Sec. 401. Procedure for consideration of alleged violations
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/bill/118/s/5168/is/section-401·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Except as otherwise provided, the procedure for consideration of an alleged violation of subtitle A of title II consists of— the filing of a claim by the covered employee alleging the violation, as provided in section 402; the preliminary review of the claim, to be conducted by a Preliminary Hearing Officer as provided in section 403; mediation as provided in section 404, if requested and agreed to by the parties under that section; and a hearing as provided in section 405, subject to Board review as provided in section 406 and judicial review in the United States Court of Appeals for the Federal Circuit (or another circuit under section 407(a)(3)) as provided in section 407.
Only a covered employee who has timely filed a claim as provided in section 402 and who has not submitted a request for a hearing on the claim pursuant to section 405(a) may, during the period described in paragraph (3), file a civil action in a district court of the United States with respect to the violation alleged in the claim, as provided in section 408. Notwithstanding paragraph (2), (3), or
(4)of subsection (a), if the covered employee files such a civil action— the preliminary review of the claim by the Preliminary Hearing Officer as provided in section 403 shall terminate upon the filing of the action by the covered employee; and the procedure for consideration of the alleged violation shall not include any further review of the claim by the Preliminary Hearing Officer as provided in section 403. The period described in this paragraph with respect to a claim is the 70-day period which begins on the date the covered employee files the claim under section 402. Notwithstanding paragraph (3), if a covered employee receives a written notice the Preliminary Hearing Officer under section 403(d)(2) that the employee has the right to file a civil action with respect to the claim in accordance with section 408, the covered employee may file the civil action not later than 90 days after receiving such written notice. Nothing in this Act may be construed to limit the authority of any individual (including a covered employee, the head of an employing unit, or an individual who is alleged to have committed personally an act which constitutes a violation of subtitle A of title II) to retain counsel to protect the interests of the individual at any point during any of the procedures provided under this title for the consideration of an alleged violation of subtitle A of title II. Any party in any of the procedures provided under this title, as well as any counsel or other person representing a party in any such procedures, shall have an obligation to ensure that, to the best of the party’s knowledge, information, and belief, as formed after an inquiry which is reasonable under the circumstances, each of the following is correct: No pleading, written motion, or other paper is presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of resolution of the matter. The claims, defenses, and other legal contentions the party advocates are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further review or discovery. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Nothing in this Act shall be construed to supersede or limit section 204(d)(2).