Statute: 5 U.S.C. 3393(g), 3592, and 7541-7543

Regulations: 5 CFR Part 359 and Part 752

Procedural protections and placement or other rights to which an SES member is entitled are determined by law and regulation. They depend on the nature of the action being taken, the type of SES appointment held by the member and, at times, by the member’s appointment status just before entry into the SES.

General Information

Discipline vs. unacceptable performance. An agency may find it difficult at times to distinguish between unacceptable performance and misconduct, neglect of duty, or malfeasance. Each may result in the appointee’s failure to carry out significant duties and responsibilities of the position. Unacceptable performance results when the employee cannot perform acceptably in their job because they lack the skill, specific knowledge, or the ability to meet the performance standard of an element or elements in their performance plan. Misconduct, neglect of duty, and malfeasance, on the other hand, denote a wrongful act on the part of the employee. Corrective action of Senior Executive Service employees does not require a finding of intent.

An employee’s actions or inaction related to job performance may or may not constitute misconduct, neglect of duty, or malfeasance. When they do not, 5 U.S.C. 3592 (performance removal) applies. When they do, 5 U.S.C. 7543 applies. When elements of both exist, an agency has discretion to proceed under the statute the agency determines will best fit the circumstance and yield the more appropriate result.

Off-duty conduct. If an agency wishes to take disciplinary action based on the appointee’s off-duty actions or misconduct, it must demonstrate a nexus between the off- duty actions and the appointee’s ability to carry out the assigned responsibilities of the position to which assigned (5 U.S.C. 2302(b)(10)). Where the circumstance meets the standard of action at 5 CFR 752.603, 5 CFR 752.604 supports taking into account off-duty actions involving criminal conduct that implicate legitimate Government interests in making certain determinations.

Prohibited Actions

Agencies should refer to 5 U.S.C. 2301 (merit system principles) and 5 U.S.C. 2302 (prohibited personnel practices) for information on practices that cannot be used as a basis for taking actions covered in this chapter.

Under 5 U.S.C. 3392(d), the removal of an individual from any SES position in an independent regulatory commission “shall not be subject, directly or indirectly, to review or approval by any officer or entity within the Executive Office of the President.”

Under 5 U.S.C. 3393(g), a career appointee may not be removed from the SES or the civil service except in accordance with specifically cited provisions in Title 5, U.S.C. If a career appointee volunteers to take a position outside the SES, the voluntary nature of the action should be agreed to in writing before the action is effected, and the agreement should be retained as a permanent record in the Official Personnel Folder.

120-Day Moratorium on Certain Removals

The law [5 U.S.C. 3592(b)(1)] prohibits involuntary removals of career appointees during the probationary period or for performance reasons after completion of the probationary period:

• within 120 days after an appointment of the head of the agency; or
• within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who is a noncareer appointee and has the authority to remove the career appointee.  Time spent “acting” in the supervisory position does not count toward the 120-day time period.

The purpose of the moratorium is to prevent peremptory actions during transition periods when the agency head or noncareer supervisor does not have adequate knowledge of an SES career appointee. For more details on removals during the probationary period, see the next section. For more details on post-probationary removals during the 120-day moratorium, see section on removal of post-probationers.

Definitions and interpretations. See Moratorium on Involuntary Reassignments in Chapter 3.

Waiver. An appointee may voluntarily waive application of the 120-day moratorium to a specific removal action. The waiver must be in writing and be retained as a temporary record in the Official Personnel File.

Effect on advance notice. Any advance notice requirements for a removal action may run concurrently with the 120-day moratorium, but the removal normally may not be effected until the moratorium has ended.

Appeals

Merit System Protection Board (MSPB) requirements on what a decision notice regarding matters appealable to the Board should include and the procedures for filing an appeal are found at 5 CFR 1201.21-.24.

Removal During the Probationary Period

Statute: 5 U.S.C. 3592

Regulations: 5 CFR Part 359, Subpart D

An individual who receives an SES career appointment must serve a one-year probationary period as established by 5 U.S.C. 3393. Under 5 CFR 317.503, the probationary period is defined as a full calendar year, which must include credit for time in accordance with all provisions of that section. If an agency action cannot be effected before the probationary period ends (see below), the agency may only proceed under rules that apply to non-probationary career SES appointees. [See Chapter 2 for guidance on the probationary period.]

