---
kind: "section"
citation: "5 U.S.C. § 7702"
title: "5"
title_heading: "Government Organization and Employees"
number: "7702"
heading: "Actions involving discrimination"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/5/7702"
units:
  - "Part III — Employees"
  - "Subpart F — Labor-Management and Employee Relations"
  - "Chapter 77 — Appeals"
---

# §7702. Actions involving discrimination

- (a)
  - (1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any [employee](/usc/5/4701.md?p=a-2) or applicant for employment who—
    - (A) has been affected by an action which the [employee](/usc/5/4701.md?p=a-2) or applicant may appeal to the Merit [Systems](/usc/5/8401.md?p=29) Protection [Board](/usc/5/8401.md?p=5), and
    - (B) alleges that a basis for the action was discrimination prohibited by—
      - (i) section 717 of the Civil Rights Act of 1964 ([42 U.S.C. 2000e–16](/usc/42/2000e–16.md)),
      - (ii) section 6(d) of the Fair Labor Standards Act of 1938 ([29 U.S.C. 206(d)](/usc/29/206.md?p=d)),
      - (iii) section 501 of the Rehabilitation Act of 1973 ([29 U.S.C. 791](/usc/29/791.md)),
      - (iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ([29 U.S.C. 631](/usc/29/631.md), 633a), or
      - (v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,

    the [Board](/usc/5/8401.md?p=5) shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the [Board](/usc/5/8401.md?p=5)’s appellate procedures under [section 7701 of this title](/usc/5/7701.md) and this section.

  - (2) In any matter before an [agency](/usc/5/3132.md?p=a-1) which involves—
    - (A) any action described in paragraph (1)(A) of this subsection; and
    - (B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;

    the [agency](/usc/5/3132.md?p=a-1) shall resolve such matter within 120 days. The decision of the [agency](/usc/5/3132.md?p=a-1) in any such matter shall be a judicially reviewable action unless the [employee](/usc/5/4701.md?p=a-2) appeals the matter to the [Board](/usc/5/8401.md?p=5) under paragraph (1) of this subsection.

  - (3) Any decision of the [Board](/usc/5/8401.md?p=5) under paragraph (1) of this subsection shall be a judicially reviewable action as of—
    - (A) the date of issuance of the decision if the [employee](/usc/5/4701.md?p=a-2) or applicant does not file a petition with the Equal Employment Opportunity Commission under [subsection (b)(1)](#b-1) of this section, or
    - (B) the date the Commission determines not to consider the decision under [subsection (b)(2)](#b-2) of this section.
- (b)
  - (1) An [employee](/usc/5/4701.md?p=a-2) or applicant may, within 30 days after notice of the decision of the [Board](/usc/5/8401.md?p=5) under [subsection (a)(1)](#a-1) of this section, petition the Commission to consider the decision.
  - (2) The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue.
  - (3) If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the [Board](/usc/5/8401.md?p=5) and, on the basis of the evidentiary record before the [Board](/usc/5/8401.md?p=5), as supplemented under paragraph (4) of this subsection, either—
    - (A) concur in the decision of the [Board](/usc/5/8401.md?p=5); or
    - (B) issue in writing another decision which differs from the decision of the [Board](/usc/5/8401.md?p=5) to the extent that the Commission finds that, as a matter of law—
      - (i) the decision of the [Board](/usc/5/8401.md?p=5) constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive referred to in [subsection (a)(1)(B)](#a-1-B) of this section, or
      - (ii) the decision involving such provision is not supported by the evidence in the record as a whole.
  - (4) In considering any decision of the [Board](/usc/5/8401.md?p=5) under this subsection, the Commission may refer the case to the [Board](/usc/5/8401.md?p=5), or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers necessary to supplement the record.
  - (5)
    - (A) If the Commission concurs pursuant to paragraph (3)(A) of this subsection in the decision of the [Board](/usc/5/8401.md?p=5), the decision of the [Board](/usc/5/8401.md?p=5) shall be a judicially reviewable action.
    - (B) If the Commission issues any decision under paragraph (3)(B) of this subsection, the Commission shall immediately refer the matter to the [Board](/usc/5/8401.md?p=5).
- (c) Within 30 days after receipt by the [Board](/usc/5/8401.md?p=5) of the decision of the Commission under [subsection (b)(5)(B)](#b-5-B) of this section, the [Board](/usc/5/8401.md?p=5) shall consider the decision and—
  - (1) concur and adopt in whole the decision of the Commission; or
  - (2) to the extent that the [Board](/usc/5/8401.md?p=5) finds that, as a matter of law, (A) the Commission decision constitutes an incorrect interpretation of any provision of any civil [service](/usc/5/8401.md?p=26) law, rule, regulation or policy directive, or (B) the Commission decision involving such provision is not supported by the evidence in the record as a whole—
    - (i) reaffirm the initial decision of the [Board](/usc/5/8401.md?p=5); or
    - (ii) reaffirm the initial decision of the [Board](/usc/5/8401.md?p=5) with such revisions as it determines appropriate.

