Page 55 TITLE 3—THE PRESIDENT § 431

substantive regulations promulgated by the

Secretary of Labor to implement the statutory provisions referred to in subsections (a)

and (b)—

(A) except to the extent that the President

or designee may determine, for good cause

shown and stated together with the regulation, that a modification of such regulations

would be more effective for the implementation of the rights and protections under this

section; and

(B) except that the President or designee

may, at the discretion of the President or

designee, issue regulations to implement a

provision of section 19 of the Occupational

Safety and Health Act of 1970 that applies to

agencies or employees of the executive

branch of the Federal Government in lieu of

an analogous statutory provision referred to

in subsection (a) or (b), if the issuance of

such regulations—

(i) would be equally effective for the implementation of the rights and protections

under this section; and

(ii) would promote uniformity in the application of Federal law to employees in

the executive branch of the Federal Government.

(3) EMPLOYING OFFICE RESPONSIBLE FOR CORRECTION.—The regulations issued under paragraph (1) shall include a method of identifying,

for purposes of this section and for different

categories of violations of subsection (a), the

employing office responsible for correction of

a particular violation.

(e) EFFECTIVE DATE.—Subsections (a) through

(c) shall take effect on the earlier of—

(1) the effective date of regulations issued

under subsection (d); or

(2) October 1, 1998.

(Added Pub. L. 104–331, §2(a), Oct. 26, 1996, 110

Stat. 4062.)

REFERENCES IN TEXT

The Occupational Safety and Health Act of 1970, referred to in subsecs. (a) to (c)(4) and (d)(2)(B), is Pub. L.

91–596, Dec. 29, 1970, 84 Stat. 1590, as amended, which is

classified principally to chapter 15 (§651 et seq.) of Title

29, Labor. Sections 5, 6, 8 to 10, 13, and 19 of the Act are

classified to sections 654, 655, 657 to 659, 662, and 668, respectively, of Title 29. For complete classification of

this Act to the Code, see Short Title note set out under

section 651 of Title 29 and Tables.

EFFECTIVE DATE

Subsec. (d) of this section effective Oct. 26, 1996, see

section 471(b) of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 471 of this title.

PART D—LABOR-MANAGEMENT RELATIONS

PART REFERRED TO IN OTHER SECTIONS

This part is referred to in title 28 section 1296.

§ 431. Application of chapter 71 of title 5, relating

to Federal service labor-management relations; procedures for remedy of violations

(a) LABOR-MANAGEMENT RIGHTS.—Subject to

subsection (d), chapter 71 of title 5 shall apply to

employing offices and to covered employees and

representatives of those employees, except that

covered employees shall not have a right to reinstatement pursuant to section 7118(a)(7)(C) or

7123 of title 5.

(b) DEFINITION.—For purposes of the application under this section of chapter 71 of title 5,

the term ‘‘agency’’ as used in such chapter

means an employing office.

(c) REGULATIONS TO IMPLEMENT SECTION.—

(1) IN GENERAL.—The Federal Labor Relations Authority shall issue regulations to implement this section.

(2) AGENCY REGULATIONS.—Except as provided in subsection (d), the regulations issued

under paragraph (1) shall be the same as substantive regulations promulgated by the Authority to implement the statutory provisions

referred to in subsection (a), except—

(A) to the extent the Authority may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights

and protections under this section; or

(B) as the Authority may determine that a

modification of such regulations is necessary to avoid a conflict of interest or appearance of a conflict of interest.

(d) SPECIFIC REGULATIONS REGARDING APPLICATIONS TO CERTAIN EMPLOYING OFFICES.—

(1) REGULATIONS REQUIRED.—The Authority

shall issue regulations on the manner and the

extent to which the requirements and exemptions of chapter 71 of title 5 should apply to

covered employees who are employed in the offices listed in paragraph (2). The regulations

shall, to the greatest extent practicable, be

consistent with the provisions and purposes of

chapter 71 of title 5 and of this chapter, and

shall be the same as the substantive regulations issued by the Authority under such chapter, except—

(A) to the extent the Authority may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights

and protections under this section; and

(B) that the Authority shall exclude from

coverage under this section any covered employees who are employed in offices listed in

paragraph (2) if the Authority determines

that such exclusion is required because of—

(i) a conflict of interest or appearance of

a conflict of interest; or

(ii) the President’s or Vice President’s

constitutional responsibilities.

(2) OFFICES REFERRED TO.—The offices referred to in paragraph (1) include—

(A) the White House Office;

(B) the Executive Residence at the White

House;

(C) the Office of the Vice President;

(D) the Office of Policy Development;

(E) the Council of Economic Advisers;

(F) the National Security Council;

(G) the Office of Management and Budget;

and

(H) the Office of National Drug Control

Policy.
§ 435 TITLE 3—THE PRESIDENT Page 56

(e) EFFECTIVE DATE.—

(1) IN GENERAL.—Except as provided in paragraph (2), subsections (a) and (b) shall take effect on the earlier of—

(A) the effective date of regulations issued

under subsection (c); or

(B) October 1, 1998.