A career appointee may be removed from the SES during the probationary period for a variety of reasons, such as unacceptable performance, misconduct, conditions arising before appointment, and reduction in force. The procedural protections and placement rights to which the probationer is entitled are determined by the basis for the removal action and the individual’s appointment status just before entering the SES.

Timing. The SES probationary period is considered to end when the individual completes his/her last scheduled tour of duty before the anniversary date of the appointment. After this, the individual is considered a non-probationary career appointee even if the anniversary date has not yet occurred. For example, when the last workday is a Friday and the 1-year anniversary date is the following Monday, any probationary separation would have to take place before the end of the tour of duty on Friday. For reference, see decision by MSPB Chief Administrative Law Judge in the case of Walton D. Morris, Jr. v. Department of Interior (HQ35928610024, February 4, 1987), which was later affirmed by a U.S. District Court Order in Walton D. Morris, Jr. v. Department of Interior, et al, Civil Action 88-2063, August 9, 1993. Also, see Hardy v. MSPB (1994) 13 F.3d 1571. An agency must also provide written notice to the employee before the effective date of a probationary removal for performance, conduct or reduction in force (5 CFR part 359, subpart D). If the removal action takes effect on the individual’s last workday, the removal notice must specify a time prior to the end of the individual’s tour of duty. Otherwise, removal on the date would be presumed to be effective at the end of the day, which would normally be after the individual has completed the tour of duty and, consequently, the probationary period.

Reemployed annuitants. A career appointee who is a reemployed annuitant serves at the pleasure of the appointing authority, except when he or she is not receiving an annuity from the Civil Service Retirement and Disability Fund. As used in this chapter hereafter, the term “reemployed annuitant” refers solely to an annuitant who is reemployed and continues to receive an annuity from the Civil Service Retirement and Disability Fund, consistent with definition of the same term in 5 CFR 210.102. Removal of a reemployed annuitant (so defined) who is serving a probationary period is effected under 5 CFR part 359, subpart I, because he or she serves at the pleasure of the appointing authority. In general, an annuitant who is reemployed but not receiving an annuity will not be described as a reemployed annuitant in this chapter. Such individuals who are career SES appointees are generally subject to procedures applicable to a probationer if serving a probationary period, or to procedures applicable to a post probationer, if not serving a probationary period.

Removal of Probationers for Unacceptable Performance

Agencies use the probationary period to observe and evaluate the appointee’s performance of assigned duties and responsibilities. If an agency finds that the probationer’s managerial or professional/technical performance is unacceptable, the agency should consider whether remedial action (such as specialized training or assignment to other SES duties) or removal action is appropriate. Removal for unacceptable performance during the probationary period is effected under 5 CFR 359.401-.407. The removal of a probationer for unacceptable performance need not be predicated on a formal Unsatisfactory rating under the performance appraisal system established under 5 U.S.C. 4312-14 and 5 CFR part 430, subpart C. However, if the agency has given a probationer a formal Unsatisfactory (or Minimally Satisfactory) rating of record, it can use that rating as the basis for the removal action.

Even though one Minimally Satisfactory rating is not the basis for removal of an individual who has completed the probationary period, it does not prevent the removal of a probationer on the basis of the rating. Further, even if an individual receives a formal Fully Successful or higher rating of record during the probationary period, it does not prevent the removal of the individual later in the probationary period if the individual’s performance has become unacceptable. A new formal rating is not necessary (5 CFR 359.402(b)).

Notice. The agency must give the probationer a written notice at least one day before the effective date of the removal. However, the agency may want to consider a longer notice period. In accordance with 5 CFR 359.402(c), the notice must—

• state the agency’s conclusions as to the inadequacies of the probationer’s performance;
• state whether the probationer has placement rights to another position outside the SES and, if so, identify the position to which the individual will be assigned; and
• show the effective date of the action.

Guaranteed Placement. Guaranteed placement at GS-15 or above (e.g., Senior-level) upon removal from the SES is limited to those probationers who, at the time of appointment to the SES held a career or career-conditional appointment, or an appointment of equivalent tenure as defined in 5 CFR 359.701(a). Probationers who are not entitled to guaranteed placement are separated from the Federal service.

