer 

(1) Appointment 
Upon the filing of a complaint, the Executive Director shall appoint an independent hearing officer to consider the complaint and render a decision. No Member of the House of Representatives, Senator, officer of either the House of Representatives or the Senate, head of an employing office, member of the Board, or covered employee may be appointed to be a hearing officer. The Executive Director shall select hearing officers on a rotational or random basis from the lists developed under paragraph (2). Nothing in this section shall prevent the appointment of hearing officers as full-time employees of the Office or the selection of hearing officers on the basis of specialized expertise needed for particular matters.
(2) Lists 
The Executive Director shall develop master lists, composed of
(A) members of the bar of a State or the District of Columbia and retired judges of the United States courts who are experienced in adjudicating or arbitrating the kinds of personnel and other matters for which hearings may be held under this chapter, and
(B) individuals expert in technical matters relating to accessibility and usability by persons with disabilities or technical matters relating to occupational safety and health.

In developing lists, the Executive Director shall consider candidates recommended by the Federal Mediation and Conciliation Service or the Administrative Conference of the United States.

(d) Hearing 
Unless a complaint is dismissed before a hearing, a hearing shall be
(1) conducted in closed session on the record by the hearing officer;
(2) commenced no later than 60 days after filing of the complaint under subsection (a) of this section, except that the Office may, for good cause, extend up to an additional 30 days the time for commencing a hearing; and
(3) conducted, except as specifically provided in this chapter and to the greatest extent practicable, in accordance with the principles and procedures set forth in sections 554 through 557 of title 5.
(e) Discovery 
Reasonable prehearing discovery may be permitted at the discretion of the hearing officer.
(f) Subpoenas 

(1) In general 
At the request of a party, a hearing officer may issue subpoenas for the attendance of witnesses and for the production of correspondence, books, papers, documents, and other records. The attendance of witnesses and the production of records may be required from any place within the United States. Subpoenas shall be served in the manner provided under rule 45(b) of the Federal Rules of Civil Procedure.
(2) Objections 
If a person refuses, on the basis of relevance, privilege, or other objection, to testify in response to a question or to produce records in connection with a proceeding before a hearing officer, the hearing officer shall rule on the objection. At the request of the witness or any party, the hearing officer shall (or on the hearing officers own initiative, the hearing officer may) refer the ruling to the Board for review.
(3) Enforcement 

(A) In general 
If a person fails to comply with a subpoena, the Board may authorize the General Counsel to apply, in the name of the Office, to an appropriate United States district court for an order requiring that person to appear before the hearing officer to give testimony or produce records. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey a lawful order of the district court issued pursuant to this section may be held by such court to be a civil contempt thereof.
(B) Service of process 
Process in an action or contempt proceeding pursuant to subparagraph (A) may be served in any judicial district in which the person refusing or failing to comply, or threatening to refuse or not to comply, resides, transacts business, or may be found, and subpoenas for witnesses who are required to attend such proceedings may run into any other district.
(g) Decision 
The hearing officer shall issue a written decision as expeditiously as possible, but in no case more than 90 days after the conclusion of the hearing. The written decision shall be transmitted by the Office to the parties. The decision shall state the issues raised in the complaint, describe the evidence in the record, contain findings of fact and conclusions of law, contain a determination of whether a violation has occurred, and order such remedies as are appropriate pursuant to subchapter II of this chapter. The decision shall be entered in the records of the Office. If a decision is not appealed under section 1406 of this title to the Board, the decision shall be considered the final decision of the Office.
(h) Precedents 
A hearing officer who conducts a hearing under this section shall be guided by judicial decisions under the laws made applicable by section 1302 of this title and by Board decisions under this chapter.

2 USC 1406 - Appeal to Board

(a) In general 
Any party aggrieved by the decision of a hearing officer under section 1405 (g) of this title may file a petition for review by the Board not later than 30 days after entry of the decision in the records of the Office.
(b) Parties’ opportunity to submit argument 
The parties to the hearing upon which the decision of the hearing officer was made shall have a reasonable opportunity to be heard, through written submission and, in the discretion of the Board, through oral argument.
(c) Standard of review 
The Board shall set aside a decision of a hearing officer if the Board determines that the decision was
(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
(d) Record 
In making determinations under subsection (c) of this section, the Board shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
(e) Decision 
The Board shall issue a written decision setting forth the reasons for its decision. The decision may affirm, reverse, or remand to the hearing officer for further proceedings. A decision that does not require further proceedings before a hearing officer shall be entered in the records of the Office as a final decision.

