S2977-119

2. Timeliness of MSPB appeals Section 7701 of title 5, United States Code, is amended— by redesignating subsection (k) as subsection (l); and by inserting after subsection (j) the following: On and after the date that is 120 days after the date on which an employee or applicant for employment files an appeal under this section, other than an appeal of a case that is subject to section 7702, if the Merit Systems Protection Board has not taken an action with respect to the appeal that is subject to judicial review, the employee or applicant shall be entitled to file a civil action with respect to the personnel action that is the subject of the appeal. An employee or applicant may bring a civil action under paragraph (1) in a district court of the United States for— any judicial district in which a personnel action that is a subject of the civil action is alleged to have occurred; or the judicial district in which the employee or applicant would have been employed, but for a personnel action that is a subject of the civil action. If the respondent for a civil action under paragraph (1) is not subject to personal jurisdiction in any judicial district described in subparagraph (A), the civil action may be brought in a district court of the United States for the judicial district in which the principal office of the respondent is located. In a civil action under paragraph (1), the court— shall apply the standard of review under section 7703(c) only with respect to an order or decision of the Merit Systems Protection Board; and in making any other determination, shall apply the same standard of review that would have applied to the review of the personnel action at issue by the Merit Systems Protection Board. An appeal from an order or decision of the district court in a civil action under paragraph (1) shall, in accordance with section 1291 of title 28, be filed with the court of appeals of the United States for the judicial district in which the district court is located. If an employee or applicant for employment brings a civil action in accordance with paragraph (1) with respect to a personnel action, the Merit Systems Protection Board— shall stay the appeal relating to the personnel action upon the filing of the civil action; and if the civil action is dismissed for lack of jurisdiction, shall resume processing the appeal. Nothing in the amendments made by subsection (a) shall be construed to limit the ability of an employee or applicant for employment to obtain judicial review of an order or decision of the Merit Systems Protection Board in accordance with section 7703 of title 5, United States Code. (k)Untimely action by MSPB(1)In generalOn and after the date that is 120 days after the date on which an employee or applicant for employment files an appeal under this section, other than an appeal of a case that is subject to section 7702, if the Merit Systems Protection Board has not taken an action with respect to the appeal that is subject to judicial review, the employee or applicant shall be entitled to file a civil action with respect to the personnel action that is the subject of the appeal.(2)Filing(A)In generalAn employee or applicant may bring a civil action under paragraph (1) in a district court of the United States for—(i)any judicial district in which a personnel action that is a subject of the civil action is alleged to have occurred; or(ii)the judicial district in which the employee or applicant would have been employed, but for a personnel action that is a subject of the civil action.(B)Where principal office is locatedIf the respondent for a civil action under paragraph (1) is not subject to personal jurisdiction in any judicial district described in subparagraph (A), the civil action may be brought in a district court of the United States for the judicial district in which the principal office of the respondent is located.(3)Standards for judicial reviewIn a civil action under paragraph (1), the court—(A)shall apply the standard of review under section 7703(c) only with respect to an order or decision of the Merit Systems Protection Board; and(B)in making any other determination, shall apply the same standard of review that would have applied to the review of the personnel action at issue by the Merit Systems Protection Board.(4)Appeal of district court determinationAn appeal from an order or decision of the district court in a civil action under paragraph (1) shall, in accordance with section 1291 of title 28, be filed with the court of appeals of the United States for the judicial district in which the district court is located.(5)StayIf an employee or applicant for employment brings a civil action in accordance with paragraph (1) with respect to a personnel action, the Merit Systems Protection Board—(A)shall stay the appeal relating to the personnel action upon the filing of the civil action; and(B)if the civil action is dismissed for lack of jurisdiction, shall resume processing the appeal..