120-Day Moratorium. The removal of a probationer for performance reasons is subject to the 120-day moratorium described at the beginning of this section. However, it should be noted that:

• there is an exception to the moratorium if the removal is based on a formal Unsatisfactory performance rating given before the appointment of the new agency head or noncareer supervisor which initiated the moratorium; and
• the moratorium does not extend the probationary period. Thus, it is possible for a probationer against whom an agency is contemplating removal action to complete the probationary period during a moratorium. In such case, a subsequent removal action for performance could not be processed as a probationary removal under 5 CFR 359.401-.407, but would be taken under 5 CFR 359.501-.504.

Appeal. The removal of a probationer for performance reasons is not appealable to the Merit Systems Protection Board and does not entitle the employee to an informal hearing before the Board. McNair v. EEOC (2011) 116 MSPR 315; 5 CFR 1201.143(a), 5 CFR 359.407(a).

Removal of Probationers for Disciplinary Reasons

This section pertains only to probationary career SES appointees for whom disciplinary action may be taken under 5 U.S.C. 3592(a)(1) and 5 CFR 359.403 for conduct or 5 CFR 359.404 for conditions arising before appointment. Procedures in this section do not apply to a career SES probationer who held a civil service position in which he or she was covered by 5 U.S.C. 7511 immediately before SES appointment. Under 5 U.S.C. 7541, such probationers are covered by the adverse action procedures described later in this chapter that apply to non-probationary career appointees; however, they are covered by 5 U.S.C. 3592(a)(1) and 5 CFR 359 subpart D for other removal actions. Since 5 U.S.C. 3392(b) requires most SES positions to be filled from within the civil service, disciplinary procedures herein described apply to a minority of probationers.

Basis for action. Under the CSRA, a removal under 5 U.S.C. 7543 had to meet the standard of “for such cause as would promote the efficiency of the service,” which pertains to removals under 5 U.S.C. 7511. Subsequent legislation substituted for that standard of action “misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.” Although 5 U.S.C. 3592(a)(1) was not changed, OPM provided in 5 CFR 359.403 that removal of probationers covered by that section should meet the standard applicable to other career SES appointees.

Off-duty actions or misconduct could support removal under 5 CFR part 359 provided there is a nexus between the off-duty actions and the probationer’s ability to discharge the responsibilities of the position.

Notice. Notice requirements for effecting the removal of a probationer under CFR part 359, Subpart D, for disciplinary reasons are similar to those governing removals for performance reasons. The agency must give the probationer a written notice at least 1 day before the effective date of the action. (To the extent that circumstances warrant and permit, it is recommended that the notice be given to the probationer at an earlier date.) The notice must indicate the basis for the removal action (e.g., misconduct, neglect of duty, or malfeasance), and show the effective date of the removal. These procedures are modified when a moratorium exists and the agency invokes a specific exception, as discussed below.

120-day Moratorium. The removal of a probationer under 5 CFR 359.403-.404 for disciplinary reasons is subject to the 120-day moratorium described at the beginning of this chapter, with the following exceptions:

• the disciplinary action was initiated before the appointment of the agency head or SES noncareer supervisor (i.e., before the appointment which initiated the moratorium); or
• there is reasonable cause to believe that the probationer committed a crime punishable by a prison sentence, or that retention of the probationer may pose a threat to the appointee or others; may result in loss of or damage to Government property; or may otherwise jeopardize legitimate Government interests. Refer to 5 CFR 731.202 and 5 U.S.C. 2302(b)(10). When this exception is invoked, the following additional procedural requirements must be met:
  1. the agency’s notice shall include the reasons for invoking the exception;
  2. the probationer shall be given a reasonable time (not less than seven days) to respond regarding the propriety of the exception;
  3. the agency shall give the probationer a notice of decision on the propriety of using the exception at or before the time the action will be effective; and
  4. when circumstances require immediate action, the agency may place the probationer in a nonduty status with pay for such time as necessary to effect the removal.

