Title: Merit Systems Protection Board Reauthorization Act of 2021
Policy area: Government Operations and Politics

Summary:
Merit Systems Protection Board Reauthorization Act of 2021
This bill reauthorizes the Merit Systems Protection Board through FY2026 and modifies its authority.
Specifically, the bill requires the board to establish and collect a filing fee to be paid by any individual filing a claim or appeal. The bill requires the board to make a decision in a matter after receiving the written representations of the parties and after an opportunity for a hearing, and the bill authorizes the board to grant a motion for summary judgment. With respect to an appeal from a performance or conduct-based adverse action, the bill prohibits the board from mitigating the personnel action unless it is so disproportionate as to be without justification. Further, the bill requires that all decisions of the agency be supported by substantial evidence.
In addition, the bill limits furlough appeals and provides for the reappointment of board members (currently, board members may not be reappointed).
The bill also makes the board the arbiter of appeals involving the removal, demotion, or suspension of an employee of the Department of Veterans Affairs.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1922 Introduced in House (IH)]

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117th CONGRESS
  1st Session
                                H. R. 1922

To reauthorize and modify the authority of the Merit Systems Protection 
                     Board, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 16, 2021

    Mr. Hice of Georgia (for himself, Mr. Comer, Mr. Sessions, Mr. 
 LaTurner, Mr. C. Scott Franklin of Florida, and Mr. Clyde) introduced 
 the following bill; which was referred to the Committee on Oversight 
and Reform, and in addition to the Committee on Veterans' Affairs, for 
a period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
To reauthorize and modify the authority of the Merit Systems Protection 
                     Board, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Merit Systems 
Protection Board Reauthorization Act of 2021''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Reauthorize appropriations for Merit Systems Protection Board.
Sec. 3. Filing fee for Merit Systems Protection Board claims and 
                            appeals.
Sec. 4. Modification to procedures and authority of the Merit Systems 
                            Protection Board.
Sec. 5. Limitation on furlough appeals to the Merit Systems Protection 
                            Board.
Sec. 6. Reappointment of Merit Systems Protection Board members.
Sec. 7. Amendments to Department of Veterans Affairs Accountability and 
                            Whistleblower Protection Act of 2017.

SEC. 2. REAUTHORIZE APPROPRIATIONS FOR MERIT SYSTEMS PROTECTION BOARD.

    (a) In General.--Paragraph (1) of section 8(a) of the Whistleblower 
Protection Act of 1989 (Public Law 101-12; 5 U.S.C. 5509 note) is 
amended to read as follows:
            ``(1) for each of fiscal years 2022, 2023, 2024, 2025, and 
        2026--
                    ``(A) $44,490,000 to carry out subchapter I of 
                chapter 12 of title 5, United States Code (as amended 
                by this Act); and
                    ``(B) not to exceed $2,345,000, to be transferred 
                from the Civil Service Retirement and Disability Fund 
                in amounts determined by the Merit Systems Protection 
                Board, for administrative expenses to adjudicate 
                retirement appeals; and''.
    (b) Effective Date.--This section shall take effect on October 1, 
2021.

SEC. 3. FILING FEE FOR MERIT SYSTEMS PROTECTION BOARD CLAIMS AND 
              APPEALS.

    (a) In General.--Section 1204 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(o)(1) The Board shall establish and collect a filing fee to be 
paid by any individual filing a claim or appeal with the Board under 
this title, or under any other law, rule, or regulation, consistent 
with the requirements of this subsection.
    ``(2) The filing fee established under paragraph (1) may--
            ``(A) not exceed the amount that is 50 percent of the fee 
        required for filing a civil action in a United States district 
        court;
            ``(B) be adjusted from time to time as the Board considers 
        appropriate; and
            ``(C) upon request of the individual filing the claim or 
        appeal, be waived by the Board if the Board determines the fee 
        would create undue hardship.
    ``(3) A filing fee shall not be required with respect to any 
action--
            ``(A) brought by the Special Counsel under section 1214, 
        1215, or 1216; or
            ``(B) taken against an administrative law judge under 
        section 7521.
    ``(4) A filing fee paid by an individual for an appeal or claim 
before the Board shall cover any subsequent filing by the individual 
with the Board during the litigation of that appeal or claim. Such fee 
shall be returned to the individual if the individual is the prevailing 
party.''.
    (b) Deadline.--The Merit Systems Protection Board shall establish 
and collect the filing fee required under subsection (o) of section 
1204 of title 5, United States Code, as added by subsection (a), not 
later than 1 year after the date of the enactment of this Act.
    (c) Application.--The fee required under such subsection (o) shall 
apply to any claim or appeal filed with the Merit Systems Protection 
Board after the date the fee is established pursuant to subsection (b).

SEC. 4. MODIFICATION TO PROCEDURES AND AUTHORITY OF THE MERIT SYSTEMS 
              PROTECTION BOARD.