2 USC 1407 - Judicial review of Board decisions and enforcement

(a) Jurisdiction 

(1) Judicial review 
The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any proceeding commenced by a petition of
(A) a party aggrieved by a final decision of the Board under section 1406 (e) of this title in cases arising under part A of subchapter II of this chapter,
(B) a charging individual or a respondent before the Board who files a petition under section 1331 (d)(4) of this title,
(C) the General Counsel or a respondent before the Board who files a petition under section 1341 (c)(5) of this title, or
(D) the General Counsel or a respondent before the Board who files a petition under section 1351 (c)(3) of this title.

The court of appeals shall have exclusive jurisdiction to set aside, suspend (in whole or in part), to determine the validity of, or otherwise review the decision of the Board.

(2) Enforcement 
The United States Court of Appeals for the Federal Circuit shall have jurisdiction over any petition of the General Counsel, filed in the name of the Office and at the direction of the Board, to enforce a final decision under section 1405 (g) or 1406 (e) of this title with respect to a violation of part A, B, C, or D of subchapter II of this chapter.
(b) Procedures 

(1) Respondents 

(A) In any proceeding commenced by a petition filed under subsection (a)(1)(A) or (B) of this section, or filed by a party other than the General Counsel under subsection (a)(1)(C) or (D) of this section, the Office shall be named respondent and any party before the Board may be named respondent by filing a notice of election with the court within 30 days after service of the petition.
(B) In any proceeding commenced by a petition filed by the General Counsel under subsection (a)(1)(C) or (D) of this section, the prevailing party in the final decision entered under section 1406 (e) of this title shall be named respondent, and any other party before the Board may be named respondent by filing a notice of election with the court within 30 days after service of the petition.
(C) In any proceeding commenced by a petition filed under subsection (a)(2) of this section, the party under section 1405 or 1406 of this title that the General Counsel determines has failed to comply with a final decision under section 1405 (g) or 1406 (e) of this title shall be named respondent.
(2) Intervention 
Any party that participated in the proceedings before the Board under section 1406 of this title and that was not made respondent under paragraph (1) may intervene as of right.
(c) Law applicable 
Chapter 158 of title 28 shall apply to judicial review under paragraph (1) of subsection (a) of this section, except that
(1) with respect to section 2344 of title 28, service of a petition in any proceeding in which the Office is a respondent shall be on the General Counsel rather than on the Attorney General;
(2) the provisions of section 2348 of title 28, on the authority of the Attorney General, shall not apply;
(3) the petition for review shall be filed not later than 90 days after the entry in the Office of a final decision under section 1406 (e) of this title; and
(4) the Office shall be an agency as that term is used in chapter 158 of title 28.
(d) Standard of review 
To the extent necessary for decision in a proceeding commenced under subsection (a)(1) of this section and when presented, the court shall decide all relevant questions of law and interpret constitutional and statutory provisions. The court shall set aside a final decision of the Board if it is determined that the decision was
(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
(e) Record 
In making determinations under subsection (d) of this section, the court shall review the whole record, or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

2 USC 1408 - Civil action

(a) Jurisdiction 
The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation.
(b) Parties 
The defendant shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred.
(c) Jury trial 
Any party may demand a jury trial where a jury trial would be available in an action against a private defendant under the relevant law made applicable by this chapter. In any case in which a violation of section 1311 of this title is alleged, the court shall not inform the jury of the maximum amount of compensatory damages available under section 1311 (b)(1) or 1311 (b)(3) of this title.
(d) Appearances by House Employment Counsel 

(1) In general 
The House Employment Counsel of the House of Representatives and any other counsel in the Office of House Employment Counsel of the House of Representatives, including any counsel specially retained by the Office of House Employment Counsel, shall be entitled, for the purpose of providing legal assistance and representation to employing offices of the House of Representatives under this chapter, to enter an appearance in any proceeding before any court of the United States or of any State or political subdivision thereof without compliance with any requirements for admission to practice before such court, except that the authorization conferred by this paragraph shall not apply with respect to the admission of any such person to practice before the United States Supreme Court.
(2) House Employment Counsel defined 
In this subsection, the term Office of House Employment Counsel of the House of Representatives means
(A) the Office of House Employment Counsel established and operating under the authority of the Clerk of the House of Representatives as of November 12, 2001;
(B) any successor office to the Office of House Employment Counsel which is established after November 12, 2001; and
(C) any other person authorized and directed in accordance with the Rules of the House of Representatives to provide legal assistance and representation to employing offices of the House of Representatives in connection with actions brought under this subchapter.