Imposing a moratorium does not extend the probationary period. Thus, it is possible for a probationer against whom an agency is contemplating disciplinary action to complete the probationary period during a moratorium. In such case, a subsequent disciplinary removal action could not be processed under 5 CFR 359.403-.404, but would have to be taken under 5 CFR 752.601-606 (Adverse Actions).

Guaranteed Placement. A probationer removed for disciplinary reasons is not entitled to placement in a position outside the SES.

Appeal. The removal of a probationer for disciplinary reasons under 5 CFR 359.403-.404, is not appealable to the Merit Systems Protection Board.

Removal of Probationers for Conditions Arising Before Appointment

An agency may separate a probationer for conditions arising before appointment to the SES when those conditions have a bearing on the probationer’s fitness or qualifications for continued employment in the SES. Cases of this type should occur infrequently. Generally, they would involve an appointee from outside the Federal service, and the derogatory information would become known as a result of a post-appointment background review. In such cases, a removal for pre-appointment conditions would be effected under 5 CFR 359.404.

However, in the event that the probationer had coverage under 5 U.S.C. 7511 immediately before entering the SES, the removal would be affected under 5 CFR 752.601-.606.

Procedures. The procedural requirements governing the removal of a probationer for pre-appointment conditions differ significantly from those governing removal for performance or misconduct. Pursuant to 5 CFR 359.404, when the removal is based, in whole or in part, on conditions arising before appointment to the SES, the probationer is afforded an opportunity to answer or refute the derogatory information bearing on fitness or qualifications for continued employment. The probationer is entitled to the following:

• an advance written notice stating the specific reasons for the proposed removal;
• a reasonable time to respond;
• the right to reply orally or in writing, to furnish documentary evidence in support of the answer, and to be represented by an attorney or other representative; and
• a written decision which shows the reasons for the action and the effective date and which is delivered at or before the time the action will be made effective.

As discussed below, these procedures are modified when a moratorium exists and the agency invokes a specific exception.

120-day moratorium. The removal of a probationer for pre-appointment conditions is subject to the 120-day moratorium described at the beginning of this chapter. The moratorium may be waived under the same conditions previously described in this section.

Thus, it is possible for a probationer against whom an agency is contemplating removal for conditions arising before appointment to complete the probationary period during a moratorium. In such a case a subsequent disciplinary removal action could not be processed under 5 CFR 359.404, but would have to be taken under 5 CFR 752.601-606 (Adverse Actions).

Guaranteed placement. A probationer removed for pre-appointment conditions is not entitled to placement in a position outside the SES.

Appeal. The removal of a probationer for pre-appointment conditions under 5 CFR 359.404, is not appealable to the Merit Systems Protection Board.

Removal of a Probationer Under a Reduction in Force (RIF)

The provisions on competition for job retention in a RIF apply to all SES career appointees, probationers and post-probationers alike. All requirements for conducting a competition for job retention in a RIF situation are covered in Chapter 9.

Placement rights. A probationer who is affected by a RIF has no statutory or regulatory placement rights within the SES. However, an agency may on its own place the probationer in a vacant SES position for which qualified, if there is no post-probationer affected by the RIF who is entitled to the position.

If the probationer is not placed in another SES position, removal from the SES is effected under 5 CFR 359.405, except that removal of a reemployed annuitant is effected under 5 CFR 359.901-.902.

Notice. The agency must give the probationer a written notice before the effective date of the removal showing—

• the action to be taken and its effective date;
• the reason for the action;
• the nature of the competition for job retention including the probationer’s competitive area (if the competitive area is not agencywide) and competitive standing;
• a statement on whether the probationer has placement rights to another position outside the SES and, if so, the position to which he or she will be assigned;
• the probationer’s eligibility for discontinued service retirement, if the applicable age and/or service requirements are met [Chapter 11];
• the place where the probationer may inspect the regulations and records pertinent to the action; and
• the probationer’s right of appeal to the Merit Systems Protection Board (MSPB) on the competitive procedures used for determining job retention, the time limit for making an appeal, and the MSPB office to which the appeal should be sent.

120-day moratorium. The removal of a probationer from the SES by RIF is not subject to the moratorium.