  If the [Board](/usc/5/8401.md?p=5) takes the action provided under [paragraph (1)](#c-1), the decision of the [Board](/usc/5/8401.md?p=5) shall be a judicially reviewable action.

- (d)
  - (1) If the [Board](/usc/5/8401.md?p=5) takes any action under [subsection (c)(2)](#c-2) of this section, the matter shall be immediately certified to a special [panel](/usc/5/7103.md?p=a-7) described in paragraph (6) of this subsection. Upon certification, the [Board](/usc/5/8401.md?p=5) shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special [panel](/usc/5/7103.md?p=a-7) the administrative record in the proceeding, including—
    - (A) the factual record compiled under this section,
    - (B) the decisions issued by the [Board](/usc/5/8401.md?p=5) and the Commission under this section, and
    - (C) any transcript of oral arguments made, or legal briefs filed, before the [Board](/usc/5/8401.md?p=5) or the Commission.
  - (2)
    - (A) The special [panel](/usc/5/7103.md?p=a-7) shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action.
    - (B) The special [panel](/usc/5/7103.md?p=a-7) shall give due deference to the respective expertise of the [Board](/usc/5/8401.md?p=5) and Commission in making its decision.
  - (3) The special [panel](/usc/5/7103.md?p=a-7) shall refer its decision under paragraph (2) of this subsection to the [Board](/usc/5/8401.md?p=5) and the [Board](/usc/5/8401.md?p=5) shall order any [agency](/usc/5/3132.md?p=a-1) to take any action appropriate to carry out the decision.
  - (4) The special [panel](/usc/5/7103.md?p=a-7) shall permit the [employee](/usc/5/4701.md?p=a-2) or applicant who brought the complaint and the employing [agency](/usc/5/3132.md?p=a-1) to appear before the [panel](/usc/5/7103.md?p=a-7) to present oral arguments and to present written arguments with respect to the matter.
  - (5) Upon application by the [employee](/usc/5/4701.md?p=a-2) or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the [employee](/usc/5/4701.md?p=a-2) or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any [agency](/usc/5/3132.md?p=a-1) to review on an interim basis, the action referred to in [subsection (a)(1)](#a-1) of this section.
  - (6)
    - (A) Each time the [Board](/usc/5/8401.md?p=5) takes any action under [subsection (c)(2)](#c-2) of this section, a special [panel](/usc/5/7103.md?p=a-7) shall be convened which shall consist of—
      - (i) an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special [panel](/usc/5/7103.md?p=a-7) each time it is convened;
      - (ii) one [member](/usc/5/8401.md?p=20) of the [Board](/usc/5/8401.md?p=5) designated by the Chairman of the [Board](/usc/5/8401.md?p=5) each time a [panel](/usc/5/7103.md?p=a-7) is convened; and
      - (iii) one [member](/usc/5/8401.md?p=20) of the Commission designated by the Chairman of the Commission each time a [panel](/usc/5/7103.md?p=a-7) is convened.