    (a) Summary Judgment.--Section 7701 of title 5, United States Code, 
is amended--
            (1) in subsection (a)(1), by inserting ``, except as 
        provided in subsection (b)'' after ``kept''; and
            (2) in subsection (b)(1)--
                    (A) by striking ``The Board may'' and inserting 
                ``(A) The Board may'';
                    (B) by striking the second and third sentences; and
                    (C) by adding at the end the following:
    ``(B) The Board, an administrative law judge appointed by the Board 
under section 3105, and any officer or employee of the Board designated 
by the Board (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, 
except as provided under subparagraph (C).
    ``(C) The Board, an administrative law judge appointed by the Board 
under section 3105, and any officer or employee of the Board designated 
by the Board (as the case may be) may, with respect to any party, grant 
a motion for summary judgment. Any hearing under subsection (a)(1) of 
this section shall be limited to the issues remaining in the case, or, 
if applicable, a decision may be issued without holding a hearing.
    ``(D) A copy of the decision under subparagraph (B) or (C) shall be 
furnished to each party to the appeal and to the Office of Personnel 
Management.''.
    (b) Limit on Mitigation.--Paragraph (3) of section 7701(b) of title 
5, United States Code, is amended to read as follows:
    ``(3) With respect to an appeal from a performance or conduct-based 
adverse action under subchapter II or V of chapter 75, the Board may 
not mitigate the personnel action involved unless the action is so 
disproportionate as to be wholly without justification.''.
    (c) Evidentiary Burden.--Paragraph (1) of section 7701(c) of title 
5, United States Code, is amended to read as follows:
    ``(1) Subject to paragraph (2), the decision of the agency shall be 
sustained under subsection (b) only if the agency's decision is 
supported by substantial evidence.''.
    (d) Effective Date; Application.--
            (1) Effective date.--The amendments made by this section 
        shall take effect on the date that is 90 days after the date of 
        the enactment of this Act.
            (2) Application.--The amendments made by this section shall 
        apply with respect to any appeal filed under section 7701 of 
        title 5, United States Code, on or after the effective date in 
        paragraph (1).

SEC. 5. LIMITATION ON FURLOUGH APPEALS TO THE MERIT SYSTEMS PROTECTION 
              BOARD.

    (a) In General.--Section 3595a of title 5, United States Code, is 
amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) For the purposes of this section--
            ``(1) the term `furlough' means the placement of a senior 
        executive in a temporary status in which the senior executive 
        has no duties and is not paid when the placement in such status 
        is by reason of insufficient work or funds or for other 
        nondisciplinary reasons; and
            ``(2) the term `emergency furlough' has the meaning given 
        that term in section 7501(3).'';
            (2) in subsection (b), by adding after the period at the 
        end the following: ``Such regulations shall provide for 
        procedures for emergency furloughs for career appointees, 
        consistent with the procedures promulgated by the Office under 
        section 7504(b).''; and
            (3) by striking subsection (c) and inserting the following:
    ``(c) A career appointee who is furloughed in excess of 14 days is 
entitled to appeal to the Merit Systems Protection Board under section 
7701. The previous sentence shall not apply to any emergency 
furlough.''.
    (b) Application.--The amendments made by subsection (a) shall apply 
to any furlough occurring on or after the date that is 90 days after 
the date of the enactment of this Act.

SEC. 6. REAPPOINTMENT OF MERIT SYSTEMS PROTECTION BOARD MEMBERS.

    Subsection (c) of section 1202 of title 5, United States Code, is 
amended--
            (1) by striking ``may not be reappointed to any following 
        term but''; and
            (2) by inserting before the period at the end the 
        following: ``, unless the member is reappointed''.

SEC. 7. AMENDMENTS TO DEPARTMENT OF VETERANS AFFAIRS ACCOUNTABILITY AND 
              WHISTLEBLOWER PROTECTION ACT OF 2017.

    (a) In General.--Section 714 of title 38, United States Code, is 
amended--
            (1) in subsection (c)(4)(A), by striking ``, which shall 
        refer such appeal to an administrative judge pursuant to 
        section 7701(b)(1) of title 5''; and
            (2) in subsection (d)--
                    (A) by striking ``the administrative judge'' in 
                each place it appears and inserting ``the Merit Systems 
                Protection Board'';
                    (B) by striking paragraph (3);
                    (C) by redesignating paragraphs (4) through (10) as 
                paragraphs (3) through (9), respectively; and
                    (D) in paragraph (4), as redesignated by 
                subparagraph (C), by striking ``paragraph (3)'' and 
                inserting ``paragraph (1)''.
    (b) Application.--The amendments made by subsection (a) shall apply 
to any appeal made under section 714(c)(4)(A) of title 38, United 
States Code, after the date of the enactment of this Act.
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