Guaranteed placement. The probationer’s placement rights outside the SES, if any, are governed by 5 CFR 359.701-.705. Guaranteed placement upon removal from the SES by RIF is limited to those probationers who, at the time of appointment to the SES, held a career or career-conditional appointment, or an appointment of equivalent tenure as defined in 5 CFR 359.701(a). [See Chapter 10 on placement provisions.] Probationers who are not entitled to a guaranteed placement are separated from the Federal service.

Removal of Post-Probationers for Performance Reasons

Statute: 5 U.S.C. 3592

Regulations: 5 CFR Part 359, Subpart E

This section covers the removal of a post-probationer from the SES for less-than-fully-successful executive performance under 5 CFR part 359.501-.504. The term “post-probationer” refers to an SES career appointee who completed the SES probationary period or was not required to serve a probationary period.

A career appointee who is a reemployed annuitant serves at the pleasure of the appointing authority. The removal of a reemployed annuitant is effected under 5 CFR part 359.901-.902. Actions taken under that subpart are discussed later in this chapter.

For those situations that involve both performance and conduct factors, see Removal and Suspension for Disciplinary Reasons, for guidance on whether to effect a removal under performance or adverse action procedures.

Performance Appraisal

Each agency is required to have an SES performance appraisal system. One of the purposes of an appraisal system is to provide a basis for determining that an individual’s performance either merits retention in the SES or warrants some remedial action, including the individual’s removal from the SES. [See Chapter 4 for performance appraisal systems.]

The removal of a career appointee from the SES under 5 CFR 359.501-.504 must be based on the appointee’s final SES rating (or ratings) of record assigned by the appointing authority following recommendation of a Performance Review Board.

An agency may terminate a performance appraisal period before its completion when it finds there is adequate basis on which to appraise and rate the executive [5 U.S.C. 4314(b)(l)(D)].

This means that an agency need not retain an Unsatisfactory performer in a position until the end of the SES rating cycle, although the executive must be given a reasonable opportunity to demonstrate competence in a position before being appraised. At the least, the minimum appraisal period must be met and the agency must complete the full rating process, including action by a Performance Review Board, and final rating by the appointing authority.

If an executive receives an Unsatisfactory rating and is retained in the SES in another position, or if the executive receives a Minimally Satisfactory rating, the agency is required under

5 CFR 430.307 to provide the executive with advice and assistance, to improve his/her performance before the next annual summary rating is given.

Optional Removal: One Unsatisfactory Rating

An appointee who receives a final rating of “Unsatisfactory” cannot remain in the same position [5 U.S.C. 4314(b)(3)]. The agency must either place the appointee in a position outside the SES, or in another position in the SES for which the appointee is qualified. This may be done by reassignment within the agency, or with the appointee’s approval, by transfer to another agency. Placement in another SES position, rather than removal from the SES, would be appropriate when the individual is capable of performing at the SES level, but was not suited for the original SES position. However, should the agency choose to take a reassignment action, it cannot subsequently remove the individual from the SES solely on the basis of this one Unsatisfactory rating. The individual must receive another Unsatisfactory rating, or a Minimally Satisfactory rating, as described in the next paragraph.

Mandatory Removal: Two Less-Than-Fully-Successful Ratings

Under 5 U.S.C. 4314(b)(3) and (4), an agency must remove a career appointee from the SES when the appointee receives the following final ratings of record under an SES performance appraisal system:

• two ratings of “Unsatisfactory” within five consecutive years;
• two ratings of “Minimally Satisfactory” within three consecutive years; or
• one rating of “Unsatisfactory” and one rating of “Minimally Satisfactory” within three consecutive years.

The final ratings of record used to support the removal action may have been assigned under two different SES performance appraisal systems, or by two different agencies. Further, both ratings may be based on a shortened appraisal period when issued in accordance with the Performance Appraisal section above.