      The chairman of the special [panel](/usc/5/7103.md?p=a-7) may be removed by the President only for inefficiency, neglect of duty, or malfeasance in [office](/usc/5/5402.md?p=3).

    - (B) The chairman is entitled to [pay](/usc/5/7511.md?p=a-4) at a rate equal to the maximum annual rate of [basic pay](/usc/5/8401.md?p=4) payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special [panel](/usc/5/7103.md?p=a-7).
    - (C) The [Board](/usc/5/8401.md?p=5) and the Commission shall provide such administrative assistance to the special [panel](/usc/5/7103.md?p=a-7) as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance.
- (e)
  - (1) Notwithstanding any other provision of law, if at any time after—
    - (A) the 120th day following the filing of any matter described in [subsection (a)(2)](#a-2) of this section with an [agency](/usc/5/3132.md?p=a-1), there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection;
    - (B) the 120th day following the filing of an appeal with the [Board](/usc/5/8401.md?p=5) under [subsection (a)(1)](#a-1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the [employee](/usc/5/4701.md?p=a-2) under [subsection (b)(1)](#b-1) of this section); or
    - (C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under [subsection (b)(1)](#b-1) of this section, there is no final [agency](/usc/5/3132.md?p=a-1) action under subsection [(b)](#b), [(c)](#c), or [(d)](#d) of this section;

    an [employee](/usc/5/4701.md?p=a-2) shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 ([42 U.S.C. 2000e–16(c)](/usc/42/2000e–16.md?p=c)), section 15(c) of the Age Discrimination in Employment Act of 1967 ([29 U.S.C. 633a(c)](/usc/29/633a.md?p=c)), or section 16(b) of the Fair Labor Standards Act of 1938 ([29 U.S.C. 216(b)](/usc/29/216.md?p=b)).

  - (2) If, at any time after the 120th day following the filing of any matter described in [subsection (a)(2)](#a-2) of this section with an [agency](/usc/5/3132.md?p=a-1), there is no judicially reviewable action, the [employee](/usc/5/4701.md?p=a-2) may appeal the matter to the [Board](/usc/5/8401.md?p=5) under [subsection (a)(1)](#a-1) of this section.
  - (3) Nothing in this section shall be construed to affect the right to trial de novo under any provision of law described in [subsection (a)(1)](#a-1) of this section after a judicially reviewable action, including the decision of an [agency](/usc/5/3132.md?p=a-1) under [subsection (a)(2)](#a-2) of this section.
- (f) In any case in which an [employee](/usc/5/4701.md?p=a-2) is required to file any action, appeal, or petition under this section and the [employee](/usc/5/4701.md?p=a-2) timely files the action, appeal, or petition with an [agency](/usc/5/3132.md?p=a-1) other than the [agency](/usc/5/3132.md?p=a-1) with which the action, appeal, or petition is to be filed, the [employee](/usc/5/4701.md?p=a-2) shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper [agency](/usc/5/3132.md?p=a-1).

## Source credit

(Added Pub. L. 95–454, title II, § 205, Oct. 13, 1978, 92 Stat. 1140; amended Pub. L. 96–54, § 2(a)(46), Aug. 14, 1979, 93 Stat. 384.)

## Notes

### Editorial Notes

### References in Text

The General Schedule, referred to in subsec. (d)(6)(B), is set out under section 5332 of this title.

### Amendments

1979—Subsec. (a)(1)(A). Pub. L. 96–54, § 2(a)(46)(A), substituted “affected” for “effected”.

Subsec. (a)(1)(B)(i). Pub. L. 96–54, § 2(a)(46)(B), substituted “2000e–16” for “2000e–16c”.

Subsec. (e)(1). Pub. L. 96–54, § 2(a)(46)(C), (D), substituted “of this section” for “of this title” in subpar. (C), and “216(b)” for “216(d)” in provision following subpar. (C).

### Statutory Notes and Related Subsidiaries

### Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

### Effective Date

Section effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as an Effective Date of 1978 Amendment note under section 1101 of this title.