Page:United States Statutes at Large Volume 92 Part 1.djvu/1192

 92 STAT. 1138

PUBLIC LAW 95-454—OCT. 13, 1978 "SUBCHAPTER III—ADMINISTRATIVE LAW JUDGES

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"7521. Actions against administrative law judges.". APPEALS SEC. 205. Chapter 77 of title 5, United States Code, is amended to read as follows:

"CHAPTER 77--APPEALS

5 USC 7701.

Hearing. Representation.

5 USC 3105.

Copies of decisions.

Ante, p. 1133.

Ante, p. 1114.

"Sec. "7701. Appellate procedures. "7702. Actions involving discrimination. "7703. Judicial review of decisions of the Merit Systems Protection Board. "§7701. Appellate procedures " (a) A n employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the B o a r d under any law, rule, or regulation. A n appellant shall have the right— " (1) to a hearing for which a transcript will be k e p t; and " (2) to be represented by an attorney^ or other representative. Appeals shall be processed in accordance with regulations prescribed by the Board. " (b) The B o a r d may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 of this title or other employee of the Board d e s i ^ a t e d by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge. The Board, administrative law ]udge, or other employee (as the case may be) shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a) (1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Management. " (c)(1) Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency's decision— " (A) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or " (B) in any other case, is supported by a preponderance of the evidence. " (2) Notwithstanding paragraph (1), the agency's decision may not be sustained under subsection (b) of this section if the employee or applicant for employment— " (A) shows harmful error in the application of the agency's procedures in arriving at such decision; " (B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or " (C) shows that the decision was not in accordance with law. " (d)(1) I n any case in which— " (A) the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the Office of Personnel ^lanagement is at issue in any proceeding under this section; and " (B) the Director of the Office of Personnel Management is of the opinion that an erroneous decision would have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office;

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