Procedures

In accordance with 5 CFR 359.502, the agency must give the career appointee a written notice at least 30 calendar days before the effective date of removal from the SES. The notice must include the following information:

• the reason for the removal, i.e., the annual summary rating(s) and date(s) when given that the agency is using to support the removal action;
• the appointee’s right to be placed in a position outside the SES (If the agency makes a decision regarding the specific position to which the appointee will be assigned, this information should be included in the advance notice. As an alternative, the agency may advise the appointee of the new position in a supplementary notice issued at least 10 calendar days before the effective date of the action);
• the appointee’s right to request an informal hearing before an official designated by MSPB. (Advise the appointee that the request should be made to the Headquarters Office of the MSPB at least 15 days before the effective date of the action);
• the effective date of the removal; and
• when applicable, the appointee’s eligibility for discontinued service retirement under 5 U.S.C. 8336(h) for CSRS or 5 U.S.C. 8414(a) for FERS.

120-Day Moratorium

The removal of a career appointee for performance reasons is subject to the 120-day moratorium, except for a removal based on an Unsatisfactory rating given before the appointment of the new agency head or noncareer supervisor that initiated the moratorium. This exception covers—

• an optional removal based on one Unsatisfactory rating;
• a mandatory removal based on two Unsatisfactory ratings in five years; and
• a mandatory removal based on two less than Fully Successful ratings in three years when the second rating is an Unsatisfactory rating.

For additional information on the moratorium, see Career Reassignments in Chapter 3.

Placement

A post-probationer removed for performance reasons is entitled to placement in a position outside the SES (See Chapter 10 for placement provisions). Note also that an SES appointee removed for performance reasons is not eligible for reinstatement in the SES (See guidance on reinstatement in Chapter 3).

Informal MSPB Hearing

A removal for performance is not appealable to MSPB under 5 U.S.C. 7701. However, under 5 U.S.C. 3592(a)(2), a career appointee may request (and MSPB shall grant) an informal hearing before an official designated by MSPB.

Under MSPB regulations [5 CFR 1201.143-.145], the appointee and/or a representative may appear and present arguments. A transcript is made of the hearing. The MSPB lacks jurisdiction to hear appeals regarding dismissal from the SES based on performance and to modify or order modification of performance evaluations. Charrow v. Federal Retirement Thrift Investment Board (June 21, 2006) 102 M.S.P.R. 345.

The MSPB normally refers a copy of the record and any recommendations resulting from an informal hearing to the Special Counsel, as well as to OPM and the employing agency, for whatever action may be appropriate. Conducting an informal hearing does not delay the effective date of removal.

Removal and Suspension for Disciplinary Reasons (Adverse Actions)

Statute: 5 U.S.C. 7541-7543

Regulations: 5 CFR Part 752, Subpart F

This section deals with adverse actions resulting in the removal from the Federal service or suspension of SES career appointees and certain limited appointees for disciplinary reasons.

Coverage

Career appointees who have completed the SES probationary period or were not required to serve one.

Career appointees who are serving an SES probationary period if they were covered under 5 U.S.C. 7511 immediately before entering the SES. Essentially, 5 U.S.C. 7511 covers employees in the competitive service who are not serving a probationary period, preference eligible employees in the excepted service who have completed one year of current continuous service in an executive agency, and certain other employees in the excepted service who are not preference eligible.

Limited emergency and limited term appointees who were covered by 5 U.S.C. 7511 immediately before entering the SES and who received their limited appointment in the same agency.

A career appointee who is a reemployed annuitant serves at the pleasure of the appointing authority. Removal of a reemployed annuitant is effected under 5 CFR 359.901-.902. Actions taken under this subpart are discussed later in this chapter.

Standard for Action

Adverse actions in the SES cover only two actions: removal and suspension for more than 14 days. Moreover, the standard for action in accordance with 5 U.S.C. 7543 is “misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.”

Removal. “Removal” means separation from Federal service initiated by the employing agency, OPM, or MSPB.

Suspension. “Suspension” means more than 14 days. The law is silent on short-term suspensions, i.e., a suspension of 14 days or less. Since there is no statutory authority for such action, agencies may not take a suspension of 14 days or less against an SES member. However, this does not restrict the agency from issuing a reprimand or admonishment for offenses which do not warrant a suspension.

Disciplinary reasons. A disciplinary reason is defined as misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. [Note, however, that 5 U.S.C. 8336(d) provides that separation for failure to accept a directed reassignment or a transfer of function outside of the commuting area shall not be considered a removal for cause on charges of misconduct or delinquency for purposes of determining eligibility for discontinued service retirement.]

