PUBLIC LAW 108–136—NOV. 24, 2003
117 STAT. 1627
and precedents are inconsistent with legal standards established under this subsection. ‘‘(4) An employee who— ‘‘(A) is removed, suspended for more than 14 days, furloughed for 30 days or less, reduced in pay, or reduced in pay band (or comparable reduction) by a final decision under the appeals process established under paragraph (1); ‘‘(B) is not serving under probationary period as defined under regulations established under paragraph (2); and ‘‘(C) would otherwise be eligible to appeal a performancebased or adverse action under chapter 43 or 75, as applicable, to the Merit Systems Protection Board, shall have the right to petition the full Merit Systems Protection Board for review of the record of that decision pursuant to regulations established under paragraph (2). The Board may dismiss any petition that, in the view of the Board, does not raise substantial questions of fact or law. No personnel action shall be stayed and no interim relief shall be granted during the pendency of the Board’s review unless specifically ordered by the Board. ‘‘(5) The Board may order such corrective action as the Board considers appropriate only if the Board determines that the decision was— ‘‘(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ‘‘(B) obtained without procedures required by law, rule, or regulation having been followed; or ‘‘(C) unsupported by substantial evidence. ‘‘(6) An employee who is adversely affected by a final order or decision of the Board may obtain judicial review of the order or decision as provided in section 7703. The Secretary of Defense, after notifying the Director, may obtain judicial review of any final order or decision of the Board under the same terms and conditions as provided an employee. ‘‘(7) Nothing in this subsection shall be construed to authorize the waiver of any provision of law, including an appeals provision providing a right or remedy under section 2302(b) (1), (8) or (9), that is not otherwise waivable under subsection (a). ‘‘(8) The right of an employee to petition the Merit Systems Protection Board of the Department’s final decision on an action covered by paragraph (4) of this subsection, and the right of the Merit Systems Protection Board to review such action or to order corrective action pursuant to paragraph (5), is provisional for 7 years after the date of the enactment of this chapter, and shall become permanent unless Congress acts to revise such provisions. ‘‘(i) PROVISIONS RELATED TO SEPARATION AND RETIREMENT INCENTIVES.—(1) The Secretary may establish a program within the Department of Defense under which employees may be eligible for early retirement, offered separation incentive pay to separate from service voluntarily, or both. This authority may be used to reduce the number of personnel employed by the Department of Defense or to restructure the workforce to meet mission objectives without reducing the overall number of personnel. This authority is in addition to, and notwithstanding, any other authorities established by law or regulation for such programs. ‘‘(2)(A) The Secretary may not authorize the payment of voluntary separation incentive pay under paragraph (1) to more than 25,000 employees in any fiscal year, except that employees who
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