(2) CERTAIN EMPLOYING OFFICES.—Subsections (a) and (b) shall take effect, with respect to employing offices, and employees of

employing offices, referred to in subsection

(d)(2), on the earlier of—

(A) the effective date of regulations issued

under subsection (d); or

(B) October 1, 1998.

(Added Pub. L. 104–331, §2(a), Oct. 26, 1996, 110

Stat. 4064.)

EFFECTIVE DATE

Subsecs. (c) and (d) of this section effective Oct. 26,

1996, see section 471(b) of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 471 of this title.

PART E—GENERAL

§ 435. Generally applicable remedies and limitations

(a) ATTORNEY’S FEES.—If a covered employee,

with respect to any claim under this chapter, or

a qualified person with a disability, with respect

to any claim under section 421, is a prevailing

party in any proceeding under section 453(1), the

administrative agency may award attorney’s

fees, expert fees, and any other costs as would be

appropriate if awarded under section 706(k) of

the Civil Rights Act of 1964.

(b) INTEREST.—In any proceeding under section

453(1), the same interest to compensate for delay

in payment shall be made available as would be

appropriate if awarded under section 717(d) of

the Civil Rights Act of 1964.

(c) CIVIL PENALTIES AND PUNITIVE DAMAGES.—

Except as otherwise provided in this chapter, no

civil penalty or punitive damages may be awarded with respect to any claim under this chapter.

(d) EXCLUSIVE PROCEDURE.—

(1) IN GENERAL.—Except as provided in paragraph (2), no person may commence an administrative or judicial proceeding to seek a remedy for the rights and protections afforded by

this chapter except as provided in this chapter

and in sections 1296 and 1346(g) and chapter 179

of title 28.

(2) VETERANS.—A covered employee under

section 416 may also utilize any provisions of

chapter 43 of title 38 that are applicable to

that employee.

(e) SCOPE OF REMEDY.—Only a covered employee who has undertaken and completed the

procedures described in section 452 may be

granted a remedy under part A of this subchapter.

(f) CONSTRUCTION.—

(1) DEFINITIONS AND EXEMPTIONS.—Except

where inconsistent with definitions and exemptions provided in this chapter, the definitions and exemptions in the laws made applicable by this chapter shall apply under this

chapter.

(2) SIZE LIMITATIONS.—Notwithstanding paragraph (1), provisions in the laws made applicable under this chapter (other than paragraphs

(2) and (3) of section 2(a) of the Worker Adjustment and Retraining Notification Act) determining coverage based on size, whether expressed in terms of numbers of employees,

amount of business transacted, or other measure, shall not apply in determining coverage

under this chapter.

(g) POLITICAL AFFILIATION.—It shall not be a

violation of any provision of this chapter to consider, or make any employment decision based

on, the party affiliation, or political compatibility with the employing office, of an employee

who is a covered employee.

(Added Pub. L. 104–331, §2(a), Oct. 26, 1996, 110

Stat. 4066.)

REFERENCES IN TEXT

Sections 706 and 717 of the Civil Rights Act of 1964, referred to in subsecs. (a) and (b), are classified to sections 2000e–5 and 2000e–16, respectively, of Title 42, The

Public Health and Welfare.

Section 2 of the Worker Adjustment and Retraining

Notification Act, referred to in subsec. (f)(2), is classified to section 2101 of Title 29, Labor.

SUBCHAPTER III—ADMINISTRATIVE AND

JUDICIAL DISPUTE RESOLUTION PROCEDURES

§ 451. Procedure for consideration of alleged violations

The procedure for consideration of alleged violations of part A of subchapter II consists of—

(1) counseling and mediation as provided in

section 452; and

(2) election, as provided in section 453, of either—

(A) an administrative proceeding as provided in section 453(1) and judicial review as

provided in section 1296 of title 28; or

(B) a civil action in a district court of the

United States as provided in section 1346(g)

of title 28.

(Added Pub. L. 104–331, §2(a), Oct. 26, 1996, 110

Stat. 4067.)

§ 452. Counseling and mediation

(a) IN GENERAL.—The President, or the designee of the President, shall by regulation establish procedures substantially similar to those

under sections 402 and 403 of the Congressional

Accountability Act of 1995 for the counseling

and mediation of alleged violations of a law

made applicable under part A of subchapter II.

(b) EXHAUSTION REQUIREMENT.—A covered employee who has not exhausted counseling and

mediation under subsection (a) shall be ineligible to make any election under section 453 or

otherwise pursue any further form of relief

under this subchapter.

(Added Pub. L. 104–331, §2(a), Oct. 26, 1996, 110

Stat. 4067.)

REFERENCES IN TEXT

Sections 402 and 403 of the Congressional Accountability Act of 1995, referred to in subsec. (a), are classified to sections 1402 and 1403, respectively, of Title 2,

The Congress.