Procedures

Procedural requirements for taking an adverse action against an appointee are in 5 CFR 752.601-.606.

Notice. The agency must give the appointee at least 30 days advance written notice that includes this information:

• the nature of the proposed action—if a proposed suspension, give the duration;
• the specific reasons for the proposed action—identify and/or describe the instances of misconduct, neglect of duty, or malfeasance, or the reassignment or transfer of function the appointee declined;
• the appointee’s right to review the material the agency is using to support the charges;
• the appointee’s right to reply orally and in writing and to furnish affidavits and other documentary evidence (e.g. medical documentation)—identify the agency official authorized to hear the oral reply and advise the appointee of the time limit for making an oral and/or written reply;
• if agency regulations provide for one, the appointee’s right to a hearing in place of or in addition to the opportunity for written and oral reply; and [See 5 U.S.C. 7543(c)]
• the appointee’s right to be represented by an attorney or other representative.

Exception to the 30-day notice period. The 30-day advance notice period may be curtailed only if the agency has reasonable cause to believe that the appointee committed a crime for which a sentence of imprisonment may be imposed and is proposing a removal or suspension. Refer to 5 CFR 752.604(d). Per 5 U.S.C. 7543(b), the SES employee is entitled to a reasonable time, but not less than seven days to answer orally and in writing and to furnish affidavits and other documentary evidence in support of his answer to the action. The employee is also entitled to be represented by an attorney or other representative and to have a written decision and specific reasons therefor at the earliest practicable date.

Other considerations. If the agency does not have reasonable cause to believe that the appointee committed a crime for which an imprisonment may be imposed, the appointee has a right to the 30-day notice period. Even so, there may be circumstances where keeping the appointee in his/her present position may pose a threat to the appointee or others, result in loss or damage to Government property, or otherwise jeopardize legitimate Government interests. In such cases, an agency may act to reduce or remove the threat during the notice period. Such actions could include:

• assigning the appointee to duties where he or she is no longer a threat;
• placing the appointee on leave with his/her consent; and
• carrying the appointee in an appropriate leave status (i.e., annual, sick, leave without pay, absent without leave) if the appointee is voluntarily absent for reasons not originating with the agency.

If these options are not available, the agency could place the appointee in a paid, nonduty status during all or part of the 30-day advance notice period. Refer to 5 CFR 752.604(b).

Appointee review and response. The documentary evidence used by the agency to support a disciplinary action must be made available for review by the appointee or a representative or designated physician, as applicable. An appointee in an active duty status must be given a reasonable amount of official time to review the documentary evidence and prepare a response. The agency official designated to hear the oral reply must be one who has authority either to make or to recommend a final decision on the proposed action.

Appointee representative. The appointee is entitled to be represented by an attorney or other representative. The agency may, under certain circumstances, disallow an appointee’s choice of representative. This may occur when the appointee’s choice would result in a conflict of interest. In addition, if the proposed representative is an agency employee, the agency may disallow the choice when that employee’s assumption of the representational responsibilities would give rise to unreasonable costs, or undue interruption of priority work assignments.

Agency review of medical information. When medical information is supplied by the appointee, the agency may, if authorized,

• require a medical examination under 5 CFR 339.301, or
• offer a medical examination in accordance with 5 CFR 339.302.

If the appointee has the requisite years of service under CSRS or FERS, the agency must provide information concerning disability retirement. All of these procedural requirements are contained in 5 CFR 752.604. It is contemplated these actions would be taken in consultation with agency legal counsel.

Agency decision. In arriving at a decision, the agency shall consider only the reasons specified in the advance notice and any written and/or oral response thereto by the appointee or a representative.

Notice of decision. The agency must give the appointee a notice of decision that:

• states the reasons for the agency’s decision to take the removal or suspension action—the notice should indicate the agency's decision on each of the reasons specified in the advance notice;
• shows the effective date of the removal or the duration and effective dates of the suspension except as provided for in the above paragraph on exceptions, the effective date may not be less than 30 calendar days from the date of the advance notice);
• advises the appointee of the right of appeal to the Merit Systems Protection Board (the notice should indicate the time limit for making an appeal and the MSPB office to which the appeal should be sent); and
• is delivered to the appointee at or before the time the action will be effective.