2 USC 1409 - Judicial review of regulations

In any proceeding brought under section 1407 or 1408 of this title in which the application of a regulation issued under this chapter is at issue, the court may review the validity of the regulation in accordance with the provisions of subparagraphs (A) through (D) of section 706 (2) of title 5, except that with respect to regulations approved by a joint resolution under section 1384 (c) of this title, only the provisions of section 706 (2)(B) of title 5 shall apply. If the court determines that the regulation is invalid, the court shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provisions with respect to which the invalid regulation was issued. Except as provided in this section, the validity of regulations issued under this chapter is not subject to judicial review.

2 USC 1410 - Other judicial review prohibited

Except as expressly authorized by sections 1407, 1408, and 1409 of this title, the compliance or noncompliance with the provisions of this chapter and any action taken pursuant to this chapter shall not be subject to judicial review.

2 USC 1411 - Effect of failure to issue regulations

In any proceeding under section 1405, 1406, 1407, or 1408 of this title, except a proceeding to enforce section 1351 of this title with respect to offices listed under section 1351 (e)(2) of this title, if the Board has not issued a regulation on a matter for which this chapter requires a regulation to be issued, the hearing officer, Board, or court, as the case may be, shall apply, to the extent necessary and appropriate, the most relevant substantive executive agency regulation promulgated to implement the statutory provision at issue in the proceeding.

2 USC 1412 - Expedited review of certain appeals

(a) In general 
An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision of this chapter.
(b) Jurisdiction 
The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal referred to in subsection (a) of this section, advance the appeal on the docket, and expedite the appeal to the greatest extent possible.

2 USC 1413 - Privileges and immunities

The authorization to bring judicial proceedings under sections 1405 (f)(3), 1407, and 1408 of this title shall not constitute a waiver of sovereign immunity for any other purpose, or of the privileges of any Senator or Member of the House of Representatives under article I, section 6, clause 1, of the Constitution, or a waiver of any power of either the Senate or the House of Representatives under the Constitution, including under article I, section 5, clause 3, or under the rules of either House relating to records and information within its jurisdiction.

2 USC 1414 - Settlement of complaints

Any settlement entered into by the parties to a process described in section 1331, 1341, 1351, or 1401 of this title shall be in writing and not become effective unless it is approved by the Executive Director. Nothing in this chapter shall affect the power of the Senate and the House of Representatives, respectively, to establish rules governing the process by which a settlement may be entered into by such House or by any employing office of such House.

2 USC 1415 - Payments

(a) Awards and settlements 
Except as provided in subsection (c) of this section, only funds which are appropriated to an account of the Office in the Treasury of the United States for the payment of awards and settlements may be used for the payment of awards and settlements under this chapter. There are authorized to be appropriated for such account such sums as may be necessary to pay such awards and settlements. Funds in the account are not available for awards and settlements involving the Government Accountability Office, the Government Printing Office, or the Library of Congress.
(b) Compliance 
Except as provided in subsection (c) of this section, there are authorized to be appropriated such sums as may be necessary for administrative, personnel, and similar expenses of employing offices which are needed to comply with this chapter.
(c) OSHA, accommodation, and access requirements 
Funds to correct violations of section 1311 (a)(3), 1331, or 1341 of this title may be paid only from funds appropriated to the employing office or entity responsible for correcting such violations. There are authorized to be appropriated such sums as may be necessary for such funds.

2 USC 1416 - Confidentiality

(a) Counseling 
All counseling shall be strictly confidential, except that the Office and a covered employee may agree to notify the employing office of the allegations.
(b) Mediation 
All mediation shall be strictly confidential.
(c) Hearings and deliberations 
Except as provided in subsections (d), (e), and (f) of this section, all proceedings and deliberations of hearing officers and the Board, including any related records, shall be confidential. This subsection shall not apply to proceedings under section 1341 of this title, but shall apply to the deliberations of hearing officers and the Board under that section.
(d) Release of records for judicial action 
The records of hearing officers and the Board may be made public if required for the purpose of judicial review under section 1407 of this title.
(e) Access by committees of Congress 
At the discretion of the Executive Director, the Executive Director may provide to the Committee on Standards of Official Conduct of the House of Representatives and the Select Committee on Ethics of the Senate access to the records of the hearings and decisions of the hearing officers and the Board, including all written and oral testimony in the possession of the Office. The Executive Director shall not provide such access until the Executive Director has consulted with the individual filing the complaint at issue, and until a final decision has been entered under section 1405 (g) or 1406 (e) of this title.
(f) Final decisions 
A final decision entered under section 1405 (g) or 1406 (e) of this title shall be made public if it is in favor of the complaining covered employee, or in favor of the charging party under section 1331 of this title, or if the decision reverses a decision of a hearing officer which had been in favor of the covered employee or charging party. The Board may make public any other decision at its discretion.