Imposing a less severe penalty. After consideration of the appointee’s response, an agency may decide to substitute a less severe penalty. The substitute penalty may be a suspension for more than 14 days or a letter of reprimand. As provided in 5 CFR 752.601(b), an agency may not suspend a senior executive for 14 days or less. The agency’s decision to mitigate the penalty should be included in the notice of decision given the appointee.

120-Day Moratorium

The removal of a career SES appointee from Federal service pursuant to 5 CFR 752.601-.606, is not subject to the 120-day moratorium.

Placement

An appointee removed from the SES under 5 CFR 752.601-.606, is not entitled to placement in a position outside the SES.

Further, there is no authority for an agency to move the appointee directly from the SES to a non-SES position. However, following the action removing the appointee from the Federal service, an agency may subsequently as a separate action appoint the individual to a position outside the SES for which eligible.

Appeals

Removal or suspension from the SES under 5 CFR 752.601-.606, is appealable to the MSPB under 5 U.S.C. 7701.

Under 5 U.S.C. 7701(b)(3), the Board has the authority to mitigate an adverse action penalty of a career SES appointee (e.g., change a removal to a suspension or change a 30-day suspension to 15 days). The Board’s policy on mitigation is addressed through case law [e.g., Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981)]. Generally, the Board will review a penalty only to determine if the agency conscientiously considered all the relevant aggravating and mitigating factors and exercised management discretion within tolerable limits of reasonableness. The agency should be able to show that the penalty was appropriate and reasonable under the circumstances. The Board has indicated that it may review a penalty to determine whether it is clearly excessive, disproportionate to the sustained charge, or arbitrary, capricious, or unreasonable.

Removal and Suspension of Noncareer and Limited Appointees and Reemployed Annuitants

Statute: 5 U.S.C. 3592(c)

Regulations: 5 CFR Part 359, Subpart I, Part 317, Subpart F, and Part 752, Subpart F

This section covers the removal and suspension from the SES of noncareer appointees, limited emergency appointees, limited appointees, and reemployed annuitants holding any type of appointment under the SES. A reemployed annuitant serves at the pleasure of the appointing authority whether holding a career, noncareer, or limited appointment.

Reemployed annuitants. As noted above, in this chapter the term “reemployed annuitant” is used consistent with the definition in 5 CFR 210.102 to refer solely to an annuitant who is reemployed and continues to receive an annuity from the Civil Service Retirement and Disability Fund. Removal of a reemployed annuitant (so defined) is effected under 5 CFR 359.901-.902, because he or she serves at the pleasure of the appointing authority. In general, an annuitant who is reemployed but does not receive an annuity is subject to the same procedures that apply to other SES members based upon the type of appointment held and, if a career appointee, based upon whether serving a probationary period.

Limited appointees who were covered by 5 U.S.C. 7511 immediately before SES appointments are covered by 5 CFR 752 in disciplinary cases. Removal and suspension of these limited appointees is discussed in the previous section on disciplinary removals.

Removal

Notice. An individual covered by this section can be removed at any time. Removal is effected under 5 CFR 359.901-.902. The agency must give the appointee a written notice at least one day prior to the effective date of the removal and the notice must show the effective date of the removal. The notice should be given on a workday for the employee and not be effective on a non-workday (i.e., Saturday, Sunday, or holiday), unless there is at least one intervening workday following the day on which the notice was given. The agency may include a statement of the reason for the action, but it is optional.

Expiration of appointment. A limited appointment must be terminated when the appointment expires, or when the employee completes the maximum period of service permitted under law. The termination is processed as prescribed in the material on noncareer and limited appointments in Chapter 3 and not as a removal.

Placement. The appointee is not entitled to placement in a position outside the SES, except as provided in the material on special conditions regarding limited appointments in Chapter 3.

Suspension

The law does not specify procedural requirements regarding the suspension for disciplinary reasons of appointees covered by this section. Thus, an agency may suspend these appointees under whatever procedures it establishes.

120-Day Moratorium

A removal or suspension covered by this section is not subject to the 120-day moratorium.

Appeals

A removal or suspension covered by this section is not appealable to the Merit Systems Protection Board.